ORIENTAL PRESS GROUP LTD. AND OTHERS v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

HCA12525/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12525 OF 1994

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RULING NO. 5

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1. This ruling concerned with five matters arising in the course of the trial in respect of which costs were expressly reserved. They are as follows :-

(1) 15 February 2001 : the plaintiffs' application to admit the statements of Mr Jenkins and Mr C.K. Ma under hearsay notices.

(2) 20 February 2001 : the defendants' application or submission of no case to answer in respect of the action of the 1st and 2nd plaintiffs.

(3) 7 March 2001 : the defendants' application to put the statement of Mr Vines made in the 1994 Action before the jury.

(4) 7 March 2001 : whether or not the defendants were obliged to call Mr Wilson as a witness to give evidence.

(5) 10 March 2001 : the defendants' application to withdraw the issue of malice in connection with the fair comment defence from the jury.

The submissions of the parties were made through their solicitors' letters after their respective counsel were consulted. Both parties did not require a hearing.

The agreed items

2. In respect of Item (1), the plaintiffs accepted that the defendants should be entitled to costs. The admission of Mr Jenkins' statement was not strenuously opposed and in fact the defendants accepted that Mr Jenkins had already died. Mr Ma's statement was not admitted after argument.

3. In respect of Item (5), the plaintiffs also agreed that the defendants should be entitled to costs since their application to withdraw the issue of malice from the jury in respect of the defence of fair comment was successful.

4. In respect of Item (3), the defendants on the other hand agreed that their application to put in the statement of Mr Vines was unsuccessful and the plaintiffs are entitled to the costs therefor.

The disputed items

5. Under Item (2), the defendants' submission of no case to answer in respect of the 1st plaintiff was already dismissed with costs to the 1st plaintiff against the defendants. Thus no further order is required in respect of the 1st plaintiff.

6. In respect of the 2nd plaintiff, the defendants were put to their election as to whether or not to proceed with their application without calling any further evidence or to postpone making the application until a later time. The defendants decided to call their evidence. Mr Vines was called by the defendants but in my view, he did not assist the defendants in any material way in respect of the issue whether the 2nd plaintiff was the publisher of Eastern Express. The evidence adduced by the plaintiffs clearly indicated that not a single item of expenditure was ever paid by the 2nd plaintiff. It cannot therefore be said that the defendants must have considered there was at least a case to leave to the jury by reason of the additional evidence from Mr Vines concerning the 2nd plaintiff's role as the publisher. Further, the jury's verdict clearly indicated that they were unanimous in deciding that from the evidence available, the 2nd plaintiff was not the publisher. Otherwise the verdict should also be six to one in respect of the 2nd plaintiff. If the defendants have elected not to adduce any further evidence in respect of whether the 2nd plaintiff was the publisher, the court would have granted the application by reason of the state of evidence as aforesaid. In the end, I consider that the defendants should be entitled to the costs order of "the defendants' costs in the cause". Eventually the defendants succeeded in the action of the 2nd plaintiff. The defendants in effect are entitled to the costs of this application in respect of the 2nd plaintiff.

7. In respect of Item (4), the defendants indicated that Mr Wilson would not be called after Mr Vines had finished his evidence. Lengthy submissions were made. The court indicated that it is not an application from the defendants for a ruling that the defendants were not obliged to call Mr Wilson, since the court has no power to force the defendants to call a witness. However, the court agreed with the plaintiffs' counsel that it would be entirely unfair to the plaintiffs when they were given to understand all along that the defence would call Mr Wilson. Thus, they allowed Mr Vines to comment on Mr Wilson's notes in the course of Mr Vines' evidence. The plaintiffs also indicated that should such a course be adopted by the defendants, they would probably take a more drastic application. Having warned of such a situation, the defendants eventually decided to call Mr Wilson when the court expressed its misgivings of such a course to be taken by the defendants. I cannot see why the defendants should not bear the costs of the plaintiffs for the time spent in arguing over this matter, i.e. whether or not Mr Wilson should be called as a witness.

Conclusion

8. Accordingly, I make the following orders of costs in respect of the aforesaid five matters, namely :-

(1) The defendants are entitled to costs for the plaintiffs' application to admit the statements of Mr Jenkins and Mr Ma.

(2) In respect of the defendants' application of no case to answer in the action of the 2nd plaintiff, the defendants are entitled to a costs order of "the defendants' costs in the cause".

(3) The plaintiffs are entitled to the costs of the defendants' application to put the statement of Mr Vines before the jury which was dismissed.

(4) The plaintiffs are entitled to the costs of the argument as to whether or not the defendants should call Mr Wilson.

(5) The defendants are entitled to the costs in respect of their application to withdraw the issue of malice under the defence of fair comment.

9. There shall be certificate for two counsel for the aforesaid orders of costs in case anyone of them was heard in chambers.