CHINA SHANSHUI CEMENT GROUP LTD v. NG SAU MAN CLIFFORD

HCA 2518/2017

[2020] HKCFI 2677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2518 OF 2017

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DECISION

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The application

1.  The substantive action herein has been withdrawn by a Consent Order of 20 March 2018 (the “Consent Order”).  Parties however could not agree on the issue of costs. This is the application by the Plaintiff (“P”) for costs of the action.

2.  P’s application is supported by the 1^st and 2^nd affirmations of its solicitors Mr Keith Ho (“KH/1” and “KH/2” respectively) and Mr David Yen (“Yen/Aff”).  The Defendant (“D”) has filed his own affirmation in opposition (“D/Aff”).

3.  Mr Patrick Fung SC appears for P.  Mr Lawrence Ng and Mr Raymond Chu appear for D.

Factual background

4.  This case is related to the line of cases concerning the disputes over the shareholding and control of P and China Shanshui Investment Company Limited.

5.  The shares in P have since 4 July 2008 been listed for trading on the main board of the Stock Exchange of Hong Kong.  Trading has been suspended since about 16 April 2015.

6.  D is a solicitor and a partner in a law firm called Zhong Lun Law Firm (“ZLLF”).

7.  ZLLF had been retained by Asia Cement Corporation (“ACC”) and its subsidiaries as their legal advisers.  ACC and its subsidiaries have been a substantial shareholder of P.

8.  D has never been retained by P as its legal adviser.

9.  Ms Wu Ling‑ling (“Ms Wu”) was on 14 October 2015 appointed as an executor director of P.  After she had been so appointed, she also retained ZLLF (represented by D) to advise her from time to time as to matters arising out of her positon as an executor director of P.

10.  On 3 November 2017 P, took out the Writ herein with Statement of Claim indorsed.  Both were amended on 22 January 2018 (the “Amended SOC”).

11.  P’s case against D was as follows:

(a) In or about November 2015, P conducted an investigation pursuant to s 329 of the Securities and Futures Ordinance, Cap 571 (“SFO”, and the “Section 329 Investigation”);

(b) During an EGM of P on 1 December 2015, the then existing directors on P’s board were removed as directors (the “Removed Board”);

(c) After the removal of the Removed Board, misdeeds on their part were discovered, which subsequently formed the subject matter of HCA 2880 of 2015;

(d) At §9 of the Amended SOC, P pleaded that:

“ The information collected and the documents created in preparation therefor and in the conduct thereof (‘Confidential Materials’) are and were confidential in nature.”

(e) D participated actively in the deliberations of the Removed Board in the Section 329 Investigation and came into possession of all or part of the Confidential Materials belonging to P;

(f) P averred that until after discovery, it was not able to specify the extent of the Confidential Materials which D had come into possession of.  At §§17(1), (3), (5) and (6) of the Amended SOC, P identified, pending discovery, certain emails and documents which it averred D had received (the “Documents”);

(g) D knew or must have known or should have known that the Confidential Materials were confidential in nature and that they were provided by the Removed Board to D in breach of confidence [§18];

(h) P wanted to know what Confidential Materials D had and whether he had disseminated it to third parties;

(i) Pre‑action requests from P to D for answers were not met;

(j) P hence on 3 November 2017 took out the Writ herein;

(k) In the Prayer, P sought:

“ (1) An order that [D] do forthwith inform [P] as to what Confidential Materials he has been supplied by [P];

(2) An order that [D] do forthwith inform [P] as to whether such Confidential Materials and/or any duplicates or copies thereof have been disseminated by [D] and, if so, the details of such dissemination;

(3) An order that [D] do forthwith return to [P] such Confidential Materials and all duplicates or copies thereof insofar as they are in a form capable of being delivered up to [P].

(4) Damages (if any) to be assessed;

(5) Costs;

(6) Further or other relief.”

12.  On 14 February 2018, D filed his Defence:

(a) at §8(1), D pleaded his professional duty to Ms Wu to hold in strict confidence all information concerning matters in and arising out of her position as an executive director of P that had been acquired by D in the course of the professional relationship, and that there must not be any divulgence without Ms Wu’s authority;

(b) at §8(2) thereof, D avers that with the authorization of Ms Wu and all former directors of P, D lawfully and properly received the Documents;

(c) §8(3), that:

“ Ms Wu has not authorized [D] whether expressly or impliedly to disclose the Documents to any third party and has not whether expressly or impliedly waived the legal and professional duty owed by [D] to her to keep the Documents confidential.”

