TO PUI KUI, the Administratrix of the Estate of NG PO SUM, Deceased v. NG OI CHE AND OTHERS

HCA 522/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 522 OF 2008

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REASONS FOR DECISION

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Procedural backgrounds of the 1^st and 3^rd defendants’ application

1. On 3 March 2014 I handed down judgment in this action (“the Judgment”) dismissing the plaintiff’s claim, and gave directions for submissions on costs to be filed.  The 1^st and 3^rd defendants (the 7^th daughter of the Ng family, “Stephanie” and a family company“HEL”) took out a summons dated 14 March 2014 for Mr Andrew Ng (the 8^th son of the Ng family, “Andrew”) to be joined as a party to the proceedings for the purpose of costs, and for an order that Andrew be jointly and severally liable with the plaintiff (“the Mother”) for the costs of this action payable to Stephanie and HEL.  On 27 March 2014 I acceded to the application for the joinder of Andrew for the purpose of costs, and gave him the opportunity to file evidence ahead of a hearing to be fixed to contest the proposed order of costs against him.

2. After an unsuccessful application before Poon J to adjourn the scheduled hearing of 23 June 2014, Andrew eventually filed an affirmation dated 5 June 2014 out of time.  His application for extension of time scheduled to be heard at the same time as the hearing of Stephanie and HEL’s summons was consented to by leading counsel Ms Cheng SC for Stephanie and HEL, and Andrew’s late affirmation was admitted as part of the evidence before this court.

3. On 23 June 2014, after hearing leading and junior counsel for Stephanie and HEL, and counsel for Andrew, I made an order for Andrew to be jointly and severally liable with the Mother for the costs of this action payable to Stephanie and HEL.  I now give my reasons for the decision.

4. I should mention that in so far as the costs of the action against the Mother is concerned, the question of whether the costs of the action is to be paid out of the estate of Ng Po Sum (“the Estate”) or to be borne by her personally forms the subject of a separate application to be determined at a future hearing.  The plaintiff’s leading and junior counsel Mr Aiken SC and Mr Lung held watching briefs at the 23 June 2014 hearing for the Mother but advanced no submissions on the terms of the costs order to be made.  At the end of the hearing on 23 June 2014, I gave directions to give Andrew access to the skeleton arguments on costs filed by the original parties to the action for the pending hearing, and for him to file his arguments in answer.

Matters relied on in support of the application

5. It was the case of Stephanie and HEL that an irresistible inference arose from the evidence pointing to Andrew having manipulated the Mother in commencing and/or prosecuting the proceedings.  The proceedings were purely speculative, lacked bona fides, and were not brought for the interest of the Estate, but for revenge by Andrew against Stephanie and other siblings in her camp.

6. Stephanie and HEL placed reliance on a number of paragraphs of my judgment in this action containing findings I made and my observations based on those findings in respect of the acts and the role of Andrew in the events leading up to the present action and the pressing of the Mother’s claim to a full trial.  These relate to two main complaints of wrongdoing on the part of Stephanie.  First, it was said that she had pocketed the money transferred out of the deceased’s (“the Father’s”) two accounts held at Wing Lung Bank on the first working day after his death; second, that she had wrongfully emptied and disposed of the contents of the Father’s safe deposit box, all without the knowledge or consent of the Mother.

7. It turns out in the oral evidence given at trial that the Mother did not in fact appreciate that Stephanie did not misappropriate the money in the two accounts, and that the money alleged to have been pocketed by her were in fact used on funeral expenses and to purchase a new car for Andrew’s sole use, purposes against which she could have had no objection.  She admitted that had she known the above facts she would not have sued for the money, but would only have had reservations on whether the proper procedure was followed by her (paras 26, 28 and 39 of the Judgment).  Her evidence also shows she was not clear about the contents of the Father’s safe deposit box, and in any event regarded the alleged loss of the contents as a minor issue (para 27 of the Judgment).  In other words, she had not intended to launch the action in order to recover the contents of the safe deposit box, whether for their monetary, emotional or other value.

