DR CHAN HIN KEUNG HENRY v. APPLE DAILY LTD AND OTHERS

CACV 100/2015

CIVIL APPEAL NO 100 OF 2015

(ON APPEAL FROM DCCJ 1474 OF 2013)

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JUDGMENT ON COSTS
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Hon Yuen JA (giving the Judgment on Costs of the Court):

1.  On 19 January 2015 Deputy District Judge J Chow ordered that:

(1) the 1^st to 3^rd defendants’ application, by summons filed on 29 August 2014, to amend their Defence be dismissed; and

(2) there be an order in terms of the plaintiff’s summons, filed the same day, to strike out passages (related to the proposed amendments) in two witness statements filed on behalf of these defendants.

2.1  The deputy judge’s sole reason for making those orders was that she considered that the 1^st to 3^rd defendants should have explained their delay in making the proposed amendments but had failed to do so, and that the amendments were made on the verge of the case being set down for trial. 

2.2  The deputy judge did not consider the plaintiff’s other ground for objecting to para. 15A(4)(l) of the draft amendment (as well as related passages in Miss Ng Nga Him’s statement) on the ground of irrelevance.

3.1  The 1^st to 3^rd defendants appealed against both orders. 

3.2  The plaintiff filed a Respondent’s Notice seeking to affirm the deputy judge’s decision on the additional ground of irrelevance.

4.  For reasons given in our Judgment handed down on 7 December 2015, this court allowed the appeal, set aside the deputy judge’s orders and made the following orders:

(1) order in terms of the 1^st to 3^rd defendants’ summons filed on 29 August 2014, save that the issue whether leave should be given to plead para. 15A(4)(l) of the Amended Defence on the ground of irrelevance be remitted to a judge of the District Court for determination;

(2) the plaintiff’s summons filed on 29 August 2014 be dismissed, save that the issue whether paras 39-42 of Ng Nga Him’s Witness Statement filed on 31 July 2014 should be struck out on the ground of irrelevance be remitted to a judge of the District Court for determination;

(3) written submissions (restricted to 7 pages) in respect of costs below and on appeal to be filed within 14 days after the Judgment.

5.  Submissions on costs were duly received from both the plaintiff and the 1^st to 3^rd defendants. 

6.  Having considered them, we take the view that a fair order as to costs is as follows:

(1) costs of the appeal (including the costs of the application for leave to appeal and of the submissions on costs of the appeal) be paid by the plaintiff to the 1^st to 3^rd defendants;

(2) costs of the 1^st to 3^rd defendants’ summons for leave to amend (not including the hearing before the deputy judge) be paid by them to the plaintiff;

(3) costs of the plaintiff’s summons to strike out (not including the hearing before the deputy judge) be paid by the 1^st to 3^rd defendants to the plantiff;

(4) as for the costs of the hearing before the deputy judge,

(a) half shall be paid by the plaintiff to the 1^st to 3^rd defendants and

(b) half shall be costs in the cause of the plaintiff’s application to strike out para. 15A(4)(l) of the Amended Defence and the related passages in Miss Ng’s witness statement on the ground of irrelevance.