CHUNG SZE MAN v. THE UNIVERSITY OF HONG KONG

HCAL 1198/2024

[2024] HKCFI 2182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1198 OF 2024

________________________

________________________

_______________________________________

DECISION ON COSTS

_______________________________________

A. Introduction

1.  These proceedings arose from the Applicant’s participation as a part-time student in the Advanced Diploma in Orthodontics (“ADO”), a two-year course at the University of Hong Kong (“HKU”).  She enrolled on that course in September 2023.  Other than being a part-time student, the Applicant has been a registered dentist in private practice in Hong Kong, since 2016.

2.  As a student of the ADO course, the Applicant has clinical privileges when performing dental clinical work at the HKU Institute for Advanced Dentistry Multi-Specialty Clinic (“Clinic”).  As a student, she is under the constant supervision of senior members of the Faculty of Dentistry.

3.  On 25 April 2024, a clinical incident (“Incident”) occurred when the Applicant was treating a particular patient.  The details of the Incident need not be rehearsed for present purposes.  The Applicant properly completed an Incident Report detailing the Incident, including actions taken to minimise risk to the patient, which report was signed by her supervisor.

4.  Following the Incident, a decision was communicated to the Applicant by letter dated 6 May 2024 (“Decision”), suspending the Applicant’s clinical privileges at the Clinic.  The Decision referred to the Incident, and then stated:

Upon a preliminary review of all available information, there is prima facie concern over your performance in the case. Due to the severity of the incident, and Enquiry Panel will be established to look into the matter.  In this connection, a suspension of your clinical privilege at [the Clinic] will take effect immediately as soon as practicable and until further notice.  This suspension is without prejudice and does not constitute an admission of any wrongdoing or liability on your part.

During the investigation period, you are prohibited from performing any chair side treatments.  That said, you will be allowed to continue with back-end clinical treatment planning, background data analysis, and other related tasks.  Also, it is essential that you refrain from contacting any of your [Clinic] patients until the outcome of the investigation is known.

5.  On 10 May 2024, the Applicant made written representations to the Senate of the HKU stating that there was no wrongdoing on her part, and requesting for resumption of her clinical privileges immediately.

6.  On 13 May 2024, a meeting convened by the Enquiry Panel took place, at which the Applicant provided further information in relation to the Incident.  This followed her receipt of an email from HKU on 11 May 2024, informing her that if she would like to provide additional information she may send it or bring it to the Enquiry Panel.  At the conclusion of the meeting, the Applicant apparently said that she had no further information to provide at that point.

7.  There followed correspondence between solicitors instructed by the Applicant and solicitors instructed by HKU.  I can return to some of the detail of that correspondence below.  However, the correspondence did not prevent the issuing of these proceedings by the Applicant’s Form 86 dated 24 July 2024, by which the Applicant sought leave to apply for judicial review so as to challenge the Decision.

8.  The Form 86 also requested (1) a hearing of the application if leave were not to be granted on paper, and (2) an interim mandatory injunction requiring the Dean of the Faculty of Dentistry of HKU to resume the Applicant’s clinical privileges at the Clinic, pending determination of the proceedings.

9.  By my directions given on 25 July 2024, I required the Applicant to serve the papers on HKU, and I fixed the oral hearing of the application for leave to apply for judicial review at 10am on 6 August 2024.  I indicated that HKU may attend and make submissions at the hearing.  The papers were served by the Applicant on HKU on 30 July 2024.

10.  By letter dated 2 August 2024, solicitors for HKU invited the Court to adjourn the hearing for a period of at least 14 days, to permit it to have sufficient time to prepare submissions to assist the Court.  The same day, 2 August 2024, I identified that it would be preferable to have submissions from HKU, so I re-fixed the hearing for 19 August 2024.