(d) §15, inter alia that:

“ Further or alternatively, and insofar as may be necessary, it is averred that the information relating to the Section 329 Investigation was all embodied in documents (i.e. emails and their attachments received by [D]) and that apart from the Documents, [D] does not have in his possession, custody or power any other document relating to the Section 329 Investigation.”

13.  P says that D has effectively complied with P’s pleaded requests[1].

14.  On 28 February 2018, P proposed (on a without prejudice save as to costs basis) the discontinuance of the action, with costs to be paid by D. 

15.  By letter of Messrs Kenneth Sit for D of 6 March 2018, D rejected the proposal[2]. D sought instead costs on an indemnity basis.  It was further said on behalf of D that:

“ If [P] is indeed keen to save costs and time, it will do well discontinuing this action immediately and leaving the question of costs open.”

16.  On 7 March 2018, P took out a summons for leave to discontinue the action.  It also sought costs (including those of the summons), to be taxed on a party and party basis.

17.  On 20 March 2018, the Consent Order was obtained.  The issue on costs was adjourned for argument, which subsequently came before this Court.

Parties’ stances 

18.  According to Mr Fung[3], P is entitled to costs on 3 independent grounds:

(a) P is the effective winner;

(b) D could and should have complied with P’s pre‑action requests for answers, and had he done so, it would not have been necessary for P to commence the present action; and

(c) insofar as merits are relevant (Mr Fung’s primary position is that they are not, and the point is only raised in response to D), P’s case is meritorious and P would have been successful.

19.  In gist, Mr Ng’s position is that[4]:

(a) the general rule is that a party discontinuing an action should bear the costs (the “General Rule”);

(b) To displace that General Rule, P has to show that had the action gone to trial, it would have a certainty of success, or that its case is so strong that it is bound to win;

(c) P has failed to displace the application of the General Rule, as P’s claim is defective and seriously flawed;

(d) D will seek indemnity costs because:

“ …[P’s] actions (when viewed in full context) are extraordinary:- there is sufficient evidence to show that [P’s] actions are nothing more than a thinly‑veiled attempt to vex [D] and a blatant fishing exercise such that [P] should [D’s] costs on an indemnity basis.”

Costs on discontinuance — the applicable legal approach

20.  Mr Fung accepts that a party discontinuing a claim should normally pay the costs of the opposite party.  He submits that, on the other hand, the discontinuing party is entitled to costs if it is the effective winner.  He calls it the effective winner principle.  Mr Fung has referred me to quite a number of authorities, which include Perrine Chamonix Ltd v Star League Ltd, unrep, HCA 1139/2017, 13 September 2017, per Deputy Judge William Wong SC at §24, Re Lucky Ford Industrial Ltd [2013] 3 HKLRD 550, per Harris J at §§8‑15, Re Chinese United Establishments Ltd, unrep, HCCW 391/1994, 5 October 1995, per Rogers J (as he then was) at §8, Chinese United Establishment Ltd v Nice Gain Enterprises Ltd, unrep, CACV 214/1995, 24 April 1996 at §§13 and 15, Pang Chun Kwong v Pang Hang Lau, unrep, HCMP 2352/2012, 13 December 2013, per A Chung J at §23, and Graham M Morley v Kwan Wo San, unrep, HCA 4366/2003, 30 December 2009, per Recorder Jat SC at §§24‑36. 

21.  In Re Lucky Ford, a winding up order was made upon an opposing creditor withdrawing its objection to the petition.  On the question of costs, which the petitioner sought, Harris J observed that:

“ 14. In my view having regard to O.1A r.1 the correct approach to determining costs in cases which do not involve the court granting substantive relief is for the court first to consider the terms of settlement and assess whether the petitioner has obtained substantially what he sought in his petition. If he did it will not be necessary or appropriate for the court to consider evidence and arguments directed to the merits of the case and whether or not the petitioner would have been successful if the petition had gone to trial. The petitioner will be treated as having been successful and entitled to his costs.

