LI v. THE DUTY LAWYER SERVICE

HCAL76/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.76 OF 2013

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J U D G M E N T

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Introduction

1.  On 15 October 2012, the Administrator of the Duty Lawyer Service (DLS) refused to assign Mr Mark Daly to represent the applicant in his petition for torture claim[1]. The applicant was granted legal aid on 16 November 2012 to challenge the decision of the DLS by way of judicial review.  Mr Daly[2] was assigned to represent the applicant on 23 April 2013 in this action.  Form 86 was filed on 26 April 2013 (HCAL 76/2013).

2.  In the meantime, the applicant was unrepresented.  His torture claim was refused by the Director of Immigration[3]. His appeal was also dismissed by the Adjudicator[4].  Legal aid was granted[5] for the applicant to challenge both decisions by way of judicial review.  Mr Daly was assigned to represent the applicant in this action.  Form 86 was filed on 29 April 2013 (HCAL 77/2013) [6].  

3.  The leave application for HCAL 76/2013 was fixed on 17 July 2014 according to counsel’s diary. 

4.  On 11 July 2014, Mr Daly informed this court that HCAL 77/2013 would likely be resolved in the applicant’s favour without a formal hearing[7], the applicant would discontinue the application for judicial review in HCAL 76/2013.

5.  The DLS indicated that on the discontinuation of HCAL 76/2013, this court should award costs to the DLS.  This is the main issue of the following judgment.

Background

6.  It is essential to set out some background before going into the arguments.  

7.  In his letter dated 11 July 2014, Mr Daly first disclosed that there was a series of judicial reviews (HCAL 6/2013, 7/2013, 63/2013, 78/2013 and 83/2013), the bases of which were similar to HCAL 76/2013. Mr Justice Au refused leave[8] in those cases and they were on appeal.

8.  This court was not informed of this background.

9.  According to court record, in relation to HCAL 6, 7 & 63/2013, notice of appeal was filed on 30 August 2013[9].  Legal aid was granted for the appeal on 3 October 2013.

10.  In relation to HCAL 78 & 83/2013, notice of appeal was filed on 4 February 2014.[10]

11.  On 18 February 2014, I direct parties to fix a hearing for the leave application of HCAL 76/2013. I requested the DLS to attend.  I further directed parties to file affirmation and evidence.  The leave application was fixed on 17 July 2014 according to counsel’s diary.

12.  From March to June 2014, there was a continuous discussion between the applicant and the Torture Claim Appeal Board to dispose of HCAL 77/2013 without a formal hearing.  A firm agreement was made in June 2014.  This court was not informed of HCAL 77/2013 and its current development.

13.  On 23 May 2014, Mr Daly wrote to the Registrar to fix a date for the appeal of HCAL 6, 7 & 63/2013.

14.  On 7 July 2014, the applicant filed documents for the leave application in HCAL 76/2013.

15.  On 11 July 2014, the applicant first proposed to discontinue HCAL 76/2013.

16.  On 14 July 2014, the putative respondent insisted to ask for costs.

17.  On 15 July 2014, the Dykes SC for the applicant filed a skeleton argument on the issue of costs.

18.  On 16 July 2014, Mr Duncan SC for the DLS filed a supplemental skeleton argument on the issue of costs.

19.  On 15 August 2014, Mr Daly wrote to the Registrar to fix a date for the appeal of HCAL 78 & 83/2013.  Legal aid had already been granted.

20.  On8 October 2014, HCAL 77/2013 was formally disposed of by a consent order.[11]

The hearing on 17 July 2014

21.  Mr Dykes SC formally informed this court that HCAL 76/2013 would be discontinued.  He however argued that there should be no order for costs.  The gist of his argument is as follows:

a  As HCAL 77/2013 was resolved, HCAL 76/2013 would be academic.

b  There were judicial reviews on similar bases which had been determined.  There was no point for the putative respondent to appear.

c  But for the direction of this court dated 18 February 2014, the putative respondent needed not attend.

d  Had this court considered the judgments of the other judicial reviews, there would be no need to ask the putative respondent to file evidence.

e  The applicant had no duty to indicate his position in relation to HCAL 77/2013 and HCAL 76/2013.

f  Costs should not be granted to the putative respondent as their appearance served no useful purpose.  The putative respondent should have clarified with this court.

g  A general invitation by a court for the putative respondent to attend is not a proper exercise of the power in the leave application stage.  A court should give direction to a roll up hearing if circumstances warranted.

