CHUI OI YING, suing by her next friend and son CHEUNG SAI MAN v. CHEUNG SHUNG PING AND ANOTHER

HCMP 1229/2023

[2025] HKCFI 2868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1229 OF 2023

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D E C I S I O N

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Background

1.  On 10 October 2024, I dismissed the Originating Summons (“OS”) in HCMP 1229/2023 (“the present proceedings”) for reasons given in the Judgment[1], essentially that these proceedings were an abuse of the process as the Plaintiff Madam Chui Oi Ying was in HCA 1710/2016 (“the previous proceedings”) party to a consent order terminating the previous proceedings on the condition that she be barred from claiming against her daughter the 1^st Defendant (“CSP”) on the same subject matter.

2.  The OS was dismissed with costs. CSP applied for an order that the costs be paid by a non-party, namely the Plaintiff’s son and next friend (“CSM”), as well as for an order that the costs be taxed on an indemnity basis[2].

Application for costs against a non-party

3.1.  In respect of the application for costs against a non-party, the court in Sun Focus Investment Ltd v Tang Shing Bor[3] held that the procedure should comprise two stages. As for the first stage, it was not plain and obvious that the application was an abuse of process. Accordingly, I gave directions for the parties to adduce evidence for the second stage.

3.2.  Subsequently, CSP made two affirmations and CSM made one affirmation (13 February 2025), which I have read. I have also read the submissions of counsel for CSP, CSM, the Plaintiff [4] and the 2^nd defendant the Bank of China.

4.  It is well established that a court may order costs to be paid by a non-party[5]. This has been described as an exceptional order, but it has been held that[6]:

“... exceptional in this context means no more than outside the ordinary run of cases where parties pursue ... claims for their own benefit and at their own expense. The ultimate question in any such ‘exceptional’ case is whether in all the circumstances it is just to make the order.

...

Where the non-party ... substantially also controls or at any rate is to benefit from them [the legal proceedings], justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. ... He himself is the ‘real party’ to the litigation, a concept repeatedly invoked throughout the jurisprudence. Nor, indeed, is it necessary that the non-party be ‘the only real party’ to the litigation ... provided that he is ‘a real party in very important and critical respects”.

5.  Applying these considerations to the present proceedings, of course CSM “controls” these proceedings, but that is the case for any litigation involving a mentally incapacitated person where the court has appointed the non-party as the next friend. The court has to go beyond that to consider the relevant circumstances of the particular case.

6.  In this case, I note that the Plaintiff herself initiated the previous proceedings in 2016. The evidence before me shows that in December 2015, the Plaintiff told a psychiatrist about the subject matter of her claims against CSP (among others), and in March 2016 she was assessed by another psychiatrist as being mentally fit. Therefore, although CSM controlled the present proceedings, they were basically an attempt to revive the previous proceedings which the Plaintiff herself had controlled at least initially (CSM was appointed her next friend in August 2019).

7.1.  Significantly, the attempt to revive the previous proceedings by the present proceedings followed advice from the Plaintiff’s former counsel and solicitors that there were legal grounds for doing so. This is shown in CSM’s evidence. Those grounds have been rejected in my Judgment, but it is important to note that in law, counsel and solicitors were the legal representatives, not of the next friend personally, but of the mentally incapacitated person, to whom they owed professional duties[7]. Generally therefore, it would not be just for a next friend who follows the advice of the mentally incapacitated person’s legal advisers to commence (or defend) proceedings to be made liable for costs personally as a non-party. If those legal advisers had failed to follow the correct procedure e.g. in making the appropriate application to court, that is not a failing of the next friend who is a lay person.

7.2.  In the present case, CSM is a law costs draftsman, but there is no evidence that he is legally qualified, and in my view, he cannot be criticized (let alone be ordered to pay costs personally) for following the advice of the Plaintiff’s former counsel and solicitors. Nor is there satisfactory evidence that the present proceedings were not for the Plaintiff’s benefit but were for CSM’s personal benefit.

8.  As to whether the Plaintiff’s former legal advisers should be made liable for wasted costs, I do not consider that it would be appropriate for me to deal with that issue in the present application.

Order

9.  For the reasons given above, I would dismiss the application under s.52A(2) High Court Ordinance.

10.  Having heard submissions on costs, I would order that there be no order as to costs before 13 February 2025, and thereafter CSP do pay the costs of the application to CSM, the Plaintiff and the Bank respectively. (Directions for statements of costs for summary assessment given).