LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND OTHERS

HCAL 1/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1 OF 2012

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BETWEEN

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JUDGMENT

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1.  The background to this election petition was set out briefly in my judgment in HCMP 1321 of 2012 of 17 January 2013 [“the January judgment”]. In view of my refusal to grant relief to the 1^st Respondent in HCMP 1321 of 2012, after considering the written submissions of the parties, I gave directions on 8 February 2013 for the trial of the following preliminary issue in this election petition,

“whether the 1^st Respondent was not duly elected at the Election because the 1^st Respondent has engaged in illegal conduct, namely the failure to comply with the conditions in section 27(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554), at or in connection with the Election within the meaning of section 49(1)(a)(ii) of the District Councils Ordinance (Cap. 547)”

2.  The 1^st Respondent lodged a Notice of Appeal against the January judgment on 5 February 2013.  The appeal (CACV 22 of 2013) is due to be heard on 29 November 2013, that being the earliest date available provided by the Listing Clerk when the parties attended the Registry to fix date on 6 March 2013.

3.  It does not appear that those representing the 1^st Respondent have taken any steps to have the appeal heard on an urgent basis.  

The application for stay/ adjournment

4.  On 13 March 2013, the 1^st Respondent took out a summons seeking to stay the hearing of the preliminary issue pending the outcome of CACV 22 of 2013, or alternatively an adjournment of the trial of the preliminary issue until the determination of CACV 22 of 2013.

5.  After hearing submissions from the parties, I dismissed the summons on 21 March 2013.  I now give reasons for dismissing the summons.

6.  If the court accedes to the application, the trial of the election petition would be substantially delayed for at least 9 months.  Bearing in mind the statutory scheme for expeditious determination of election petition and the impact such 9 months’ delay would have on the 4-year term of office of a District Councillor, there must be very cogent and solid ground before such a course can be justified.  The statutory scheme for election petition in respect of District Council elections embodies a clear policy for expeditious determination,

(a) Under s 53(1) of the District Council Ordinance Cap 547 [“DCO”], election petition may only be lodged within 2 months;

(b) A petitioner is required to serve the notice of lodgment of election petition within 2 days, see Rule 6(1) District Councils (Election Petition) Rules, Cap 547C [“the Rules”];

(c) Within 5 days, there shall be hearing for directions on security to be given and the giving of security, see s 54 of DCO and Rule 7(3) of the Rules;

(d) A petitioner shall apply within 28 days of giving security for directions for a time and place for trial of the petition, see Rule 10(1) of the Rules;

(e) If a petitioner fails to do so, a respondent may apply within 7 days after the expiry of the 28 days for such directions, see Rule 10(2) of the Rules;

(f) If neither party does so, the court shall fix such date, Rule 10(3) of the Rules;

(g) If a party wishes to appeal against the determination of the Court of First Instance in an election petition, he shall appeal directly to the Court of Final Appeal instead of the Court of Appeal, see s 14(3)(g) of the High Court Ordinance and s 22(1)(c) of the Hong Kong Court of Final Appeal Ordinance;

(h) Appeal can only be brought to the Court of Final Appeal upon discretionary leave being granted by that court, s 22(1)(c) of the Hong Kong Court of Final Appeal Ordinance; and

(i) Application for leave to appeal has to be brought by a notice of motion filed within 14 working days after the judgment of the Court of First Instance, s 53(2) of the DCO.

7.  Mr Smith SC (appearing on behalf of the 1^st Respondent) invited this court to apply the criteria set out in Star Play Development v Bess Fashion [2007] 5 HKC 84 for deciding whether a stay of execution should be granted in determining whether the hearing of the preliminary issue should be stayed or adjourned. He submitted that the 1^st Respondent has an arguable appeal and a refusal of stay or adjournment would render the appeal in CACV 22 of 2013 nugatory. 

