XCHRX DESMOND KEANE SC v. THE DIRECTOR OF LEGAL AID

HCAL 109/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

PROCEEDINGS NO.109 OF 1999

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JUDGMENT ON COSTS

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1. On 8 February 2000, this court handed down its judgment in this action. The effect of that judgment is that the application taken out by Mr Keane SC, the applicant, was dismissed. The final sentence of the judgment reads thus :-

"Should it be necessary to canvass the issue of costs, I will hear counsel in due course."

2. On the same day, namely 8 February 2000, the applicant lodged his Notice of Appeal. One of the Orders sought by that notice (at paragraph 3 thereof) is :-

"That the Respondent do pay to the applicant his costs of and incidental to this appeal and in the court below, to be taxed if not agreed."

3. Also on the same day, 8 February, the applicant filed the engrossed Order consequent on the judgment of the court. This Order recited :-

" IT IS ORDERED THAT the Application for Judicial Review by the Applicant be dismissed."

4. There was then a brief hiatus. The next procedural event was that the Director of Legal Aid, the respondent to Mr Keane's application for judicial review, took out his own summons, dated 7 March 2000, the relief sought therein solely being that :-

"the Applicant do pay the Respondent's costs of this action, to be taxed if not agreed."

5. I have no doubt that this summons, as indeed Mr Cooney submits, was in response to the final sentence of the judgment as delivered by this court.

6. In turn, the Director's application for the costs of the action spawned Mr Keane's summons of three days later, namely 10 March 2000, which seeks to strike out the Director's summons, and also seeks the costs of and occasioned by that latter summons. The grounds of that summons are twofold and are specified thus :-

"1. That the only Court currently having jurisdiction in relation to High Court Constitutional and Administrative Law Proceedings No. 109 of 1999 is the Court of Appeal, in Civil Appeal No. 49 of 2000. (On appeal from HCAL No. 109 of 1999)

2. That the Court of First Instance has no jurisdiction to entertain the Respondent's Costs application, and is functus officio."

7. I note at this stage, as Mr Keane has helpfully pointed out, that the Court of Appeal is currently involved in procedural matters relating to the forthcoming appeal. In fact, on 21 March 2000, but three days ago, Keith JA in chambers heard and decided an application by Mr Keane to amend the original Notice of Application in this matter. Mr Keane was successful in that application, which was opposed. Mr Keane also tells me that the appeal, which was lodged by the Notice of Appeal of 8 February, has now been formally entered in the Lists, and is presently scheduled to be heard by their Lordships in the Court of Appeal on 25 and 26 May. Indeed, Mr Keane makes the point that the Director of Legal Aid, the respondent to that appeal, actively participated in the setting down of the appeal and joined in that application.

8. Be that as it may. Argument on the matter this morning, namely, the respondent's application for his costs of the hearing at first instance and of Mr Keane's cross-application to strike out, was prefaced by a further application by Mr Cooney to amend his own summons for costs. He wished to insert two further paragraphs in that summons, the second of which reads :-

"2. Alternatively, that the Court Order dated 8th February 2000 be corrected under the slip rule to include an Order that the parties be at liberty to apply in respect of costs."

Mr Keane did not oppose the slip rule application, although he did observe that he should have whatever costs were consequential thereon.

9. I do not think Mr Cooney's application was necessary at all, but since he chose to make it, I was required to deal with it, and I did so by granting him an order in terms. The reason I say that I do not think it was necessary is that I do not consider the terms of the Order, as engrossed on behalf of the applicant (although not, I think, by the applicant himself), is such as to preclude the Director from applying to this court for his costs. To the contrary. It is clear that it did not, although perhaps Mr Cooney felt that in this case 'belt and braces' should be the order of the day. In any event, as I have indicated, I granted an order in terms of his amendment, and since I cannot think that any costs were consequentially occasioned, I further made no order as to costs on that application.

10. That then left the jurisdictional debate as raised by Mr Keane. Mr Cooney simply says, not unreasonably, that the court had specifically left open the question of costs (which it had been hoped could be settled otherwise than by application), and he now wished this court to make a formal order in that regard.

