CP SHIPS USA LLC v. CHIEF EXECUTIVE OF THE HKSAR

HCAL 124/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 124 OF 2006

____________

______________

______________

D E C I S I O N

______________

1.  In my Judgment of 11 May 2007 I made an Order Nisi that CP  Ships pay the costs of its judicial review.  By written submissions dated 22 May 2007 CP Ships sought to vary that Order Nisi.

2.  CP Ships suggests that the correct order should be that:-

(a)     CP Ships pay two-thirds of the Government's costs of the judicial review; and,

(b)     Government pay one-third of the CP Ships’ costs of the judicial review.

3.  CP Ships says that its proposed costs order is fairer because it won on the preliminary issue, even though it ultimately lost.  The preliminary issue was the question whether CP Ships had locus as a "claimant" to ask for the return of the machine guns from the Government.

4.  I am not persuaded by CP Ships' submission.

5.  As a general practice, where a party is substantially successful at the end of the day, it should have the costs of the entire matter.  That is even though the party may not have prevailed on every issue in dispute.

6.  Where a specific issue has significantly increased the length or costs of proceedings, a successful party may be deprived of some part of its costs if it has failed on that issue. 

7.  The successful party may also be deprived on its costs on an issue upon which it has lost, where that issue was improperly or unreasonably raised.

8.  Here the investigation into CP Ships' locus as claimant did not significantly lengthen these proceedings.  It is true the Government raised the issue only late in the day.  But in my judgment Government was entitled to raise the issue.

9.  On the issue of locus itself, the evidence on CP Ships’ status was far from clear at the time of the actual hearing before me.  CP Ships thus obtained leave to file further evidence in support of its case of having been in possession (whether as bailee or otherwise) of the machine guns at the time of their seizure by Government.  Without that further evidence, CP  Ships may not have succeeded on the issue of locus.

10.  Accordingly, I do not see a compelling reason to depart from the general practice mentioned above.

11.  CP Ships' application to vary my Order Nisi is refused.  The Order Nisi will become absolute.  The costs of CP Ships' application to vary the Order Nisi will itself be governed by this costs order now become absolute.