8.  With respect, I do not agree that one can simply apply the usual criteria for stay of execution in the present context. Further, even if I were to apply such criteria, I do not think the appeal is arguable.  Nor do I accept the refusal of stay or adjournment would render the appeal nugatory.

9.  Election petition does not simply concern with the interests of the parties to the petition.  There is a strong public interest in the prompt determination of who was  or who was not duly returned as a District Councillor, see Mok Charles v Tam Wai Ho [2010] 13 HKCFAR 762 at para 50.  In a sense, the determination of an election petition by the court is an extended process of the election. Until the final determination of an election petition, the election result is not yet certain and the legitimacy of an incumbent of the questioned seat is subject to challenge.  Given the public interest element (which is absent in ordinary adversarial civil litigation), in my judgment, a mere arguable appeal should not be enough to trigger the consideration of delaying the hearing of the election petition. There must at least be an appeal with a real prospect of success. That was the test I adopted in Ho Chun Yan, Albert v Leung Chun Ying (No 2) [2012] 5 HKC 592 for extension of time to lodge an petition which was upheld by the Court of Final Appeal in Ho Chun Yan, Albert v Leung Chun Ying FAMV 33 of 2012, 13 Nov 2012. 

10.  In any case, whether one adopts the test of real prospect of success or the lower threshold of arguable appeal, I do not think the grounds advanced in the Notice of Appeal satisfy the threshold on the merits. With respect, the 1^st Respondent failed to appreciate the significance of what I said at paras 30 to 44 in the January judgment.  The reason why I considered it unfair to grant any relief to the 1^st Respondent was not because he might not have the support of those named in his campaign advertisement.  Rather it was because it would be unfair to the other candidates who comply with the law before putting down names of people who supported them.  And the reason why I was not satisfied that it was a case of inadvertence was the scale of non-compliance and the lack of explanation for not checking whether he had procured the requisite written consents before he sent out the advertisements.  Further, the grant or refusal of relief under s 31 of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 [“ECICO”] is a matter of discretion.

11.  With great respect to the drafter of the Notice of Appeal (and I should state that it was not drafted by Mr Smith) none of the grounds set out in the Notice of Appeal come remotely close to arguable grounds for challenging the exercise of discretion on the facts and circumstances of this case.  Some of the grounds advanced actually fly in the face of what was said in the January judgment, e.g. the suggestion that this court failed to consider the exercise of discretion based on other reasonable cause as opposed to inadvertence, see paras 11 and 43 of the January judgment; the suggestion that this court failed to consider the effect of illness, see para 42 of the January judgment.

12.  I also reject Mr Smith’s submission that the refusal of stay/adjournment would render the appeal in CACV 22 of 2013 nugatory. Though this court might have disposed of the election petition by the time the appeal is heard, the appeal would still be meaningful in terms of the potential criminal prosecution of the 1^st Respondent for illegal conduct.

13.  Insofar as Mr Smith rested his contention on the impact of the appeal in this election petition, the short answer is that the statutory scheme for determination of election petition never provides for any intermediate appeal against such determination to the Court of Appeal. As mentioned above, the combined effect of s 14(3)(g) of the High Court Ordinance and s 22(1)(c) of the Hong Kong Court of Final Appeal Ordinance is that any appeal in respect of such determination of the Court of First Instance should go directly to the Court of Final Appeal, and such appeal shall only be entertained if discretionary leave is granted by the Court of Final Appeal.  If the 1^st Respondent still considers there is arguable merit in his challenge to the refusal to grant relief despite what I said above, he could make his submissions on challenging such refusal to the Court of Final Appeal when he applies for leave to appeal against the determination of the election petition. What he could not do is to delay the election petition by reference to his appeal in CACV 22 of 2013.     

