XCHRX MAK HAU SHING v. ORIENTAL PRESS GROUP LTD. and Others

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(ACTION No. 4902/1993)

-----------------

----------------

-------------------

J U D G M E N T

-------------------

Findlay, J.:

1. The first defendant applied for an order that the plaintiff's claim be struck out. It was unsuccessful before the Master, and, on appeal, was unsuccessful before me. When I dismissed the appeal, I made an order nisi that the first defendant pay the plaintiff's costs, with a certificate for counsel. I did not order that these costs be paid "in any event". I did not apply my mind to this. The first defendant now applies to vary my order so that it does provide for costs to be paid "in any event". The plaintiff argues that I should leave my order as it stands; that is, that the costs should be taxed immediately.

2. It is clear that a court should order that, in effect, costs on a interlocutory matter be paid immediately only where there are special circumstances; where, perhaps, the court wishes to mark its disapproval of the conduct of the party against which the costs order has been made.

3. I have now read the papers again, and I have considered the arguments addressed to me by Mr Bartlett and Mr Tse. I do not think that this is a case in which there are special circumstances that would justify an order that the first defendant make immediate payment of the costs. In fact, I believe such an order would be unjust because, as I indicated in my judgment of 14 November 1995, my inclination is to feel that the plaintiff's case against the first defendant is not a strong one. I do not feel that the first defendant, in the circumstances of this case, should be penalised for attempting to bring the matter to an early end. In the result, I make an order that the first defendant pay the plaintiff's costs in any event. The first defendant has been successful in this application, and there seems no reason why it should not have its costs. I make an order nisi that the costs of this application be to the first defendant in any event.

4. There remains only the question of costs of the plaintiff's summons of 15 December 1995 and the hearing on 22 January 1996. The purpose of this summons was to amend some obvious and silly errors in my judgment of 14 November 1995. The only one at fault in making this application necessary was me. In these circumstances, I think the fair order is that the costs be in the cause, and I make an order nisi accordingly.

(J.K. Findlay)

Judge of the High Court