HO KWOK HING v. LAM TAI HING TSO AND OTHERS

HCA 694/2017

[2018] HKCFI 1422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 694 OF 2017

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DECISION ON COSTS

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Decision 2 March 2018

1.  By my previous decision in this action I found in favour of the plaintiff and granted an interim injunction to allow him to exercise a right of way, whether by foot or passenger motor vehicle, over Lot No. 813 in Demarcation District No. 96, Yuen Long, New Territories (of which the defendants are the registered owners) for the purposes of accessing Lot No. 814 R.P. in Demarcation District No. 96, Yuen Long, New Territories (over which the plaintiff claims adverse possession).

Costs order nisi

2.  I further ordered that there be a costs order nisi that the costs of the plaintiff’s application, including costs previously reserved by Deputy High Court Judge Seagroatt, be costs in the cause.  In my decision I observedthat while the plaintiff had not prosecuted his claim for an interlocutory injunction as speedily as ideally would be wished equally I considered that the position taken by the defendants as regards the issues and the evidence was not entirely free of criticism.  Costs are a matter in the court's discretion and I concluded that in all the circumstances costs in the cause was the most appropriate order.  However, I gave leave to any party that sought a variation of the order nisi to make written submissions, setting out the grounds and varied order sought, within 14 days of the handing down of the decision.

The defendants' application to vary

3.  By written submissions dated 15 March 2018, the defendants sought a varied costs order in the following terms [with the date of the hearing before me corrected]:

a)  costs of P’s application for the hearing on 13 June 2017 previously reserved under the order of DHCJ Seagroatt, including costs for preparation of the hearing bundles thereof, be paid by P to D forthwith to be taxed if not agreed;

b)  costs for preparation of the hearing bundles for the hearing on [25] January 2018 be paid by P to D forthwith to be taxed if not agreed; and

c)  save for the above, costs of P’s application in relation to the hearing on [25] January 2018 do remain as costs in the cause.

The defendants' grounds

4.  In support of the defendants’ application, reliance is placed on several matters as follows:

a)  The hearing of the plaintiff’s application before me was his third attempt to obtain such relief. In particular, notwithstanding the failed first attempt, the costs of which were awarded to the defendants, the second attempt was also adjourned and for essentially the same reason (but, I note, not due to the same root cause), namely the court concluded that the matter was not yet ready for hearing.  In this regard, the defendants seek to lay the blame largely or entirely at the plaintiff’s door.

b)  Notwithstanding the two previous adjourned attempts to obtain relief, the defendants are also critical of the plaintiff’s preparation for the hearing before me, both as to a key substantive issue, namely the identification of the right of way in respect of which injunctive relief was sought, but also as regards matters of case management, for example, what was said to be inadequacies or failings in relation to the preparation and content of the hearing bundles.

c)  In addition to the matter of the hearing bundles, the defendants also refer to what was said to be the plaintiff’s late filing of his surveyor evidence, the late filing of counsel’s submissions for the hearing and the belated production of a number of documents not by way of exhibit to an affirmation but by handing up at the hearing.

5.  Therefore, the defendants seek essentially all of their costs of the adjourned hearing on 13 June 2017 and the costs of preparing their own hearing bundles for the hearing before me on 25 January 2018, both to be paid forthwith to be taxed if not agreed.

The plaintiff's position

6.  By written submissions dated 3 April 2018, the plaintiff opposed the defendants’ application to vary the costs order nisi and argued that the costs should remain in the cause.

7.  The plaintiff submitted as follows:

a)  On the substantive issue, namely the identification of the claimed right of way, as I had found in favour of the plaintiff on the basis of essentially the same evidence as was before the court previously it could not be said that the plaintiff had failed to identify the right of way.

b)  As regards the various matters of case management of which the defendants were critical it was not correct to lay the blame entirely at the plaintiff’s door, and the defendants conduct of the action could similarly be criticised.  In particular, the plaintiff referred to what was said to be repeated and/or unnecessary correspondence from the defendants' solicitors and further submitted that the defendants’ solicitors preparation of alternative hearing bundles was unnecessary.

