LI JIN FEI AND OTHERS v. DIRECTOR OF IMMIGRATION

IN THE COURT OF APPEAL

1992, No. 163
(Civil)

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D E C I S I O N

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Litton, J.A.:

1. This is an application by the successful respondent to this appeal for an order for costs in his favour. Because of the way the proceedings were conducted in the court below the real issues were not in fact addressed until the arguments on behalf of the parties were developed in this court. These arguments were presented to some extent as a result of interventions by the court itself.

2. There is no legal right as to costs. The matter is very much in the discretion of the tribunal which hears the matter and is in the best position to appreciate the full flavour of the proceedings. When the court is minded to award costs then O.62 r.3(3) requires the costs to follow the event except when it appears to the court that in the circumstances of the case some other order should be made.

3. In the course of argument, Ms Hartstein in support of her application for costs referred us to the case of Ritter v. Godfrey (1920) 2 KB p.47 where the trial judge deprived the successful defendant of costs because the judge did not entirely approve of his conduct. This was not a matter which was in issue in the litigation as the case was concerned purely with allegations of negligence; the judge held that no case of negligence was proved. I derive no assistance from Ritter v. Godfrey in relation to the proper order that we should make in this court.

4. Having regard to the way the proceedings were conducted as a whole in my judgment the proper order would be to leave each party to pay his own costs and this application for cost of the appeal should therefore be dismissed.

5. Mr. McCoy on behalf of the respondent in Civil Appeal No. 173 of 1993 asks us to make an order that his client should be awarded the costs against the Director of Immigration in the proceedings in the court below. This is a bold application. The fact is that his client lost in the proceedings in the court below; the court exercised its discretion to award costs and following the provisions of 0.63 r.3 gave the costs to the successful party. I can see no circumstance in the case which suggests that the court should have made some other order and I can detect no error on the part of Mayo J in that regard. The application therefore on behalf of Mr. McCoy's client should also be dismissed.

6. Mr. Tam associated himself in every respect with Mr. McCoy on behalf of his clients in CA No. 163 and No. 164. It must follow that the same orders should be made in relation to those two appeals.

Bokhary, J.A.:

7. I agree. The Director never ordered removal. Faced with the contention that he did so and did so wrongly, what did he do? He sought to defend removal. In all the circumstances, I entirely agree with the orders proposed by my Lord.

Barnett, J.:

8. I too agree with what has been said by my Lord the President. There is nothing I can usefully add.