15. There may be cases in which it is not clear from the terms of settlement whether it can fairly be said that the petitioner has been substantially successful.  In such cases the court will have to determine whether it is probable that the petitioner would have been substantially successful.  This may require a consideration of the merits of the case, but this process should be as economical as is consistent with the court’s duty to decide the issue fairly.”

22.  In the subsequent case of Re Jessop & Baird (Hong Kong) Limited, unrep, HCCW 352/2016, 28 November 2017, Harris J observed that:

“ 5. The petitioner … recognises that my decision in Re Lucky Ford Industrial Ltd … paras 14 to 15, establishes that as a general rule where an applicant obtains, by agreement prior to the hearing of an application, substantially what by the application he sought, costs will follow the event, and the court will not be concerned to explore the circumstances in which the respondent to the application came to agree to it when considering who should pay the costs.

  …

 8. There will always be unusual cases which may justify a departure from the approach which I described in Re Lucky Ford, however, such cases will be rare and practitioners should be slow, rather than quick, to seek out reasons which may militate against adopting the straightforward and cost effective approach I described in Re Lucky Ford.”

23.  In Perrine Chamonix, Deputy Judge William SC, having cited Re Lucky Ford, observed at §25 that:

“ The court does not adopt a mechanical approach. The court looks into the substance and the merits of an application. If, but for a plaintiff’s or an applicant’s application, he or she would not have obtained the relief he or she seeks in a writ of summons or a summons, then he or she is in effect the substantive winner of the case. The fact that a defendant consents to the claims by a plaintiff or an applicant which renders it unnecessary for the plaintiff or the applicant to continue the action or summons should not be a reason for denying the plaintiff or the applicant his or her costs. This approach was also adopted by the Court of Appeal in Re Chinese United Establishment Ltd unreported, CACV 214/1995, 24 April 1996 at §§13 and 15 …”

24.  In the earlier case of Famous Marvel Co Ltd v Conversant Group Ltd, unrep, HCA 2153/2009, 29 October 2012, at §22 (referred to by Harris J in Re Lucky Ford at §10), Au‑Yeung J observed that in deciding costs in cases of settlement, a broad brush approach can be taken by referring to all matters already laid before the Court, and that the objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost.

25.  Mr Ng submits that a discontinuing plaintiff has to displace the General Rule that the defendant is entitled to costs of the action, and that for that General Rule to be displaced, the discontinuing plaintiff has to show that had the action gone to trial, it would have a “certainty of success” or that his action is “so strong that he is bound to win”. 

26.  Mr Ng relies on Ta Tung China & Arts Ltd v Fontana Restaurant Ltd [1999] 1 HKLRD 404:

(a) Ta Tung China had unusual facts;

(b) The plaintiff in about 1990 started an action against the defendants for price of certain goods.  The 1^st and 2^nd defendants denied liability.  The 3^rd defendant in his defence admitted liability.  The goods were subsequently in 1992 released and payment accepted by the plaintiff.  No further steps were taken in relation to the other defendants, or indeed about the action.  It just pended there;

(c) In 1997, the defendants sought to revive the action, on the basis that the 1^st and 2^nd defendants wanted their costs.  The parties, knowing that the issues on liability had by then become academic, took out an application with the intention of getting orders for direction so that a judge could determine the question of liability for costs alone.  Such directions were subsequently indeed given.  No order was sought or made for the disposal of the action;

(d) The summons with the benefit of the directions then came for hearing before Findlay J.  The learned Judge raised the question as to whether these proceedings on costs alone were misconceived.  Having considered the matter Findlay J dismissed the summons.  He determined that it was not appropriate to deal with the costs of the litigation between the parties without some determination of the proceedings;

(e) Against that dismissal of the summons an appeal was brought;

(f) In dismissing the appeal, Mortimer VP observed at 406H to 407C that:

“It is recognised by Mr Robert Tang SC who appears for the plaintiff that the course suggested is unusual. He has described it as ‘a third course’ which, he submits, is in the circumstances of this case not only sensible and practical but would lead to a saving of costs.

There is no doubt that there are two ways in which a party can have the matter of costs determined if the liability issues in the action have become academic. First, he may apply for leave to discontinue the action and ask for the costs to be determined. In those circumstances, although it would not be impossible for the plaintiff to ask for an order for the payment of the costs by the party against whom he is discontinuing, it undoubtedly would be most unusual. For my part, I have never come across such a case.

