BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE

HCSA 19/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 19 OF 2004

(ON APPEAL FROM Small Claims Tribunal Claim

No. 6249 OF 2003)

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J U D G M E N T

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1.  The appellant was the claimant in the Small Claims Tribunal.  His claim was dismissed by the Adjudicator on 19 January 2004.  The Adjudicator also ordered him to pay the respondent the costs of the claim which were assessed at $7,149.38.  He was granted leave by Lam J on 26 September 2005 to appeal.  The only question on appeal, however, is on the costs order of the Tribunal.  The appellant was an inmate of the Correctional Services Department.  In November 2002, he requested to be removed from normal association and be placed in the Protection Unit.  This was to avoid confrontation with other inmates.  He signed a form confirming his understanding that upon removal, he would be subject to certain restrictions which included the deprivation of a radio and prohibition from purchasing any canteen item except letter writing materials and stamps.  These were described as removal of the privileges of the inmate.  He expressed his objection to the removal of these privileges.

2.  Prison Standing Order 58-01(3) provided that privileges of prisoners in the Protection Unit may be restricted pursuant to Prison Standing Procedure 65-04(2).  The Standing Order and Standing Procedure were made by the Commissioner pursuant to Rule 77(4) of the Prison Rules, Cap. 234A.

3.  On 3 December 2002, the appellant was removed from normal association and placed in the Protection Unit subject to the restrictions aforesaid.  He continued to object to these restrictions.

4.  On 23 December 2002, he was allowed to return to normal association and the restrictions lifted.  Before his return to normal association, he prepared a claim form on 21 December 2002 and filed it with the Small Claims Tribunal on 17 January 2003. 

5.  The claim form was brief.  The ground of claim was that the head of the institution in which he was kept had:

“	unreasonably and unlawfully and negligently subjects me to systematic, mental and psychological torture and punishment by exposing me to danger and arbitrary with threat restricted my due privileges for approximately (1)– month or more.”

He then set out various sums as damages for mental distress and anguish, psychological distress and anguish and emotional distress and anguish.

6.  This claim as appearing on the form looked like a personal injuries claim.  There was however a lengthy statement elaborating the nature of the claim which appeared to have been filed by the appellant on 18 March 2003.  This statement made it plain that the appellant was attacking the legal validity of the Standing Order and the Standing Procedure which imposed the restrictions on him.  He claimed damages for his suffering by reason of the imposition of these restrictions.

7.  The respondent in the defence denied that the appellant had been deprived arbitrarily of the radio and the purchase of canteen items or that he had been subjected to extreme isolation.

8.  The claim was tried on 5 December 2003.  The respondent called witnesses to defend the appellant’s case on liability and quantum.  The Adjudicator gave judgment in favour of the respondent.  The Adjudicator acknowledged the respondent’s primary defence was the appellant alleged consent to the imposition of the restrictions.  He also noted that the appellant had protested to the restrictions at all material times.  He then dealt with the Prison Rules, Standing Order 58-01, Standing Procedure 65-04(2) and the evidence of the respondent’s witnesses.  In the end, he did not find Standing Procedure 65-04(2) arbitrary or unreasonable.  He held that this Standing Procedure did not breach the relevant Prison Rules.  He also observed that even if there had been a breach of the Prison Rules, that would not have given rise to any private law cause of action.  He then referred to R v Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 AC 58 in support of this point.  This point had not been taken by the respondent and was only raised by the Tribunal in the judgment.

9.  The Adjudicator then dismissed the appellant’s claim with costs.  The appellant applied for review, but the application was also dismissed on 31 March 2004.  As I have said above, the costs were later assessed at $7,149.38.  The bulk of which were incurred for the attendance of the respondent’s witnesses.

10.  The appellant then applied for leave to appeal.  Before his application was heard, he also applied for leave to commence judicial review proceedings in respect of the imposition of the restrictions.  Leave was granted by Hartmann J and HCAL 84 of 2004 was commenced. 

