THE TAT YAU NO. 8

HCAJ13/97 and HCAJ 26/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ADMIRALTY JURISDICTION NO.13 OF 1997

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DECISION ON COSTS

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1. On 30th June 1998, this Court handed down its judgment upon an application by summons dated 2nd April 1998 taken out in each of the title actions by the Owners of the lighter "Tat Yau 8". As that judgment makes clear, there were two fundamental lines of argument during that application. First, whether the arrest of the vessel, the "Tat Yau 8", should be set aside for material non-disclosure, and second (and it was here that the interesting and contentious parts of the argument really flowered), whether an existing bail bond filed in Action AJ13 of 1997 should be altered to cover the claims of the Plaintiffs in both that action and also in Action AJ26 of 1998.

2. It is a rather long judgment, but at the end of the day on those two principal issues this Court decided that the material non-disclosure argument was not well-founded, albeit most ably argued, and second, the Court declined to amend the existing bail bond in AJ13 of 1997 in the form suggested by the Owners of "Tat Yau 8". There was one other matter which arose on the face of the composite summons, and that was the question of the "consolidation" of both the two captioned actions together with another action CL13 of 1998; this latter action was an in personam action which nevertheless arises from the incident of theft of the containers in question from the "Tat Yau 8" on 16th January 1997. In the event, so far as paragraph 2 of the composite summons was concerned, this Court adjourned the "consolidation" application sine die to allow pleadings in the various actions to be constituted, and the issue to be revisited when the actions had taken rather more shape.

3. Today the question of costs arises, namely the costs which have been expended during the three hearings that it took to dispose of this most interesting matter. Mr Heath, who appears on behalf of cargo interests, the Plaintiffs in AJ26 of 1998, says that this is eminently a case for the normal order, and that there are no special circumstances which would merit an exception to the usual rule of costs following the event. He also asked that given the miniscule amount of time spent on the consolidation issue, that is, paragraph 2 of the composite summons, that there be no special treatment of that element - such would cause considerable difficulties at taxation which are not really worth the candle, was what I think he inferred - and he also asks that not only do the Defendants pay his client's costs, but that these costs be paid forthwith, to be taxed if not agreed.

4. Mr Amos, who appears on behalf of the Plaintiffs, Dongnama Shipping Co. Ltd. in AJ13 of 1997, and whose client of course had the original bail bond in place that Owners of the "Tat Yau 8" sought to amend, adopts Mr Heath's arguments.

5. Mr Sheppard, with his usual realism, accepts that there are winners and losers in any application and that on this occasion, unfortunately, he came second. He points out that this was a far from straightforward matter and that notwithstanding extensive research by, I dare say, everyone involved in this case (including the Judge), no readily available answer was apparent from the various texts and authorities. He trailed his coat somewhat with the proposition that in another jurisdiction such an application might be paid out of public funds (a somewhat ambitious proposition), but he does say that in his view a fair order would be Plaintiffs' costs in the cause, both in AJ26 of 1998 and in AJ13 of 1997. He also says that in the particular circumstances of this case, costs should not be taxed and paid forthwith - which, of course, was one of the arguments propounded by Mr Heath and Mr Amos.

6. It sometimes strikes me that making fair costs orders is often more difficult than in deciding the main issue, albeit in this case the main issue was certainly not straightforward and gave pause for considerable reflection. However, I think that the fairest order for costs, looking at the matter in the round, is that the Defendants in both actions are to pay the Plaintiffs' costs of the application pursuant to the summons dated 2nd April 1998 in any event, such costs to be taxed if not agreed. So that the effect of this order is that the Defendants are to pay such costs, but I do not accede to the application that the matter be treated discretely, with payment forthwith, nor do I see the need in this case for the adjourned question of consolidation to attract separate attention at taxation. It seems to me that that aspect occupied such a small part of the overall argument that any attempt to carve it out would probably create more problems than it would solve, and might even add to the costs in argument before the taxing master regarding the amount of time taken up by that element of the summons.

7. That therefore is my order. It remains only to thank the parties again for what was a stimulating (and educational) debate.