14.  Moreover, the court must also balance the interest of the 1^st Respondent against the interest of the Petitioner and the interest of the general public.  As mentioned, there is a strong public interest in the expeditious determination of an election petition.  It is not in the public interest that a person who should not be occupying the seat of a District Councillor (and this would be the case of the 1^st Respondent if the Petitioner is successful in the election petition) should yet be allowed to stay on simply because he lodged a dubious appeal.  If the court cannot determine who was duly elected instead, a by-election ought to be held as soon as practicable.  As submitted by Mr Pun, there is also prejudice to the Petitioner if the trial of the election petition is delayed simply because there is an appeal in CACV 22 of 2013. 

15.  For these reasons, I did not consider it appropriate to grant any stay or adjournment.

The preliminary issue

16.  After I dismissed the summons of 13 March, the trial of preliminary issue took place before me on 21 March 2013. 

17.  The undisputed facts are set out in a Statement of Agreed Facts agreed between the Petitioner and the 1^st Respondent.  The more pertinent facts for the trial of the preliminary issue are,

(a) In the District Council election for the King’s Park Constituency of the Yau Tsim Mong District held on 6 Nov 2011, the Petitioner got 1043 votes whilst the 1^st Respondent got 1045 votes;

(b) The total number of valid votes casted was 2,549. There were three other candidates who got 118, 165 and 178 votes respectively;

(c) The 1^st Respondent printed 8,000 copies of his booklets for his election campaign which named 58 individuals and organizations as supporting him;

(d) Out of these 8,000 booklets, 7,272 copies were mailed through Hong Kong Post on 22 October 2011 to registered electors free of postage;

(e) The 1^st Respondent did not obtain consent in writing from 52 of those 58 individuals and organizations before the date of publication;

(f) Those 52 names include those of the chairpersons and vice chairpersons of 14 incorporated owners of multi-storey buildings.

18.  It is not disputed by the 1^st Respondent that illegal conducts have been committed by him in contravention of s 27(1) of the ECICO.  I need not repeat what had been said in the January judgment regarding how the 1^st Respondent came to act in breach of that legal requirement.  Suffice to say in this judgment that I bear in mind the circumstances under which he did what he did in considering the issues which are relevant for the determination of the preliminary issue. 

19.  In his statement of issues filed on 14 March 2013, the 1^st Respondent split the preliminary issue into two questions,

“1. Whether, where a ground for questioning an election to return an elected member of the District Council provided in s 49(1) of Cap 547 is made out, the Court must determine that the person whose election is being questioned was not duly elected, regardless of the actual circumstances of the case.

2.   Whether it should be determined that the 1^st Respondent was duly elected having regard to all the circumstances of the case, including the fact that he did  have the support of the relevant 52 individuals or organizations so that no voters were, or could have been, misled by the relevant publications.”

20.  The other parties have no objection to the analysis of the preliminary issue by reference to these two questions.  I am happy to address these questions in turn.

21.  On the first question, it is a point left open by A Cheung J (as he then was) in Leung Wing Hing v Yuen Kwai Choi [2009] 1 HKLRD 515 at paras 57-58.  Though s 49(1) of the DCO sets out the grounds on which a return may be questioned, and the engagement in illegal conduct is one of the grounds (see s 49(1)(a)(ii) of DCO), there is no explicit statutory provision to the effect that once a ground is established the court must hold that the person in question was not duly elected. Section 55(2) of the DCO requires the court to “determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead”.  The section, on its own, is silent as to how the court shall determine these questions.

22.  However, reading s 55 together with s 49(1), it is clear that the court must determine that question with reference to the grounds for questioning the return.  Otherwise, there is no point in prescribing the grounds in s 49(1). Further, s 49(1)(a) refers to the person declared to have been elected “was not duly elected because” of one of the four sub-grounds set out in (i) to (iv). 