The second way in which this issue can be resolved is for the parties to go to trial and to have the costs dealt with after trial. Of course, the issues on such a trial would be extremely limited.

Mr Tang submits that the third way is to make an order such as was made by Yeung J and have the costs liability resolved without having the action disposed of.

For my part, I think that is impossible. It puts the cart before the horse for at the end of the costs issue, the action is still alive if the parties have not agreed otherwise. The action still must be disposed of. On those grounds, if no other, it is my opinion that this appeal must be dismissed. The order which Yeung J was persuaded to make was one which it was not open to him to make. He had no jurisdiction to make it. For my part, it was misconceived.” (emphasis added)

(g) Mr Ng relies heavily on the underlined part of the passages cited above;

(h) But properly understood, the issue before the Court of Appeal in Ta Tung China was whether that “third course” of deciding the question of liability for costs alone without some determination of the proceedings was possible.  The Court of Appeal held that it was not.  There was otherwise no discussion on the circumstances in which a discontinuing plaintiff may be awarded costs, or whether the fact that he has obtained substantially what he had sought would qualify the case as one of those “unusual” ones in which he may get costs;

(i) Given the context in which the underlined observations were made in Ta Tung China, I agree with Recorder Jat SC[5] that Ta Tung China does not purport to limit the way in which the court may approach questions of costs where the substantive issues between the parties have been resolved.

27.  Mr Ng seeks to rely also on Leung Yuet Ching v Leung Yuet Kuen [2001] 4 HKC 562 and Anmol Kumar Sawlani v Yeshma Gobindram Sawlani, unrep, HCA 2231/2011, 9 May 2013:

(a) In Leung Yuet Ching, Deputy Judge Muttrie observed at p 567H to 568A that:

“ However, the general rule remains that the defendant should have his costs on the discontinuance and there must be good reasons to depart from that general rule. To award costs to a plaintiff would be to depart a very long way from it. As I see it this could only happen where the plaintiff’s case is certain of success and the discontinuance comes about because the defendant accepts that. Certainty of success means, in my view, that the defence, if filed, would be open to striking out under O 18 r 19 of the Rules of the High Court …”

(b) However, and with respect, no authorities appear to have been cited to the learned Deputy Judge in support of that threshold of certainty of success, which Mr Ng seeks to rely on.  It is of interest to note that the learned Deputy Judge appears to hold the view that even that threshold is too low, as he went on immediately to say that:

“ I put forward this proposition with some diffidence, remembering that even in Burgess v Hills where the defendant had accepted that the plaintiff’s case against him was justified even before the plaintiff applied for the injunction, it was held that the only way for the plaintiff to get his costs was to bring the action to trial for the purpose of doing so.”

(c) It should further be noted that earlier in the judgment, the learned Deputy Judge acknowledged the discretionary nature of the court’s power on costs when he observed at p 566B that:

“ Kaplan J in Inchroy Credit Corp Ltd v Cheung Man Cheung [1992] 1 HKLR 120 took the view that the general rule was not only applicable where the discontinuance amounted to defeat, or acknowledgment of likely defeat and that the court had a complete discretion to do justice between the parties. Keith J (as he then was) took the same view in Trend Publishing (HK) Ltd v Vivien Chan & Co (a firm) [1996] 3 HKC 433.”

(d) I note also that the learned Deputy Judge was in Leung Yuet Ching focusing upon the appropriate merit threshold which a withdrawing plaintiff should be required to show in order to displace the General Rule.  There was no consideration as to whether, irrespective of the merits of the discontinuing plaintiff’s case, the General Rule may be displaced if he has obtained substantially what he had sought;

(e) Mr Ng also relies on Anmol Kumar Sawlani wherein Mr Recorder Shieh SC at §15 endorsed the view expressed by Deputy Judge Muttrie in Leung Yuet Ching.  However, the observations made by the learned Recorder are obiter, as he immediately afterwards said at §16 that in that case:

“ At the end of the day, the questions as to whether or not the plaintiff should pay the defendant’s costs on discontinuing, or the appropriate merit threshold that the plaintiff should be required to achieve in order to be able to reverse the normal starting point, have been rendered academic, because the defendant had, in his words, ‘generously’ agreed by a letter dated 31 October to pay the plaintiff’s costs on discontinuance, but not on an indemnity basis and not agreeable to any part of the taxed off costs being borne by the estate. But in the face of that, the plaintiff took out his summons for discontinuance seeking costs.”