8. Andrew, on the other hand, readily accepted when giving evidence at trial that based on the documentary evidence before the court, Stephanie did not pocket the money.  When asked at which point in time did he first realise that there was no basis in the Mother’s complaint regarding Stephanie pocketing the money in the accounts, he became evasive and insisted it was “very late”—only after he had been provided with the discovery documents in the action (para 30 of the Judgment).  On the other hand, the documentary evidence shows that Andrew had been tracking the movement of the funds in and out of the HEL account at the relevant period of time by making notes and markings on its bank passbook, had co‑signed the audited accounts of NSMAL that showed the family company having no funds to pay for any funeral, and signed the lease for the hire purchase of the new Mercedes Benz car funded by the money transferred from the two accounts.  He, himself, therefore could not at any relevant time have formed the same wrong impression harboured by the Mother (paras 33 and 63‑65 of the Judgment).

9. Against the above documentary evidence, in giving evidence as the only non‑party witness for the plaintiff, Andrew however maintained the transfers made by Stephanie were “illegal”, without being able to point to any loss suffered by the Estate.  The evidence of Andrew and the Mother drove me to the following view expressed in para 30 of the Judgment, which the Ms Cheng SC relied on in support of her application:

“It would appear that up to the point of time when the plaintiff started giving evidence, she was deliberately left to continue to think that Stephanie had pocketed the money, when Andrew should have disabused her of that belief nut has chosen not to. She was unable to give any coherent evidence on what, to her, had justified the action to be launched, beyond a mistaken belief of misappropriation of money, and admitted to her lack of knowledge of what property (let alone its value) she believed had been taken from the Safe Box. The above observations give support to the submissions made on behalf of the 1^st and 3^rd defendants that the action was commenced and prosecuted by the the Mother under the manipulation of Andrew for his ulterior purpose, and not genuinely for the benefit of the Estate.”

10. Para 37 of my judgment is also relied on in advancing the submissions that Andrew knew there was nothing of value in the Father’s safe deposit box, and the claim was launched by the Mother at the instigation or with the encouragement of Andrew who took steps to make a “Solemn Declaration” by way of a self‑serving statement of its alleged contents only in 2007, years after the Father’s death but after the falling out of the two camps between 2005 to 2006, in preparation for litigation against Stephanie’s camp (paras 37‑39 of the Judgment).  It has also been pointed out by Ms Cheng SC that while Andrew previously held a Power of Attorney (“the 2006 PoA”) that had a limited validity period of one year from 11 December 2006, that was not the only Power of Attorney he had ever held.  In fact, he held an enduring Power of Attorney that was in force from 24 February 2012 (“the 2012 PoA”) that remained valid throughout the period leading up to and including the trial, giving him the power, jointly and severally with two other siblings in the same camp, Angela and Jeremy, to act as the attorney of the Mother as the Administratrix of the Estate, including to “commence, prosecute or to compromise and determine upon such terms as [any of them] shall deem desirable any action suit or other proceedings that [any of them] shall consider necessary or desirable on [behalf of the plaintiff] as personal representative ...”.  None of this is disputed, although in denying his involvement, Andrew was quick to point out in his latest affirmation that the 2006 PoA expired before the commencement of the action, but made no mention of the 2012 PoA.

11. Particular reliance was placed on para 40 of my Judgment:

“ From the above, and the general background of the disputes between the two camps, I find force in the submission advanced by the 1^st and 3^rd defendants, that the action was far from a true exercise of right to recover any genuine loss suffered by the Estate, but was motivated by revenge against some unarticulated personal grudge, with the aged the Mother as the plaintiff being manipulated by Andrew on one side, against Stephanie, Philip, Tony and Olympia on the other. Having said that, my assessment of the credibility of witnesses by no means depend on whether there existed such a motive on the part of the plaintiff or her attorney.”

Legal principle— award of costs against a person not a party to the action

12. It is common ground that the court has jurisdiction under section 52A of the High Court Ordinance (Cap 4) and Order 62, rule 6A of the Rules of the High Court to make a costs order against a non‑party.

13. It is well accepted that the power to make such an order is discretionary, and is only to be exercised in exceptional circumstances. Appropriate cases for such an order are rare.

14. In Metalloy Supplies Ltd (in liquidation) v M.A. (UK) Ltd [1997] 1 All ER 418 at 424 (CA), Millett LJ has explained the jurisdiction in the following words:

“It may be made in a wide variety of circumstances where the third party is considered to be the real party interested in the outcome of the suit. It may also be made where the third party has been responsible for bringing the proceedings and they have been brought in bad faith or for an ulterior purpose of there is some other conduct on his part which makes it just and reasonable to make the order against him.”