Defendants' reply submission

8.  In response, the defendants filed further submissions dated 10 April 2018.  These focus largely on the circumstances and what were claimed to be the failings of the plaintiff as regards his surveyors report, including the delayed filing and service, and the plaintiff's belated explanation for as this as being due to a lack of funds.

9.  The defendants correctly observed that in my decision I was critical (in paragraph 10) of both sides for their approach to the filing of their further evidence, but failed to note that ultimately (in paragraph 25) I preferred the evidence of the plaintiff as I considered it more directly relevant to the issue I had to decide.

Costs order

10.  After giving careful and due consideration to the submissions of both parties, I remain of the view that the appropriate order is costs in the cause.

11.  Costs are in the court’s discretion and are to be determined as the court considers will best achieve justice between the parties.  Here I am not dealing with costs after trial or even the final determination of an interlocutory procedural issue. While I have found in favour of the plaintiff on his application for an interim injunction he will still need to prove his case at trial, and if unsuccessful the costs that I now deal with will be payable by him to the defendants.

12.  That the hearing on 13 June 2017 came to be adjourned is not something for which I consider the plaintiff can be said to be solely responsible, not on the evidence before me. The circumstances of the adjournment are a matter that I had to consider in advance of the hearing before me, the parties, through inter solicitor correspondence, having joined issue on whether the order as drawn up and sealed by the court correctly reflected the order made by His Lordship.  After having listened to the transcript of the hearing and reviewed the court file, I was able to indicate to the parties at the commencement of the hearing that I considered the order as drawn up and sealed is correct.  Thereafter no issue was pursued in this regard by either side.

13.  The position, in my view, was also very different to the first adjourned hearing for which it is clear the plaintiff was not adequately prepared as no evidence in support of the application had been filed.  By the time of the second adjourned hearing, both parties were equally responsible for ensuring that the issues were appropriately identified and that the necessary evidence was before the court to allow it to reach a determination.  Having regard to His Lordship order for the filing of further evidence by both sides, it certainly does not appear that he considered that one or the other was more to blame for the adjournment and certainly not that the plaintiff was entirely or even largely at fault.  As is self-evident, his decision at that point was to reserve the costs and not to order that they be paid by one party to the other.

14.  I would also observe that the defendants likely contributed to the hearing being adjourned by pursuing what I later found was an irrelevant issue namely whether there were alternative means of access to the subject land.  As I observed in my decision (in paragraph 27) such evidence might have been relevant were the plaintiff claiming an easement of necessity but, as I found, it was not relevant where the plaintiff's claim is for an easement by way of prescription.  I note that the issue as regards the availability of alternative means of access was one of the matters on which His Lordship directed that further evidence be filed by the parties.

15.  In the circumstances of the present application, I also do not consider it appropriate that I descend into the detail of the need for the preparation of the various hearing bundles or other similar matters of day to day case management.  It is now clearly established that it falls to both parties to co-operate and seek to assist the court with its task.  In particular, matters of case management are not to be used as a tactical device in an effort to achieve some form of perceived advantage or to exert pressure.  In the present matter there appears to have been a measure of fault on both sides and certainly I am unable to conclude that plaintiff's solicitors were so obviously more to blame as to warrant a costs order in favour of the defendants.

16.  The one observation that I will make on a point of detail is regarding the trial bundles.  First, whether the plaintiff or defendants, the bundles were of a limited number of pages and likely did not require considerable time or cost to prepare. Secondly, of all the documentary evidence produced that which I found most useful was the plan appended to the plaintiff’s pleading and the photographs of the subject property produced by the plaintiff.  After referring to this evidence it was relatively easy to identify the claimed right of way.

17.  For the avoidance of doubt, when I used the term “traced” in my previous decision, I was not suggesting that it was difficult to identify but quite the contrary, i.e. the route was clear.

18.  Accordingly, the defendants’ application to vary the costs order nisi is dismissed and the order is to be absolute.

19.  As regards the costs of the defendants’ application to vary, I order that these be to the plaintiff in any event to be taxed if not agreed.