11. Mr Keane SC says that this is not possible. He says that it is a matter of principle. His bald point is simply thus : the matter of costs in this court is an issue with which the Court of Appeal is presently possessed and accordingly this court no longer has jurisdiction; to expand on Mr Keane's rugby analogy, the ball has come out of the scrum and the three-quarters are now running with it. Mr Keane, who conducted this application with his usual good humour, says that he can find no authority on this issue, but maintains that it would be "a nonsense" to suggest that two courts may concurrently be seized with the same costs order. There was, he suggested, no authority on the point because no one had tried to do this before.

12. I certainly agree that, as a general principle, the Court of First Instance does not deal with matters presently the subject of the attention of the Court of Appeal. But I think, with respect, that there is a logical flaw in Mr Keane's argument. The Court of Appeal is not presently possessed of the determination by the first instance court of such costs order as is consequent upon the judgment of that first instance court. The equally bald point, if I may say so, is that the first instance court must decide where the costs should fall consequent upon its own judgment, and the Court of Appeal, if asked, then determines whether that is right or whether that is wrong. So that when Mr Keane points to the specific terms of his Notice of Appeal, and observes that one of the orders he seeks in the appeal as now lodged is that his costs below should be paid by the Director, I fail to see how this validates his jurisdiction submission; the usual precursor to the Court of Appeal's determination in that regard, amongst others, clearly is the existence of an actual costs order made by the court below. And until now, of course, no such costs order has been made.

13. Accordingly, if their Lordships in the Court of Appeal think that the judgment of this court in dismissing Mr Keane's application for judicial review be incorrect, it would normally follow that any consequential costs order as made in this court would also be varied. But it is not part of the Court of Appeal's usual function to decide the matters de novo which properly first should be decided at first instance, and I fail to see why the fact of the lodging and entry of an appeal can preclude the proper exercise of the lower court's jurisdiction as to costs. The Court of Appeal anticipates, when hearing an appeal, that all matters properly before the first instance court will have been determined, and it is that determination on all relevant issues which then forms the playing field for the Court of Appeal's own consideration of the matter.

14. Which brings me back to the arguments of this morning. All that this court is now doing, notwithstanding Mr Keane's protestations to the contrary, is to make orders necessarily ancillary to its primary decision, as reflected in the judgment, to dismiss the application for judicial review. There is no question of this court seeking to trespass upon the Court of Appeal's jurisdiction nor, to use Mr Keane's words, of the situation arising wherein "two courts are concurrently seized with the same matter". And that, it seems to me, must be an end of it.

15. Accordingly, the applicant's summons seeking to strike out the respondent's application for costs is dismissed.

[Counsel further address the court after a short adjournment]

16. On the substantive issue of the costs of this action, Mr Keane has nothing to say (although he does not consent to an order against him). Accordingly, at the end of the day the overall costs position is thus :-

(i) The respondent's application to amend his costs summons has been granted, with no order as to costs.

(ii) Mr Keane's application to strike out, for the reasons given herein before, is dismissed, again with no order as to costs.

(iii) The costs of and occasioned by the Director's application for costs pursuant to his summons as originally drawn, including the costs of this morning's hearing, are to be to the Director, the respondent herein, to be taxed if not agreed.

(iv) The costs of this action are to be paid by the applicant to the respondent, to be taxed if not agreed.

17. Shortly before the short adjournment granted to counsel to discuss certain outstanding issues, Mr Cooney informed the court that there were three outstanding costs orders which had been made by Hartman J earlier in this case. There were, as I understand it, two Orders of 13 September, and one of 24 September. In each instance, Hartman J had reserved the costs of those particular applications. In light of the agreement that has now been reached between Mr Cooney and Mr Keane, there is no need further to comment on those applications, and for present purposes I merely formally record that the existing order "costs reserved", as appearing on the face of each of the three Orders in question, now has been agreed by the parties to be consensually varied to read "no order as to costs" in each instance.

18. Doubtless in the fullness of time the Orders made today will be engrossed and, at that juncture, this court truly will be functus officio.

19. I thank Mr Keane and Mr Cooney for their assistance.