11.  On 12 August 2024, by way of a letter issued by the solicitors for HKU, the Applicant was informed that the Enquiry Panel had concluded its investigations. The letter materially stated as follows:

After carefully reviewing all the available information, evidence and testimony, the Enquiry Panel have reached the conclusion that the clinical skills and judgment of your client were questionable.  She was deemed to be negligent in risk management and risk assessment by ignoring the safety of the patient in the clinical treatment process.

As a result of these failures, the Enquiry Panel have proposed a list of recommendations, which have been endorsed by the Acting Dean of the Faculty of Dentistry, in relation to your client to improve her clinical skills and acquire clinical experience, and to ensure patient safety at [the Clinic].  Such list of recommendations is enclosed with this letter.

Please note that in the event your client does not strictly comply with the recommendations, our client will revoke the clinical privileges granted to your client at its discretion pursuant to page 1 of the Clinical Privilege Policy & Procedure of [the Clinic] dated 11 December 2023.

Our client takes matters of patient safety and medical negligence extremely seriously and is committed to implementing the necessary measures in order to prevent any similar incidents from occurring.  Our client considers that your client should improve her clinical skills and acquire more clinical experience, which our client considers can be facilitated under the supervision of the staff members of our client, such that she can duly complete and successfully obtain her [ADO].

12.  The letter identified that the Applicant was to receive a warning letter with the measure to be taken of four months’ suspension of clinical privileges from 6 May to 5 September 2024.

13.  The letter also invited the Applicant to a meeting to discuss any questions that she might have in relation to the conclusion and recommendations of the Enquiry Panel.  That meeting took place on Friday 16 August 2024, and was apparently “fruitful”.

14.  In light of the final decision of a four-month suspension of clinical privileges, which would expire within two weeks or so from the fixed hearing, and with the benefit of the discussions at the meeting, the Applicant was subsequently able to confirm her intention to withdraw her application for leave to apply for judicial review.

15.  Mr Felix Tang, Counsel for the Applicant, confirmed that intention at the hearing yesterday, on Monday 19 August 2024. Ms Catrina Lam, appearing with Mr Charlie Liu, Counsel for the HKU confirmed no opposition to the withdrawal.  In those circumstances, I gave leave to the Applicant to withdraw her application for leave to apply for judicial review.

16.  That left only the matter of costs to be resolved.

17.  At the hearing, I heard the parties’ submissions on costs, and reserved my decision to be handed down the following day.  This is my Decision on Costs.

B.  The Submissions

18.  Mr Tang emphasised that it had only been possible to engage in ‘without prejudice’ discussions late on Friday, at the last opportunity before the intervening weekend before the fixed hearing for the Monday morning.  That would explain what might otherwise be seen as an “11^th hour” withdrawal of the application.

19.  Mr Tang also sought to distinguish between a dismissal of the application and its withdrawal. Here, there was withdrawal in light of developments in the case, and in particular the decision of the Enquiry Panel communicated only on 12 August 2024.  Prior to that letter, no timeframe had been indicated as to when the final decision would be given.

20.  On the basis that the usual means of seeking leave to apply for judicial review is by an ex parte application, and where the Court had only permitted (but not required) HKU to attend the hearing and make submissions, Mr Tang submitted that there was no good reason for the Court to depart from the usual applicable costs order being ‘no order as to costs’.  He stressed that the Applicant had not acted in bad faith, but had a genuine concern as to the fact of the suspension of her clinical privileges, that she had not brought any private law action which might have been abusive, and that matters were urgent.  Mr Tang also pointed to the fact that if the original hearing had gone ahead as fixed for 6 August 2024, it would of course have been conducted fully ex parte and there would have been absolutely no basis to have departed from the usual no order as to costs.