23.  After a ground is established, the court must determine whether it should hold that the return was not valid because the person in question was not duly elected. In Mok Charles v Tam Wai Ho [2012] 3 HKC 398, in the context of an election petition under the Legislative Council Ordinance Ma CJ said at para 78(1),

“The nature of the power given to the Court under s 67(2) is to ensure that persons who truly represent the wishes of the relevant electorate, are elected and declared to be elected. This obviously follows from the right to vote contained in art 26 of the Basic Law …”

24.  The Chief Justice also alluded to the possibility that the court may not be in a position to determine who was duly elected after holding that the candidate returned was not duly elected, see paras 77 and 82.  Mr Smith submitted that the Chief Justice decided at paras 79 to 81 that it was necessary to have regard to all the circumstances in determining whether a person was duly elected.  With respect, that was a misreading of the judgment of the Chief Justice.  At that part of the judgment, the Chief Justice was dealing with the second issue before the Court of Final Appeal.  The second issue is set out at para 6 of the judgment.  On proper reading, it is clear that the court was not addressing the question whether a person whose election is questioned was duly elected.  It was addressing the subsequent question which would arise after it has come to the conclusion that such person was not duly elected: how the court should determine whether somebody else was duly elected instead.  It was in such context the Chief Justice observed that whether a person (viz someone other than the person whose election had been questioned and held by the court to be not duly elected) has been duly elected is a question of fact.  I do not think the Chief Justice addressed the question which confronts us in this trial: how the court should determine whether a person engaged in illegal conduct was duly elected.  For reasons I shall discuss below, our electoral law has placed some special regard on corrupt and illegal conducts of the questioned candidate and this must be taken into account in answering this question.           

25.  In Lee Chun Hung v Sin Kin Man, Francesca [2011] 3 HKLRD 175 para 32, A Cheung J (as he then was) said by way of obiter in an election petition based on material irregularity, after holding that the irregularities were not material,

“On the basis of this finding and because it is beyond any doubt that no matter whether the irregularities occurred or not, Tanya Chan was sure to win by an overwhelming majority, I further hold that in this election Tanya Chan was duly elected.”

26.  Thus, in the context of material irregularities, the court should consider, insofar as it could, the potential impact of the irregularities on the outcome of the election.  That is relevant to the question whether the irregularities were material. But it must not be taken that a petitioner cannot succeed unless he could show that the election result would have been different.  Due to the confidentiality of the votes casted and the large number of voters being involved, this would in many cases be an impossible task.  It should be enough if a petitioner can show that the result might have been affected, in that sense the irregularity in question is material, see Chong Wing Fai Winfield v Cheung Kwok Kwan HCAL 10 of 2012, 1 March 2013.

27.  That should be the approach for a challenge based on irregularities.  Should the same approach be adopted for a challenge based on corrupt or illegal conducts engaged in by the returned candidate? In my judgment, bearing in mind our electoral law as a whole (and that includes the provisions in the ECICO and provisions for disqualifications in DCO), the court should adopt a different approach in determining whether a candidate engaged in such conduct was duly elected.

28.  A person who has been convicted of corrupt or illegal conduct in the past 5 years is disqualified from being nominated as a candidate or from being elected as an elected member of the District Council, see s 21(1)(e)(ii) of DCO.  Further, an elected member who is convicted after being elected would also be disqualified from holding office, see s 24(1)(d)(ii) of DCO and his seat would become vacant, see s 26 DCO.

29.  ECICO is one of the pillars in the maintenance of the integrity of our public elections. Its provisions safeguard the fair, open and honest conduct of an election. Section 3 of the ECICO sets out the objects of the ordinance,

“The objects of this Ordinance are-

(a) to ensure that, as far as practicable, elections to elect the Chief Executive and persons to membership of the Legislative Council, District Councils and certain other public bodies and to be Village Representatives are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct; and (Amended 2 of 2003 s 68)

(b) to regulate electoral advertising so as to ensure, as far as practicable, the fairness and honesty of electoral advertising; and

(c) to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure.”

30.  This statute provides an important legislative underpinning for the constitutional right to vote and right to stand for election in accordance with law in Article 26 of the Basic Law and the right to participate in public life under Article 21 of the Hong Kong Bill of Rights. The observation of the Chief Justice on the duty of the court in Mok Charles v Tam Wai Ho [2012] 3 HKC 398 at para 78(1) must be understood in this light.