11.  The substantive hearing of these proceedings took place before Hartmann J on 5 July 2005.  The learned Judge disagreed that the restrictions were applied to the appellant pursuant to his consent as they were just imposed on him.  The learned Judge also held that the removal of privileges was recognised by the Prison Rules as a form of punishment.  However, Prison Rule 68B, which governed the removal of prisoners from association, did not give a superintendent any power to accompany the removal from association with some form of punishment.  But Standing Order 58-01(3), did permit the removal of privileges of prisoners in the Protection Unit without the need to adhere to the regime laid down in the Prison Rules for the prosecution and punishment of offences against discipline.  Prison Rule 77(4), which empowered the Commissioner to make orders, required the orders so made to be in conformity with the Prison Rules.  This Standing Order was not in conformity with Prison rule 68B and was thus ultra vires Prison Rule 77(4).

12.  The application for leave to appeal was heard before Lam J on 26 September 2005.  At that hearing the parties accepted that the Small Claims Tribunal had no jurisdiction to entertain the appellant’s claim as it was a claim in public law.  Lam J granted leave on the following ground:

“	The tribunal should have told the claimant that the tribunal has no jurisdiction to entertain a claim in public law instead of conducting a trial thereof and order the claimant to pay the costs of the trial.”

13.  Looking at the matter in retrospect, the claim at the Tribunal could and should have been disposed of quickly without a trial or the calling of any witness.  It should have been dismissed for want of jurisdiction at the call-over hearing.  If the matter could not have been dealt with at the call-over, a separate short hearing could have been fixed for this purpose.  If that course should have been taken and the claim duly dismissed, the normal costs order of the Tribunal would have been against the appellant, but the amount of costs that the appellant had to pay would have been substantially less.

14.  Mr Man for the respondent argued on this appeal that the costs of the claim before the Tribunal should follow the event.  He further submitted that the respondent had succeeded on a number of grounds and one of which was the want of jurisdiction.  Since it was common ground that the claim should not have been brought in the Tribunal, the claim was a bad one at the start and was rightly dismissed.  Mr Man therefore submitted that the respondent should not be required to pay any costs to the appellant and the appeal should be dismissed. 

15.  Though the jurisdictional point was a good ground for dismissing the claim, it was not raised by the respondent in his defence.  His grounds of defence on liability were all raised on the basis that the Tribunal had jurisdiction to resolve the claim.  These grounds were accepted by the Tribunal.  But they have all turn out to be wrong as the Tribunal had no jurisdiction to resolve the claim and should not have gone into these grounds.

16.  In the circumstances, I refer to Re: Elgindata Ltd. (No.2) [1993] 1 All ER 232 at 237 where Nourse LJ set out the principles for awarding costs as follows:

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The principles are these.  (1) Costs are in the discretion of the court.  (2) They should follow the event, except when it appears to the court that in the circumstances of the case some other orders should be made.  (3) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs.  (4) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but order him to pay the whole or a part of the unsuccessful party’s costs.”

17.  If the respondent should have raised the jurisdictional point at the start, the costs incurred by him would have been much less.  A lot more costs had been incurred because the respondent had not taken the right point, but raised all the unmeritorious points which necessitated a trial and the calling of witnesses.  I think the situation is covered by the latter part of the 3^rd principle in Elgindata (No. 2).  In the circumstances, I do not think the respondent should be given any costs for defending the claim in the Tribunal.  However, I also do not think that the appellant should be awarded any costs below either.  He has taken his claim to the wrong venue.  If the proper course should have been taken there, his claim would have been dismissed with a costs order against him.  I therefore allow the appeal to the extent of setting aside the costs order of the Adjudicator and make no order of costs in its place.

18.  Regarding the costs of the appeal, Mr Man submitted that if I should make no order as to costs below, there should be the same order on appeal as the appeal was an extension of the claim.  Mr Lam for the appellant asked for the costs of the appeal as he submitted that no order of costs below meant the appellant had succeeded on the appeal. 

19.  No order as to costs below no doubt means that the appellant has achieved some degree of success on the appeal.  This is particularly so when the respondent has been seeking strenuously to have the appeal dismissed with costs.  However, the appeal had been conducted simply on the basis that the costs order below was wrong and should be set aside.  There was no indication that the appellant would be prepared to accept no order as to costs below for having brought the claim in the wrong venue.  Looking at the matter in the round, I think the fair costs order for the appeal should be for the respondent to pay the appellant half of the costs of the appeal and I so order.