15. What, then, are the principles to be applied in the exercise of discretion to make a case “exceptional” warranting such an order?  I find the following summary of the position by Lord Brown in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807 at 2815 (PC) to provide useful guidance:

“(1) Although costs orders against non-parties are to be regarded as ‘exceptional’, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such ‘exceptional’ case is whether in all circumstances it is just to make the order. It must be recognized that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of considerations in play, some militating in favour of an order, some against. (2) Generally speaking the discretion will not be exercised against ‘pure funders’ … as ‘those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business, and in no way seek to control its course’. ….(3) Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is ‘the real party’ to the litigation…. Nor, indeed, is it necessary that the non-party be ‘the only real party’ to the litigation in the sense explained in the Knight case, provided that he is ‘a real party in ….. very important and critical respects’…”

The authorities establish that, whilst any impropriety or the pursuit or speculative litigation may of itself support the making of an order against a non-party, its absence does not preclude the making of such an order.

16. The assessment of the appropriateness of such an order is fact‑sensitive, and would require an objective assessment of the circumstances of the individual case.  The bona fides in the conduct of the litigation was not a necessary condition, although it might otherwise be sufficient.  It involves the exercise of a principled discretion in the ultimate interest of justice.  Where the conduct of the non‑party had led to the applicant incurring costs, it would be a vital factor for consideration although causation is not a necessary factor: PR Records Ltd v Vinyl 2000 Ltd & Owlett & Anor [2008] 1 Costs LR 19 at 39 (Ch D); Total Spares & supplies Ltd and Antares Ltd v Antares SRL & Others [2006] BPIR 1330 at 1346.

17. Mr Tam, counsel for Andrew, cites Symphony Group Plc v Hodgson [1994] QB 179.  At 191, Balcombe LJ cited Lloyd LJ’s remark in Taylor v Pace Developments Ltd [1991] BCC 406 as follows: “There is only one immutable rule in relation to costs, and that is there are no immutable rules.” He then sets out a number of material considerations to take into account in order to provide some guidance on the award of costs against non‑party.  These include the following (at p 193‑194):

“(1) An order for the payment of costs by a non-party will always be exceptional: see per Lord Goff in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, 980. The judge should treat any application for such an order with considerable caution.

(2) It will be even more exceptional for an order for the payment of costs to be made against a non-party, where the applicant has a cause of action against the non-party and could have joined him as a party to the original proceedings. Joinder as a party to the proceedings gives the person concerned all the protection conferred by the rules, as to eg the framing of the issues by pleadings: discovery of documents and the opportunity to pay into court or to make a Calderbank offer (Calderbank v Calderbank [1976] Fam 93); and the knowledge of what the issues are before giving evidence.

(3) Even if the applicant can provide a good reason for not joining the non-party against whom he has a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him. At the very least this will give the non-party an opportunity to apply to be joined as a party to the action Under Ord 15, r 6(2)(b)(i) or (ii).

….

(5) The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias. Bias is the antithesis of the proper exercise of a judicial function: see : Bahai v Rashidian [1985] 1 WLR 1337, 1342, 1346.

….

(7)  Again, the normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during these proceedings.  One reason for this immunity is so that witnesses may give their evidence fearlessly : see Palmer v Durnford Ford [1992] QB 483, 487.  In so far as the evidence of a witness in proceedings may lead to an application for the costs of those proceedings against him or his company, it introduces yet another exception to a valuable general principle.”

18. Applying the above principles, Ms Cheng SC submitted that in view of my findings and the evidence in the action, it was plain that the action lacked bona fides and was manipulated or controlled by Andrew.  In the circumstances, she submitted, justice plainly called for Andrew to be made responsible for having manipulated the Mother into pursuing the misconceived action for an ulterior purpose of his own.

