KO SIU LUEN, LOUISA AND OTHERS v. APPEAL TRIBUNAL (BUILDINGS)

HCAL 67/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 67 OF 2010

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JUDGMENT ON COSTS VARIATION

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1.  This is an application by both parties to vary the costs order nisi I granted back in November in my main judgment (11 November 2011), where I ordered that the applicants should have costs of the application as the applicants were successful in quashing the tribunal’s decision.

2.  For the applicants, one of their applications today is to say that the court should make it clear that it is the interested party (ie, the Building Authority) who should be responsible to pay the costs of the applicants, given that the tribunal, being the respondent, has not taken any active steps in the proceedings.

3.  Mr Chan for the Building Authority, after clarifying the position at the hearing, confirms that they are not disputing that the Building Authority should be the party primarily responsible for paying the costs if ordered.  However, insofar as their application to vary the costs order nisi is concerned,what the Building Authority would ask is that, given that the applicants had failed in a number of their grounds in this judicial review, the proper costs order, after looking at all the circumstances, should be that there should be no order as to costs.

4.  That is premised on the basis that (as Mr Chan contends) the interested party should have the costs of those unsuccessful grounds raised by the applicants, while the applicants should have only those costs in relation to the successful grounds that they have managed to find favour in this court.  Therefore, after setting off, the proper costs order should be no order as to costs.

5.  With respect to Mr Chan, I think the primary position, which he does not dispute, is still that the successful party should have the costs of the application, as costs should follow the event, unless and when there are justifications to show that some of the failed grounds should not have reasonably been raised and which have also taken up significant time of the hearing before the court.

6.  Insofar as that is concerned, that is a matter of a weighing exercise and a matter of judgment by looking at the various unsuccessful grounds raised in this case.

7.  On reflection, I think Mr Chan has some merits in suggesting that, insofar as the challenge in the judicial review was based on the grounds of the rigidity of the 2001 enforcement policy and the resultant fettering of the discretion in the implementation of that policy, these grounds had been unreasonably raised by the applicants.

8.  As I set out at paragraphs 29 to 32 of my main judgment, I rejected these grounds as being irrelevant to the judicial review against the tribunal decision, as the tribunal concluded in its decision that the alleged subject UBWs were not actionable under the 2001 enforcement policy.

9.  As such, I agree that these grounds should not have featured in this judicial review.

10.  Moreover, the evidence concerning the arguments relating to the rigidity of the enforcement policy that had been filed in support of the judicial review was not insignificant.  Substantive arguments had also been advanced by both sides on these grounds, both in the skeleton and in the hearing.  Insofar as these were concerned, I think that they had taken up significant preparation time by the parties and the court’s time in the hearing.  This had therefore been unreasonably and unnecessarily incurred.

11.  I therefore, in the exercise of discretion, would apportion some of the costs to these unreasonably and unnecessarily raised parts of the arguments for the purpose of seeking to quash the tribunal’s decision in the judicial review.

12.  Looking at all the circumstances, I think it is just to apportion that the applicants should not have one-fourth of the costs of the judicial review application.  So to that extent, I will vary my costs order nisi to the extent that three-quarters of the costs of the applicants of the judicial shall be borne by the Building Authority, to be taxed if not agreed.

13.  There is another application by the applicants in this application to vary the costs order nisi.  That is, Mr Ismail (for the applicants) advanced the argument to say that I should also substitute the costs order of the appeals before the tribunal by ordering that the appeals costs should be borne by the Building Authority for the purposes of those appeals.

14.  With respect to Mr Ismail, I doubt whether first of all I have a plain jurisdiction to deal with that in the present case within the context of variation of the costs order nisi of the judicial review.  But even if I had, this would be amounting to asking this court in the supervisory role to taking up the position of the tribunal to order costs in relation to the merits of the appeals, of which this court was not seized with.

15.  It is trite that in judicial review, the court will not substitute itself or step into the shoes of the deciding tribunal or the deciding authority in terms of determining the merits of a decision.  What Mr Ismail is asking this court to do now, is effectively asking to this court to substitute itself into the position of a tribunal and to decide whether costs of those appeals before the tribunal should be given to the applicants.  Insofar as those appeals are concerned, I do not think that is right.

16.  I therefore think that the proper course is for the tribunal in its rehearing of the matter to decide the costs issue, after hearing the full arguments by the parties both for the purposes of the first appeals before it, this is which I have quashed, and in terms of the fresh appeals before it.

17.  I therefore would refuse the second part of the application of the applicants to vary the costs order nisi.

18.  Mr Ismail asks me to clarify that my setting aside or quashing of the tribunal decision, includes the quashing of the costs order made by the tribunal in that respect.  I think that should follow because if the underlying decision is gone the costs order should be gone too.  But it does not mean that the tribunal could not exercise its discretion afresh to look at the costs of the first appeals before it and I believe that the tribunal should do that in its fresh hearing. 

(Discussion re costs)

19.  I think the applicants are the ultimate successful party in this application to vary the costs order nisi, in particular when the Building Authority was trying to argue all along that there should be no order as to costs.  The position that there should be some apportionment of the costs is only advanced at a later stage in this hearing.

20.  I will therefore also order that costs of this application be to the applicants, to be taxed if not agreed.