L, HY v. M, ERG

FCMP 32/2018

[2021] HKFC 60

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS

NO. 32 OF 2018

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R U L I N G

(Costs)

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Introduction

1.  This Ruling arises out of a summons issued by the Applicant mother, that the costs order nisi made in the judgment from this court dated the 6 December 2019, be varied to there being no order as to costs. (See her summons dated the 10 November 2020).  

2.  In this judgment, the proceedings in Hong Kong were stayed in favour of proposed proceedings in the New York Family Court. The mother did not seek leave to appeal this judgment. On that occasion I made a costs order as follows:

Conclusion   

19. In such circumstances an order shall be made in terms of paragraph 1 of the father’s summons dated the 3 June 2019. I can see no reason why costs should not follow the event in the normal way. Thus there shall be an order nisi to be made absolute in 14 day’s time that the Applicant mother shall pay the Respondent father’s costs of and arising out of the summons dated the 3 June 2019 on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

3.  Prior to that I had also handed down a judgment dated the 12 October 2018, where I had dealt with a number of ancillary issues including, inter alia, interim maintenance for the minor child. On that occasion I had ordered that the father do pay the mother’s costs on a party and party basis to be taxed if not agreed. As with the current order, this costs order was also made on an order nisi basis. It was not challenged by either side and therefore this order continues to stand.

4.  As far as I am aware there has been no subsequent order made by the New York Family Court and thus the father continues to be bound by the interim order from this court. The mother says that the father has only submitted a draft of his proposed application in New York and that to date none has been served on her. This hiatus may have been caused, in part, by the global pandemic, but I have no further information on this point, or indeed on anything else. It is of note that neither side has chosen to file any submission, although they had both been given leave to do so within 28 days of the last affidavit being filed.     

The law

5.  The relevant law is not in dispute and can be found at Order 62 RHC on costs. To summarize it is accepted that the issue of costs lies in the discretion of the court and that costs are normally expected to follow the event.  This presumption is more easily displaced in family proceedings than in others. In exercising the courts discretion reference can also be made to a number of factors as set out in Order 62 r 5 including, inter alia, any without prejudice save as to costs letters, the litigation conduct of the parties and whether or not one or other of the parties unreasonably refused to mediate/negotiate.

6.  In this instance it is of note that I have been referred to several e-mails concerning the settlement of the costs issue. I have seen nothing on the substantive issue arising out of the stay application itself. Although the mother alleges that the father unreasonably refused to negotiate/mediate, she offers no further evidence in support of this rather bold assertion. The father for his part maintains that the mother has conducted the case unreasonably.   

Discussion

7.  This is a very high conflict case concerning a couple who never married, but who had one child together, U, who is now 11 ½ years old. Reference may be made to the background of this case in the judgments referred to above and dated the 12 October 2018 and the 6 December 2019 respectively.

8.  The mother’s affidavits are broad ranging and are not wholly on point. She complains about many things including the father’s non-compliance with the Hong Kong court order. In the final paragraph of her first affidavit dated the 23 October 2020 she states as follows:

26.  Under the above described circumstances, since the Father committed fraud upon the Court and party, I respectfully ask this Honourable Court to reverse the Cost Order to make it no cost reward to the Father, and direct the Father to pay my cost of legal fees, traveling, lodging and child minding for attending the hearing. I also respectively ask this Court to issue an order for an Interim enforcement and secure a lien over the Father’s Hong Kong and Switzerland bank accounts so that the Interim Child Maintenance and arrears can be satisfied while parties seek final adjudication of this case in a New York or another court in order to maintain U during this terrible pandemic circumstances.

It is not clear how she expects the court to make an order for interim enforcement or how a lien might be secured over the father’s Hong Kong and Swiss bank accounts, especially given the fact that she has not made any application to that effect. This theme is reiterated again in her 9^th affidavit namely that she asks the court to make no order as to costs, but at the same time she seemingly asks for an expense or costs order in her favour.   

9.  In the father’s affidavit, Ms Liang on behalf of the father attaches an e-mail exchange dated the 5 and 6 February 2020 as follows:

From: SL

Sent: Wednesday, February 05, 2020 11:43 AM

To: ‘H’

Subject: RE: FCMP 32/2018

Entirely without prejudice,

You can make me an offer

The costs order in your favour

Is not more than 50,000

Pls set it out for our consideration

And we can deal with it by set off

Subject to our client’s agreement.

From: H

Sent: Wednesday, February 05, 2020 11:20 AM

To: SL

Cc: ME

Subject: Re: FCMP 32/2018

Dear Ms. L:

I have been trying to reach the HKFC and apparently they are closed and only urgent cases are being taken care of at this time. As a matter of fact, a lot of government agencies seem to be closed in HK due to the corona virus.

I will continue to try to get in touch with the HKFC to seek correction to my Summons. However, in the meantime, if your client is open for a settlement discussion of the cost issue, I am open to consider. As you know, I also need to put a cost calculation to your client. In order to do so, we both need to spend on a tax draftsman. I suggest we don't incur more money on this process. We can simply compare the cost and work out a settlement. Your client also knows that I am living on limited means and will have to pay a hefty tuition this year if I am accepted for my graduate legal studies. Even if I am taxed with a heavy legal bill, I will still need to seek legal redress for that. Let alone to say I still have not paid off my pending legal bills with Withers.

Please let me know your thoughts.

Regards,

HL

It seems to me that this would have been an eminently sensible way to proceed – i.e. to consider both bills and to off set one against the other. Unfortunately, this did not occur. The parties were unable to come to terms and the father has had his bill of costs drawn up by a law costs draftsman. His application in that regard has now been adjourned pending the outcome of this summons.

Decision

10.  In so far as this application is concerned it seems to me that the mother has not been able to identify any proper basis upon which I can vary the costs order nisi. I accept, as pointed out by Ms Liang, that the mother did not agree, at any point, to the application made by the father, which meant that there was no option but for there to be a full hearing on the matter. Although the mother says that the father did not agree to mediate or to negotiate with her, she has not provided any evidence in support of this assertion. The other issues raised by her do not affect the discreet point to be decided here – namely how should the issue of costs, arising out of the judgment dated the 6 December 2019, be determined? To that end it is also of note that although the mother was often acting in person, she is also a lawyer by training and she is currently represented by a well-known firm of solicitors, although that may not be for very much longer.

11.  In such circumstances I really have no alternative but to exercise my discretion and to confirm the costs order nisi. The mother’s summons dated 10 November 2020 shall be correspondingly dismissed. Costs of this application shall also follow the event in the normal way, in that the mother shall pay the father the costs of and arising out of her summons dated the 10 November 2020, on a party and party basis to be taxed if not agreed.