Andrew’s case and the parties’ submissions

19. Andrew insisted that he was far from being the mastermind or person in control of the proceedings, which he said was instigated by Angela.  He was no more than a witness in the action, merely assisting the Mother.  In his affirmation dated 5 June 2014, he maintained that he did not give instructions to solicitors for the plaintiff, but Angela and the Mother did.  In support of the above, he relied on a letter written in October 2005 by solicitors purportedly representing Angela to Wing Lung Bank asking for general details of accounts and any safe deposit box held by the Father “for estate duty purposes”.  This letter was replied to, albeit with some inaccuracy, and no further correspondence ensued.

20. The naming of Angela as the person who “prompted the Mother to commence the present proceedings” is to be contrasted with what he said in a slightly earlier affirmation filed in an attempt to cause an adjournment of the hearing of 23 June 2014.  In para 4 of that affirmation of 23 April 2014, he stated as follows:

“I was given to understand that the Mother, being the Administratrix of the Estate had the fiduciary duty to preserve all the assets of the Deceased so that assets could be distributed fairly amongst the beneficiaries and to pay Estate Duty on the value of the Estate. I believe that the Mother started the present proceedings on the advice of her Lawyers and in the capacity of the Administratrix of the Estate to achieve the abovementioned purposes and I was not involved in instructing Lawyers”

No mention was made of Angela being the person who prompted or caused the Mother to commence action, nor of any steps taken by her to investigate or to gather any materials for the purpose of litigation.

21. In his affirmation of 5 June 2014, Andrew complained that if he was considered the mastermind of the action, he should have been joined as a party so that he could be warned of his potential liability as to costs and seek legal advice on whether to participate in the action as a party or as a witness.

22. Counsel for Andrew, Mr Tam, argues that Andrew was under no duty to disabuse the Mother of any misconception as to facts.  The fact that he could have prevented the futile proceedings from continuing does not make him liable for costs.  In any event, causation cannot be shown as there is no evidence that the proceedings would not have been brought or continued if Andrew had corrected the Mother’s misconceptions on Stephanie’s deeds.

23. In reply to Andrew’s arguments, it was pointed out that shortly after Andrew was appointed Power of Attorney by the Mother towards the end of 2006, he wrote a letter on 12 January 2007 on behalf of the Mother to Wing Lung Bank, who later became the 2^nd defendant in this action, asking for copies of specific documents relating to the closure of two accounts, the transfer of the money out of them, and the termination of the Father’s safe deposit box.  I observe that these were precisely the crucial documents which later formed the subject of this action.  Following this letter, he followed with three further letters to the bank with probing questions requesting for details regarding the access to the safe deposit box of the Father, and record of access to and termination of his own Safe Deposit Box, all of which were in the nature of collection of documentary evidence, some if not all of which were then used in the plaintiff’s case to mount a claim against the defendants.  The last of the series of letters is dated 4 September 2007, in which he on behalf of the Mother complained about the bank’s “failure to address our legal concerns” (emphasis supplied), and referred to “time limitation for action” as a reason urging a prompt reply.  As matters transpired, the present action was commenced in March 2008.

24. The above is to be contrasted with the evidence of Andrew in para 3 of his affirmation of 23 April 2014 filed herein where he described the investigation leading to the action was carried out not by or on behalf of Angela, but by the Mother’s legal advisers, who subsequently advised the Mother to start action:

“Solicitors acting for the Estate, the plaintiff herein, then started an investigation and letters were sent to the 2^nd defendant which had dealings with my the Father for a long time to enquire about his financial position before his death. The plaintiff was then informed by the 2^nd defendant that the Father did have a Safe Deposit Box but it was cancelled by the 1^st defendant shortly (the first working day morning after Easter Holiday) after his death. The plaintiff was also informed that half a million dollars was withdrawn from my the Father’s personal accounts kept with the 2^nd defendant.” (emphasis supplied)

25. In an attempt to further demonstrate that his role in the action was much more than that of a witness invited to give evidence on behalf of a party, it was further pointed out that, on top of what a witness may be expected to do, such as making a witness statement:

(a)  He filed three affirmations in the action, two of which were to resist the plaintiff’s application for expert evidence to be adduced to prove whether the handwriting that appeared on the very deposit slips he requested from Wing Lung Bank in October 2007 were his own handwriting.  In this affirmation he advanced arguments resisting the application.