31.  Thus, corrupt and illegal conducts are unacceptable in a fair, open and honest election and the legislature has deemed it appropriate to impose criminal sanction on such conducts as well as disqualification from public office.  Though there could be differences in seriousness and the moral blameworthiness for different conducts which are labeled as corrupt or illegal under the ECICO, the legislature did not distinguish between them in terms of disqualification from elected office.  Apart from relief for illegal conduct under s 31 of the ECICO, the legislature only provided for another escape route under s 30, which reads,

“(1) If, on the hearing of an election petition alleging that a candidate was not duly elected because the candidate engaged in corrupt or illegal conduct at the election, the Court finds that the conduct was engaged in by an agent of the candidate, the Court must nevertheless determine the candidate to have been duly elected if satisfied that-

(a) the candidate did not personally engage in the conduct; and

(b) the conduct did not materially affect the result of the election; and

(c) the candidate took reasonable steps to ensure that no corrupt or illegal conduct was engaged in at the election in relation to the candidate; and

(d) neither the candidate nor any of the candidate's agents engaged in any other corrupt or illegal conduct at the election.

(2) If the Court makes a determination under subsection (1) in respect of particular conduct, it must also order that the candidate concerned is not to be subject to any disqualification under the relevant electoral law in relation to that conduct.”

32.  In the absence of relief under s 31 and a declaration under s 30, a returned candidate who has engaged in corrupt or illegal conduct is bound to lose his or her seat upon conviction by way of disqualification as per s 24(1)(d)(ii) of DCO. Therefore the clear implication is that for those who cannot obtain relief under ss 30 or 31 of ECICO, the court should determine that the questioned person was not duly elected. It is difficult to see any justification for determining such person to be duly elected when he or she would inevitably be disqualified at a later stage upon conviction.

33.  Otherwise, a candidate who has only bribed one voter may argue that since he has won by a large margin, such corrupt conduct is not material and the court should determine that he has been duly elected despite such conduct. That cannot be right.

34.  In light of these statutory provisions, the court must adopt a stricter approach in respect of questioned candidate who is found to have engaged in corrupt or illegal conducts at or in connection with that election for which no relief is granted under ss 30 or 31.  It is not difficult to see why the court cannot regard a candidate who has engaged in corrupt and illegal conduct for which no relief is granted under those sections as not being duly elected.  Had such conduct been revealed and if there were to be a trial before the poll, that candidate would have been disqualified.  Why should such person fare better simply because the finding of corrupt or illegal conduct is made after the poll in an election petition?

35.  Mr Smith and Mr Chang submitted that one cannot read too much into these statutory provisions. They submitted that the disqualification provisions are only applicable upon conviction. Mr Chang submitted that the nature and character of proceedings in election petition, relief application under s 31 and criminal prosecution are different. Counsel said a refusal of relief under s 31 should not be equated with a conviction in criminal proceedings. He said the standard of proof and the evidence before the court might be different. He also said that one cannot assume there would be prosecution even if the court refused relief. Counsel emphasized that even it is clear that a questioned candidate has engaged in illegal conduct and no relief is granted under s 31, the court should still enquire whether that person is duly elected by reference to all relevant circumstances. Counsel did not formulate any principle in terms of the weighing of the relevant circumstances. But they accepted that a candidate who bribed only one voter could not escape from a determination of not being duly elected notwithstanding that he won by a margin of greater than one vote.  