28.  Mr Ng sought to distinguish the Re Lucky Ford line of cases by submitting that they related to settlement as opposed withdrawal.  I do not accept that submission.  In my view, discontinuation, withdrawal or settlement of proceedings, where the merits of the underlying claims have not been substantively determined, potentially give rise to similar considerations on costs.  Further, as Mr Fung has pointed out[6], in Perrine Chamonix and Pang Chun Kwong, which involved respectively discontinuation and withdrawal, the effective winner principle was applied.

29.  Having considered the authorities cited before me, I accept Mr Fung’s submissions on the law.  I apply the effective winner principle.  I apply also the observations made by Au‑Yeung J in Famous Marvel that a broad brush approach can be taken by referring to all matters already laid before the Court, and that the objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost.

Discussion

30.  Chronologically, I consider first of all parties’ pre‑action conduct.

31.  Mr Fung’s submissions is that D could and should have complied with P’s pre‑action requests for answers, and had he done so, it would not have been necessary for P to commence the present action.

32.  To consider that submissions, one needs to consider what P’s pre‑action requests were.

33.  On 17 July 2017, Eversheds, P’s then legal advisers, wrote to ZLLF and made the following demands:

“ We therefore demand that your firm:

1. return to the [P] all documents which you have received or correspondence (including emails) that you are copied on during or in connection with [the Section 329 Investigation], delete and destroy such documents (including from any electronic data storage device or server) and undertake not to use, disclose, or allow to be used or disclosed, any such documents or copies thereof;

2. to the extent that you created or procured the creation of any document in connection with [the Section 329 Investigation], that you provide a list of all such documents, deliver the documents to [P], delete and destroy such documents (including from any electronic data storage device or server) and undertake not to use, disclose, or allow to be used or disclosed, any such documents or copies thereof; and

3. except for any information which is publicly available, if you have sent or disclosed, or allowed to be sent or disclosed, any document mentioned in paragraph ‘1’ and ‘2’ above to any persons, list out their identities, contact details and the mode of disclosure.”

34.  Those demands should be compared with the prayer pleaded in the Amended SOC.  They are not the same as the pleaded relief.  I note in particular that the demands covered “any document in connection with the Section 329 Investigation”, which was wide and imprecise.  That is in contrast with the meaning of the term “Confidential Materials” pleaded at §9 of the ASOC.

35.  In reply, ZLLF said in its letter of 20 July 2017 that:

“ Given that (a) our firm has a legal and professional duty to Ms Wu to hold in strict confidence all information acquired in the course of the professional relationship … and (b) our firm’s communication with Ms Wu (including but not limited to any information in connection with the [Section 329 Investigation] provided to our firm for the purpose of obtaining legal advice) were and are subject to legal professional privilege and Ms Wu has never waived and does not waive such privilege, we are unable to consider your demands as stated in Your Letter.”

36.  In developing his submissions that D should have complied with P’s pre‑action requests, Mr Fung submits that:

“ … on 17 July 2017, [P] requested [D] to, inter alia, ‘provide a list of all such documents’, and to disclose whether the materials had been disseminated to third parties. This is essentially the same information as claimed in prayers (1) and (2) of the [Amended SOC].”

37.  I do not accept that submission.  P did not simply ask for a list of the materials and whether they had been disseminated.  As I have observed above, the demands made on 17 July 2017 related to “any document in connection with the Section 329 Investigation”, and, in respect of those documents, identities of any recipients, their contact details and mode of disclosure.  They were different from those subsequently claimed in the Amended SOC.   They were much wider, and lacked the specificity as those framed in the Amended SOC.

38.  There was no further pre‑action request after17 July 2017.

39.  In the light of the wide and imprecise scope of the pre‑action demands, and set against the context of legal professional privilege, I do not find it unreasonable for D not to have acceded to them.

40.  Further, given the differences between the pre‑action demands and the pleaded relief, the fact that D has subsequently pleaded what he has may not be taken to mean that D should have acceded to the pre‑action requests. 

41.  Then Mr Fung submits that P was the effective winner of the action.  This is in fact Mr Fung’s main argument.

42.  I have set out above §§8(1), 8(3) and 15 of the Defence which Mr Fung principally relied upon in developing this limb of his submissions.