(b)  He is said to have given instructions to the plaintiff’s solicitors at the trial.  In this regard Ms Cheng SC clarified that on Day 4 when the Mother was giving evidence from in witness box, and after the proceedings had had to be adjourned when the Mother complained of feeling unwell, the plaintiff’s team had taken time to “take instructions” albeit not from the plaintiff who was giving evidence.  Rather, her team was given to understand that instructions were being taken from Andrew.

(c)   While judgment in this action was pending, he sent no less than two letters at different times in his personal capacity as a “Witness in HCA 522/2008” to chase for the date of delivery of the court’s judgment.  In the letter dated 19 November 2013, a letter he relied on in his own affirmation, he said “I am very anxious to find out the details of the Judgment…” (emphasis supplied).  In a letter dated 13 January 2014, copies of which was not copied to other parties but has since been supplied to the parties to complete the picture, he wrote:

“HCA 522 is one of a series of litigation matters and the outcome of this action may affect the result of the other actions. In order to uphold the cause of justice, I wonder if anything can be done by the Honourable Court to protect my, and especially my 91 years old the Mother’s legal interest in this matter.”

(d)  In view of the 2012 PoA, Andrew was certainly empowered to exercise the powers and discretion vested in the Mother as Administratrix of the Estate in relation to the conduct of the proceedings, including to determine it, particularly when the decision to commence action was found to be based on a misapprehension of the facts which he himself does not dispute.  Further, in such capacity, he was prior to the commencement of trial obligated to disabuse the Mother of any misconception regarding what happened to the money transferred for the two accounts.  The fact that he did not do so, coupled with the above points, support a conclusion that he was manipulating the Mother in prosecuting the action.

26. It was also submitted on behalf of Stephanie and HEL that whether Angela was involved was neither here nor there.  They shared like power jointly and severally, and if indeed Angela had also been responsible in instigating the commencement of the action and giving instructions to prosecute it, it would be open to Andrew to seek contribution from Angela for any costs he was ordered to pay.

Reasons for decision

27. Having considered the above submissions and the matters relied on by both parties, I consider the evidence of Andrew’s manipulation and control over the Mother as the plaintiff of the proceedings both abundant and strong, making it an exceptional case where justice demands that he be made liable for the costs of the action.  I also consider there is abundant evidence pointing to his mala fides, and that he was personally interested in the outcome of the proceedings.  The action was without merits, and Andrew well knew it.  However, the Mother was manipulated by him into believing otherwise in commencing and prosecuting the action.

28. For the purpose of arriving at the above conclusion, I was able to draw exceptionally strong inferences from the evidence of the Mother, the uncontroverted evidence of the transfer from the two accounts, and the documentary evidence showing the tracking of the use of the funds by Andrew, and the clear evidence that the funds from the two accounts (not funds from NSMAL) were used on the Father’s funeral and for purchasing the Mercedes Benz car for Andrew’s sole use.  None of the above matters were or could be seriously disputed at trial.  These facts took away the basis of one of the two main claims, and made it pointless for the claim to be pursued to the end of the trial on the tenuous, unpleaded complaint of lack of proper procedure.  It is difficult to draw any conclusion other than that Andrew knew but deliberately allowed the Mother to labour under the wrong impression that Stephanie had misappropriated the money in the Father’s two accounts so she would support the claim with her evidence as a witness.

29. The several letters written by Andrew as attorney of the Mother to Wing Lung Bank is convincing testimony in support of my view above.  Andrew would have known throughout where the money had gone.  Yet he went about conducting a targeted investigation in an exercise plainly to collect and evaluate documentary evidence with a view to building a case against the defendants in this action, which I find lacking in bona fides.  It is hard to believe that the Mother would have engineered the detailed probing of the document trail, repeatedly pressed for provision of documentary evidence from the bank at a time when Andrew and Andrew alone was the Mother’s attorney.  Within a few months of the last letter, this action was commenced.  When the letters are contrasted against the two inconsistent versions of evidence in affirmations filed by Andrew in relation to this application, I am driven to conclude that Andrew was untruthfully trying to obscure or minimise his role as the person or one of them instigating or causing the wholly unmeritorious claim to be filed and prosecuted.

