LAI HOI PING AND ANOTHER v. PERSONS OCCUPYING PORTIONS OF NATHAN ROAD NEAR TO AND BETWEEN ARGYLE STREET AND DUNDAS STREET TO PREVENT OR OBSTRUCT NORMAL VEHICULAR TRAFFIC FROM PASSING AND REPASSING THE OCCUPIED AREAS AND ANOTHER

HCMP 2975/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2975 OF 2014

(ON AN INTENDED APPEAL FROM HCA 2104/2014)

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JUDGMENT ON COSTS

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Hon Cheung CJHC (giving the judgment of the court):

1. On 15 November 2014, we dismissed the 3^rd defendant (Dominic Fok)’s respective applications in the two actions for leave to appeal from the judgment and orders of Au J dated 10 November 2014. We awarded, on a nisi basis, the costs, together with a certificate for two counsel (in HCMP 2975/2014), to the plaintiffs in the two actions, to be taxed if not agreed, against the 3^rd defendant. This is the 3^rd defendant’s application to vary the costs order nisi in each action.

2. The facts have been set out in our judgment, and it is unnecessary to repeat them here.

3. We agree with the submissions of the respective plaintiffs made in opposition to the applications to vary the costs orders nisi.

4. In short, so far as HCMP 2975/2014 is concerned, the problem relating to the three words “and near to” was spotted by this court during the course of oral hearing.  It did not feature in the draft notice of appeal or counsel’s submissions, whether written or oral.  Nor did it result in our giving leave to appeal.  In fact, we specifically considered and decided, in the exercise of our discretion, against granting leave to appeal on this ground.  The main reason was that it was something that could and should be dealt with, by way of further direction, in the court below.  Indeed that was what actually happened subsequently.  No appeal was called for.  With respect, it was opportunistic on the part of the 3^rd defendant to seek to rely on this unexpected development at the hearing of the application for leave to appeal to ask for a variation of our costs order nisi to one making no order as to costs.

5. In our view, costs should follow the event.  The application to vary is refused and the costs order nisi is made absolute.  We also direct that the costs of this application to vary shall form part of the costs of the application for leave to appeal and be dealt with accordingly.

6. As for HCMP 2976/2014, similarly the clarification that the injunction order did not cover the removal of persons, as opposed to objects, by the bailiffs (with or without assistance from the police) was again something that emerged at the oral hearing of the application for leave to appeal.  It was not relied on as a ground for seeking leave to appeal, and it did not feature in counsel’s oral or written submissions.  The point in fact came from the court, and nobody suggested a different reading of the injunction order at the hearing.  It certainly did not result in our giving leave to appeal.

7. Whatever clarification that might be thought required could and should have been sought and obtained from the judge below.  There was simply no need to seek leave to appeal.  The urgency suggested was self‑induced in that if any clarification was genuinely required, the 3^rd defendant’s effort could and should have been spent on seeking such clarification from the judge, rather than on an application for leave to appeal before us which had no reasonable prospect of success.

8. We see no reason why costs should not follow the event.  The application to vary the costs order nisi is refused, and the same is made absolute.  We also direct that the costs of the application to vary shall form part of the costs of the application for leave and be dealt with accordingly.

9. There shall be legal aid taxation of the 3^rd defendant’s own costs in relation to both applications.