22.  Mr Duncan SC argued that:

a  As of June 2014, the applicant was aware that the determination of the Adjudicator in HCAL 77/2013 would be quashed.

b  The applicant had not informed the putative respondent of the development.

c  On 7 July 2014, the applicant filed documents for this hearing.  There was no indication that HCAL 76/2013 would be discontinued.

d  It was until 11 July 2014 that the applicant indicated the intention to discontinue.

e  In considering costs issues, a putative respondent requested to attend by the court should be in a different position.  In Sky Wide Development Ltd., the court commented,

“…a putative respondent was requested by the court to attend to make submissions must be a relevant factor in dealing with costs…such a respondent is obviously in a different position from a respondent who…decides to intervene when it has been merely put on notice.” [12]

f  This court expected assistance from the DLS.

Should this court refuse leave based on the judgements of the series of judicial reviews?

23.  Mr Dykes argued that had this court considered the series of judicial reviews, there would be no problem in disposing of HCAL 76/2013 in an ex parte hearing. There was no need to request the putative respondent to attend.

24.  This court was not informed of the series of judicial reviews.  The applicant should have disclosed this history to assist the court.  Mr Daly only saw fit to mention this history on 11 July 2014, less than a week before the hearing.

25.  Even if this court had considered the decisions of Au J on the series of judicial reviews, it would not be prudent to decide the leave application just based on them.  It was always possible that there could be new grounds.  In fact, in HCAL 78 & 83/2013, Mr Dykes filed new grounds 4 days before the hearing albeit the original grounds were identical to those of HCAL 6, 7 & 63/2013 in which leave had already been refused[13]. It would be most undesirable for this court to exclude this possibility as early as February 2014.

26.  In relation to the series of judicial reviews, Mr Daly had filed notices of appeal on 3 October 2013[14] and 4 February 2014[15] respectively.  There was no urgency to proceed with HCAL 76/2013 which, according to Mr Dykes, based on similar grounds.  In my view, those advising the applicant should have applied to adjourn HCAL 76/2013 pending the outcome of the other appeals.  This step could have been taken shortly after the direction on 18 February 2014.  This was even more so given that leave had already be granted to HCAL 77/2013 in September 2013[16].  Chances that HCAL 76/2013 would become academic were always high. 

27.  It transpired from the court record that Mr Daly had requested to set down the appeal of HCAL 6, 7 & 63/2013 for hearing in May 2014.[17]  By this time, it was even more obvious that HCAL 76/2013 should be adjourned pending the appeal.  

28.  This court was not informed of this development.

Development in HCAL 77/2013

29.  In relation to HCAL 77/2013, leave was granted on 4 September 2013. There was continuous discussion to resolve HCAL 77/2013 without a formal hearing.  As Mr Dykes indicated, by June 2014 it was quite certain that the Adjudicator’s decision would be quashed.  As HCAL 77/2013 was disposed of, HCAL 76/2013 would be academic.  

30.  At this stage, Mr Daly should have informed this court of the development in order to save costs.  On the contrary, he filed a full set of documents on 7 July 2014 for the leave application in HCAL 76/2013.  There was no indication that it could have been an academic argument.

Should this court invite the putative respondent to file affirmations and evidence?

31.  Mr Dykes argued that at the leave stage, it was not desirable to give a general direction for the putative respondent to attend.  Nor was it necessary to request a putative respondent to file evidence.  He relied on the comment of Lord Donaldson, Master of the Rolls, in R v Kenneth Gordon Oxford Ex parte Lawrence Bernard Levey,

“Any court is entitled to hear someone who may be affected by a decision on an ex parte application and sometimes it is highly desirable that this shall be done in the interests of justice.….What is expected of the proposed respondent will vary from case to case and may well be made clear by the learned judge, but in general, the court would expect the respondent to instruct counsel fully on the matter in order that he could answer questions from the court designed to clarify the issues and enable it to decide on the appropriate procedure if leave were to be granted. The court would not normally expect the proposed respondent to file evidence, since this is only appropriate if leave were to be granted, and certainly it would not expect discovery to be given in advance of the adjourned hearing.”[18]

32.  In R v Kenneth, Lord Donaldson only commented on general situations.  His Lordship did not set down rules of practice for leave applications.  