30. Part of the Wing Lung Bank letters focused on an enquiry on the access and termination procedure of the Father’s safe deposit box, and the history of access and termination of Andrew’s own safe deposit box.  In the absence of any evidence from Andrew as to why he had instigated that investigation at a time when only he was the lawful attorney of the Mother, and coupled with the self‑serving Solemn Declaration he made on the contents of the safe deposit box as he remembered it (para 40 of the Judgment refers), a strong inference arose that he was gathering evidence to formulate a claim, which was later pursued in the action.

31. Since the making of the order on 27 March 2014 joining him as a party, Andrew had given various reasons both in person and on affirmation for having difficulties defending the claim for costs against him, and not being able to file evidence within the stipulated time, knowing full well that the nature of the allegation was that he was the instigator of the action.  If it was Angela who was indeed the instigator of this unmeritorious action, it is inexplicable why she was only named as such for the first time in Andrew’s affirmation of 5 June 2014, but not in his affirmation of 23 April 2014.  I note, in particular, that the contents of his latest affirmation in relation to Angela would not have required the study of a vast number of documents to compile, and sits uncomfortably with what he said in his earlier affirmation of 23 April 2014, where he made no mention of Angela’s alleged role in prompting the Mother to commence action nor in any preparatory steps. Even in the latest affirmation, he was only able to show evidence of her causing letters to be written “for estate duty purposes” or relating to the grant of probate.  Without finding the need to come to any conclusion on this issue, I agree with Ms Cheng SC that even if that were true, it does not absolve Andrew from liability in view of my findings above.

32. On the complaint of lack of warning, I note that the possibility of the plaintiff pursuing a costs order against Andrew was raised in the final submissions filed by counsel for the 1^st and 3^rd defendants.  Counsel for Andrew, Mr Tam, accepted that Andrew was present in court when those submissions were repeated at the oral hearing, as indeed he was on most days of the trial.  It was submitted on his behalf that Stephanie and HEL could have brought Andrew in as a party to the action under the cause of action of money had and received based on his use of the new car.  Mr Tam made no clear submissions as to how that cause of action could have been constituted, and it was opaque to me.  On the facts found, the purchase of a new car for Andrew’s use (partly to transport the Mother) out of available family funds, alongside the funding of the funeral, was agreed at the family meeting on the day of the passing of the Father.  The Mercedes Benz was purchased pursuant to the agreement and used by Andrew alone.  It was Andrew who denied the presence of such an agreement and asserted other reasons (eg not for his use but Philip wanted to use it) for the purchase of the car.  On the basis of the facts as asserted by the defence, there was nothing that the 1^st and 3^rd defendants could have relied on to make good a cause of action against Andrew for money had and received.  I do not find that the warning made in defence counsel’s final submissions upon conclusion of the oral evidence was too late or in any way significantly prejudicial to Andrew.  It did not have the effect of tilting the balance to make the costs order against Andrew unjust in the circumstances.

33. Further, contrary to what counsel for Andrew suggested, there plainly was evidence that the Mother was muddled about what Stephanie did or might not have done with regard to the accounts and the safe deposit box.  Her evidence at trial strongly suggested that she had no knowledge or understanding of the documentary evidence relating to the two complaints in the action, and that would include those sought to be obtained by Andrew from the Bank in 2007 purportedly on her behalf.

34. Counsel for Andrew, Mr Tam, relies on the ordinary rule referred to in Symphony Group that a witness called in civil and criminal proceedings will enjoy immunity from any civil action in respect of evidence given during those proceedings. Part of the rationale of that rule is to ensure witnesses give evidence fearlessly.  That is to be regarded as yet another reason why an order of costs against a witness, who is a non-party, should only be granted in exceptional circumstances, and only if justice demands it.  In view of the role of Andrew in the commencement and prosecution of the action, and the strong inference of an ulterior motive on his part in causing and facilitating, if not controlling, the conduct of the action in the name of the Mother against the rival camp of siblings, Andrew is no ordinary witness that the rule seeks to protect.  As he had admitted in his letters written to this court, he was personally interested in the outcome of the proceedings.  Therefore, even without considering the evidence given by him during the proceedings, there is plenty of material, including uncontroverted documentary evidence and letters written by himself, that strongly support my findings of his role in the action and the presence of an ulterior motive in making the action an instrument to achieve some ulterior purpose of his own.

35. For the above reasons, I took the view it was one of the exceptional cases that a costs order against Andrew in the terms applied for would be just in all the circumstances of the case.