43.  Mr Fung further, relying on Hachette Filipacchi Presse v Kador Ltd [1995] 1 HKC 352, submits that D could have provided the requested information before the present action was commenced, but decided only to do so when he filed his Defence. 

44.  I have explained why I do not accept that D should have acceded to the pre‑action requests.

45.  Mr Fung submits[7] as his fallback position that there should be an order that there be no order as to costs because D has made the action academic by pleading what he has in the Defence.

46.  In refuting this limb of Mr Fung’s arguments, Mr Ng offers a detailed and technical analysis on both the Amended SOC and Defence and submits to the effect that to displace the General Rule, P has to establish certainty of success, but that P’s cause of action (whether based on D having acted as a director of P or on breach of confidence) is fatally flawed and bound to fail, so that P’s argument based on it being the effective winner is baseless, that whether P is the effective winner is not even the proper question to ask, that P’s reliance on the effective winner principle is an attempt to put the cart before the horse as P was not entitled to seek the relief to start with, and that bearing in mind the totality of the contents of the Defence, P’s reliance upon §§8(1), 8(3) and 15 of the Defence in support of its case that it was the effective winner in any event amounts to cherry‑picking.

47.  It appears to me that the main reason why Mr Ng embarks upon that analysis is to support his proposition that P has failed to demonstrate certainty of success so as to displace the General Rule.  I have explained why in my view whether P was the effective winner is the correct question to ask.  I do not find that analysis helpful.  Mr Fung has himself on a number of occasions reiterated his primary position that merits are not relevant.  This application for costs in my view need not, and perhaps even ought not to, be permitted to be turned into a complicated debate on the law on breach of confidence and legal professional privilege.  

48.  When approaching costs in circumstances of the present nature, the court does not adopt a mechanical approach.  The court looks at the substance and the merits of the application.

49.  I have also recited the observations made by Au‑Yeung J in Famous Marvel that in deciding costs in cases of settlement (which in my view equally applicable to cases of withdrawal), a broad brush approach can be taken by referring to all matters already laid before the Court, and that the objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost.

50.  I have set out my view that P had prevaricated on its pre‑action demands and its claims pleaded in the Amended SOC.

51.  P’s commencement of the present action should therefore be viewed against that background.  At §3(b) of his submissions, Mr Fung submits that P had no choice but to commence this action.  I do not accept that submission.

52.  But on the other hand, P has obtained from the Defence in effect confirmation from D as to what he had been provided with (namely the Documents) and that “Ms Wu has not authorized [D] whether expressly or impliedly to disclose the Documents to any third party and has not whether expressly or implied waived the legal and professional duty owed by [D] to her to keep the Documents confidential”.

53.  To the extent of §§(1), (2) and (3) of the Prayer, I accept Mr Fung’s submission that as a result of the Defence, the action has become academic.

54.  P has reserved it right to claim damages, and sought (at §4 of the Prayer) “Damages (if any) to be assessed”.

55.  As things turned out, P obtained no damages.

56.  In so far as D’s concerned, while what P claimed in the Amended SOC was not exactly what had been demanded before the action, D could have, had it chosen to do so to, informed P at the pre‑action stage what it subsequently decided to plead in the Defence.  D only did so in the face of a writ and under protest.

57.  But on the other hand, and as Mr Ng submits[8], D should not be faulted for put in a defence.  He did the reasonable and sensible thing of informing P what he had been provided with.  I am not concerned with whether his client had waived her privilege so as to enable him to do so, which was another issue which was raised and flared up during the hearing.

58.  In all the circumstances as explained above, my view is that the overall justice is best achieved by ordering that there be no order as to costs in so far as the action is concerned. 

59.  In my view, this position of no order as to costs applies also to the costs of the present summons and application.  The reality is that no party has emerged as the overall successful party in so far as this summons is concerned.

60.  For the sake of completeness, I express my view that there is insufficient evidence before me that P’s action was an “attempt to vex D” or that it was “a blatant fishing exercise”.  I see in any event no basis for indemnity costs against P.

Overall disposition

61.  I order that there be no order as to costs in the action.  I make a costs order nisi that there be no order as to costs in so far as this summons is concerned.  Any application for variation may be made by written submissions within 21 days of the date hereby, response within 14 days of receipt, and reply within 7 days.  Any such application will be dealt with on the papers.