33.  Incidentally, in a later case Angur Begum v Secretary of State, while accepting there could be clear arguable and unarguable cases on paper, Lord Donaldson, Master of the Rolls, pointed out the intermediary category as follows,

“ …..But there is an intermediate category of cases in which the judge, on looking at the papers which support the application, can very reasonably come to the conclusion that he really does not know whether there is or is not an arguable case, either because the facts are not clear or because he has not received sufficient assistance with the law to enable him to be satisfied as to precisely what the relevant law is……In those circumstances, where he is in doubt, the right course, in my view, is always to invite the putative respondent to attend and to make representation as to whether leave should or should not be granted. This is not to say that the subsequent inter partes hearing should become anything remotely like the hearing which would ensue if leave were granted…..Adjournment for an inter partes hearing will at least enable the judge to have a bird’s eye view of the contentions on both sides and any doubts or difficulties are likely to be resolved one way or the other…..”[19]

34.  Mr Dykes’ observation may have more force if this court was alerted to the series of judicial reviews.  Unfortunately, it was only disclosed in the letter on 11 July 2014—six days before the inter parte hearing.  

35.  What is expected of the putative respondent varies from case to case.  It depends on the complexity and importance of the issues in question.  A judge has wide discretion in this aspect.  The DLS holds an important stake in providing legal aid services in the magistrate courts and torture claim cases.  The policy for assigning cases must be fair and efficient.  The issues to be argued in HCAL 76/2013 are important.  This court is keen to have assistance and be informed of the full background by the DLS.  In my view, it is appropriate to invite the DLS to appear in the leave application with whatever documents and evidence in support to clarify the issues.  

36.  In fact, in the series of judicial reviews heard by Au J., the DLS was invariably invited and represented by Mr Duncan SC.

Principles governing costs on withdrawal

37.  This court has power to award costs to the putative respondent at the leave stage.  In Sky Wide Development Ltd. and others v Building Authority, Lam VP (as Lam J then was) discussed the relevant principles which I entirely agree.  Sky Wide Development was upheld on appeal. [20]

38.  The general principle is that a court would only award costs against an unsuccessful applicant at the leave application stage if there are unusual or exceptional circumstances.[21]

39.  What amounts to exceptional circumstances depends on the facts and issues in each case.  The list of exceptional circumstances include the hopelessness of the application; whether the application was to advance principally the applicant’s own interest or public interest; whether the unsuccessful applicant has substantial resources to meet the costs; whether the putative parties attended the hearing only upon the invitation of the court and provided helpful assistance[22].

40.  In my judgment, similar principles govern the award of costs in our case.  There is no need to go into the merits of the application as it was discontinued. 

41.  In the light of the following factors, the applicant should pay the costs of the putative respondent. 

a  The solicitor for the applicant, Mr Daly, should have informed this court that there was a series of judicial reviews on similar bases.  In addition, leave was refused in each of them. 

b  Mr Daly should have informed this court that those cases were on appeal. 

c  Mr Daly should have applied to adjourn HCAL 76/2013 pending the appeal of the series of judicial reviews. 

d  Latest in June 2014 when it was clear that HCAL 77/2013 would be disposed of without a hearing, Mr Daly should have informed this court that HCAL 76/2013 would be academic. 

e  The DLS was only informed of the discontinuance around 11 July 2014.  By that time substantial costs had been incurred.

f  This court expected that the DLS could render substantial assistance in deciding whether leave should be granted.

Conclusion

42.  Given the above, I make a costs order nisi that costs of two counsel be awarded to the putative respondent, to be taxed if not agreed, the applicant’s own costs be taxed in accordance with legal aid regulations.