PATRIARCH PARTNERS MEDIA HOLDINGS LLC v. WONG SIU WA, SAMMY AND ANOTHER

HCA 865/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 865 OF 2013

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DECISION ON COSTS

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1. On 20 November 2015, for the reasons given in my decision on that date, in conjunction with which this decision should be read, I adjourned the plaintiff’s application for leave to re-amend its statement of claim. The plaintiff has since revised its proposed re-amendments to leave out the claim for a conspiracy involving Ms Fredy Bush.

2. By an order dated 17 December 2015, the plaintiff was given leave to amend as per the revised proposed re-amended statement of claim annexed to the letter of the plaintiff’s Solicitors to the court dated 9 December 2015.  By consent, the question of costs was left to be dealt with upon written submissions to be lodged. 

3. Both parties have since made submissions.  There can be no dispute that the costs of and occasioned by the re-amendment of the statement of claim should be to the defendants, and I so order.

4. The dispute concerns the costs of the defendants’ affirmation filed in opposition, the plaintiff’s reply affirmation and the hearing on 20 November 2015.  Having considered the submissions these costs should in my view be borne by the respective parties; in other words, there should be no order as to costs.

5. The outcome as matters stand is that the plaintiff has in effect withdrawn its application for leave to amend insofar as it consists of the addition of a claim for conspiracy involving Fredy Bush. However, the plaintiffs have expressly reserved the right to apply in future to re‑introduce that claim if so advised.  I decline to draw the inference suggested by the defendants that the plaintiff has no arguable basis in fact to plead that claim.  Nevertheless, the defendants have succeeded in the result in resisting the amendment in question.  It can be said that had the plaintiff not sought to add that claim in the first place much of the relevant costs would have been avoided.

6. But a substantial part of the hearing on 20 November 2015 concerned the form of the amendment and, as can be seen from my decision of 20 November 2015, the plaintiff prevailed on that issue except in relation to the phrase “In the event that” in paragraph 38 of the then draft pleading which I thought was confusing.  The defendants contend that they had in fact also raised the evidential argument prior to that hearing but in any event I did not consider that argument to have been clearly signalled in advance, hence the adjournment to allow the plaintiff to respond properly.

7. In these circumstances exercising my discretion broadly I think that a fair order is that the disputed part of the costs should lie where they fall.

8. There will therefore be an order that:

(1)  the costs of and occasioned by the re-amendment of the statement of claim be to the defendants in any event;

(2)  subject as aforesaid there be no order as to the costs of the plaintiff’s  application for leave to re-amend the statement of claim including the costs of the hearing on 20 November 2015 and the costs of the written submissions on costs.