21.  Ms Lam acknowledged the broad discretion as to costs applicable when an application for leave to apply for judicial review is either withdrawn or dismissed.  She accepted that the costs order in relation to an ex parte application in this context is usually no order as to costs, unless there are good grounds to order otherwise.  Here, Ms Lam submitted, good grounds exist.  She in essence suggested five such grounds, being:

(1)  The proceedings were fundamentally inappropriate from the very beginning.  This is because the Applicant recognised (by her Counsel) that Courts are reluctant to entertain challenges of intermediary steps in the decision-making process of administrative decision-makers.  The Applicant’s suggestion that the suspension Decision in this case was both punitive and caused irretrievable prejudice was incorrect.  As the Decision letter identifies, the suspension was temporary and only partial, and it was based on the absence of any admission of wrongdoing or liability on the Applicant’s part.  Further, the Applicant was able to take a full part in the investigation conducted by the Enquiry Panel.  The Decision was only a precautionary measure in the public interest to safeguard patient care.

(2)  It is plain from the correspondence between the parties that the Applicant was offered the opportunity to “engage” in the process, but chose not to do so and instead to threaten then commence these proceedings.  Had she engaged, the proceedings could well have been avoided altogether.

(3)  The Applicant must have known from at least 22 May 2024 that HKU had engaged lawyers, and so would incur legal costs which might be sought in reimbursement from the Applicant.  Further, from the date of the Court’s directions on 25 July 2024, the Applicant must have known that HKU might participate in these proceedings, which HKU indicated as its intention by its solicitors’ letter dated 2 August 2024.  The submissions advanced by HKU were, Ms Lam hoped, of material benefit to the Court and to the Applicant – in understanding HKU’s position.

(4)  The Decision involved the matter of public or patient safety and, where the Applicant was seeking a mandatory injunction on HKU to permit her to resume clinical privileges at the Clinic, HKU was plainly entitled to be heard on that application.

(5)  In any event, the grounds of the intended judicial review challenge were unmeritorious.  Not only was the intended challenge aimed at an interim temporary suspension, lacking the necessary quality of finality to make it reviewable, the Decision was probably not made by HKU in his public law capacity.  There was no failure to have taken into account relevant considerations, nor was the Decision Wednesbury unreasonable or irrational in the circumstances of necessary patient safety.  Sufficient reasons were given for the Decision, and there was no procedural unfairness.

22.  I can return to those submissions, but it is first helpful to identify some of the correspondence between the parties which took place over the relevant period.

C.  The Correspondence

23.  The Decision imposing the temporary suspension of “chairside treatments” (but not back-end clinical treatment planning etc) was made on 6 May 2024. As already indicated, the Applicant was informed on 11 May 2024 of the setting up of the Enquiry Panel and its invitation for the Applicant to provide it with information.

24.  On 13 May 2024, the same date as the Enquiry Panel met, solicitors for the Applicant wrote demanding withdrawal of the Decision within seven days.  Though Ms Lam has sought to emphasise that no mention was made in this and some subsequent letters of any concern about progression in the ADO being adversely affected, I would have thought that concern was so obvious as would not have needed express statement.  The longer any period of suspension, the greater any concern would be against the time for collecting the relevant clinical experience.

25.  On 22 May 2024, solicitors acting for HKU wrote to state that they were taking instructions.  On 7 June 2024, those solicitors wrote to invite the Applicant to provide within 14 days (i.e. by 21 June 2024) any further information and/or evidence that she would wish the Enquiry Panel take into account before it concludes its enquiries and determines what action to recommend.  No further information was provided by the Applicant within that deadline.

26.  Instead, on 24 June 2024, the Applicant’s solicitors faxed a letter dated 21 June 2024 stating they had instructed Counsel for advice on a potential ex parte interlocutory application, unless the Decision were withdrawn within 14 days.  The letter suggested that in the absence of withdrawal of the Decision, the Applicant would definitely apply to the Court for aggravated and consequential damages, interests and indemnity costs.

27.  On 27 June 2024, the solicitors for HKU wrote to those acting for the Applicant noting that she had not provided any additional information and/or evidence, and put her on notice that if she failed to do so within seven days (i.e. by 3 July 2024), the Enquiry Panel would proceed to its conclusion without further notice.  No further information was provided by the Applicant within that deadline.

28.  On 4 July 2024, the Applicant’s solicitors wrote to the solicitors for HKU stating that they had instructed Counsel to issue proceedings and asking if the solicitors had instructions to accept service.  Those instructions were confirmed on 15 July 2024, and on 24 July 2024 the proceedings were issued.  I have dealt already (see above) with the procedural history after issue of the Form 86.

29.  From the above, it can be seen that there is considerable force in Ms Lam’s submission that the Applicant appears to have chosen not to engage with the Enquiry Panel process beyond the first meeting, by providing any further information and/or evidence.  Of course, that may simply be because she did not feel she had any further such materials to provide, but that was not really made clear. Instead, there was essentially the cross-purpose approach of continued and ratcheted-up threats of proceedings.

30.  On the other hand, whilst it might be said that HKU were to some extent showing some patience in extending time for the Applicant to provide any further information relevant to the consideration by the Enquiry Panel, it might also be thought that it was clear that no further information was going to be forthcoming from an early stage, and the final decision could and should have been made by the Enquiry Panel rather earlier than 12 August 2024. Rightly or wrongly, there is also the sense that the timing of the final decision was influenced by the bringing of these proceedings, and in particular by my directions relating to their conduct.

31.  I take these matters into account, in addition to those that I also identify below.

D.  Consideration of Submissions

32.  Ultimately, I am persuaded that this is a case where there is an appropriate departure from the usual ‘no order as to costs’ as might more typically apply to an ex parte application for leave to apply for judicial review.

33.  I take into account, and give particular weight to, the following features:

(1)  The Decision the subject-matter of the intended challenge was obviously a temporary and only partial interim suspension, pending the investigation and outcome of the Enquiry Panel.

(2)  That type of decision is ordinarily not amenable to judicial review, as Mr Tang rightly recognized and addressed.

(3)  Though it might be thought that the absence of any indication when the ‘final’ decision might be given would appear to make the Decision less “temporary”, and so open the door to a challenge, part of the problem lay in the way the correspondence was conducted.

(4)  By that correspondence, rather than make clear that the Applicant had no further information to provide and so ask the Enquiry Panel to make its final decision as soon as possible, the Applicant chose instead to demand lifting of the suspension of clinical privileges, and to make threats of commencing legal proceedings.

(5)  That correspondence might properly be regarded as having deflected the Enquiry Panel (and HKU’s solicitors) from its primary task, causing part of the passage of time before it reached its ‘final’ decision on 12 August 2024.

(6)  The underlying merits of the intended challenge were never strong.  As well as being only an intermediate step, the Decision was adequately reasoned, and properly took into account the relevant features – including, as seems to me, the important requirement of ensuring patient safety during any interim period.

(7)  The balance to be drawn between suspending clinical privileges for the Applicant and how best to protect the interest of patients whilst the matter was properly investigated was a matter for the Dean of the Faculty.

(8)  As it happens, the total period of suspension imposed is less than the period to date, but has properly taken that period into account.  As I understand it, the Applicant has now accepted that period of suspension, together with the proactive recommendations set out in the attachment to the 12 August 2024 letter.

(9)  When proceedings were commenced, the claimed relief included an interim mandatory injunction, and it ought to have been obvious that HKU would wish to be, and would be entitled to be, heard on any such application.

(10)  Indeed, the Court would almost certainly have invited (if not required) HKU to respond to any application for an interim mandatory injunction – and would particularly have done so in the circumstances of this case, where there had been an exchange of correspondence between solicitors for the parties.

(11)  In fact, even if an application for leave to apply for judicial review is ordinarily made ex parte, an application for an interim mandatory injunction against a party who has already instructed solicitors to engage with solicitors for the applicant ought to have been sought inter partes in the first place.

(12)  The Court has been assisted by the submissions made on behalf of HKU.

E.  Result

34.  Therefore, I order the Applicant to pay the costs of the putative respondent HKU, subject to a summary assessment which I shall perform on the papers.  HKU should provide its Statement of Costs for summary assessment within 14 days, and the Applicant shall have 14 days thereafter to provide her List of Objections, if any.