36.  With respect, whilst the nature and character of election petition is different from a criminal prosecution, the fact remains that the disqualification provisions in the DCO and the relief provisions in ss 30 and 31 of the ECICO form part of the electoral law in the context of which the court’s power under s 55 DCO in an election petition falls to be considered. As I said, s 55 itself is silent on how the court should determine whether a person was duly elected. It does not say that once a ground in s 49(1)(a) is made out, the court must determine that the questioned candidate was not duly elected. But neither does it say otherwise. Though the disqualification provisions are triggered only upon conviction, they are part of the context in which this court must have regard to when it exercises its power in s 55. These disqualification provisions reflect an underlying policy that persons found to be engaging in corrupt or illegal conducts should not remain in public office. Likewise, ss 30 and 31 of the ECICO are part of the context informing how the court should make a determination under s 55. These provisions set out the legal policy (as adopted by the legislature) defining cases where a person found to have engaged in illegal conducts might be exonerated. The court should not exercise its power under s 55 in a manner inconsistent with such policies.

37.  I am not impressed by the submission as to the possibility of no prosecution being brought against an incumbent candidate who has engaged in illegal conduct and to whom the court has refused relief under s 30. Given the clear legislative policy on disqualification and the refusal of relief by the court, it would be surprising that the Director of Public Prosecution would deem it appropriate not to prosecute such a case given the public interest in upholding the integrity of our public election in accordance with the ECICO and DCO. Nor is there any substance in the submission that the evidence in criminal prosecution might be different. By the time of prosecution, the evidence used in the application for s 31 relief (and the evidence in the election petition, if any) would be available.  An applicant seeking s 31 relief would usually admit the illegal conduct in the s 31 application.  Issues like inadvertence or other reasonable cause are not relevant in criminal prosecution as the criminal court has no power to grant such relief.    

38.  Mr Chang referred to a possibility that a respondent to an election petition might not have applied for relief under s 31. That is not the case before us. I am prepared to leave open the possibility of the court adopting the considerations in s 31 in determining whether such respondent was duly elected after finding that he has engaged in illegal conduct. However, once the court has reached a decision in a separate set of s 31 proceedings, there is no room for such reconsideration.

39.  Therefore, in respect of the first question in the 1^st Respondent’s statement of issues, the answer is that it depends upon the ground itself.  If the ground is the engagement in corrupt or illegal conduct by the questioned candidate at or in connection with that election, the court must determine that he or she is not duly elected once it is satisfied that corrupt or illegal conduct has been committed and no relief would be granted under ss 30 or 31. In this judgment, I am confining to this specific situation in my conclusion on the first question. I leave open the analysis in respect of the other grounds under s 49(1)(a) of the DCO.

40.  On the facts of the present case, I find the 1^st Respondent to have engaged in illegal conduct at or in connection with this election in his publication of the booklets without complying with the conditions in s 27 of ECICO.  Relief has been refused under s 31.   He did not apply and nor can him obtain relief under s 30 as the conditions in s 30(1) cannot be satisfied.  Therefore, I determine that he was not duly elected.

41.  Even if I were wrong on that first question, assuming that the court could somehow exonerate him by referring to all the relevant circumstances, I would still determine that the 1^st Respondent was not duly elected.  Given the difference in votes obtained by the Petitioner and the 1^st Respondent and the scale of non-compliance with the law by the latter, the scale of the publication in question and bearing in mind the prominence of those the 1^st Respondent named as supporters in his election advertisements without first obtaining the requisite written consents, I have no difficulty in concluding that the outcome of the election might have been affected by such illegal conducts.

42.  Mr Smith placed much emphasis on the fact that the 1^st Respondent actually had the support of these people.  I shall not repeat what I had already said in the January judgment as to the nature of the evidence in that regard.  But what I would repeat is that the fairness of the election (which our election law seeks to protect under the ECICO) does not simply hinge upon whether he actually had their support.  And it is wrong to suggest that the electorate were not misled. They were misled insofar as they believed that the 1^st Respondent had complied with the law in procuring written consents of these people before he put down their names in his election advertisement.  They were also misled into believing that they were comparing like with like when they compared the names of the supporters of the Petitioner (and those of the candidates other than the 1^st Respondent) with those of the 1^st Respondent in their respective election advertisements.  

43.  Mr Smith submitted that the purpose of requiring written consents under s 27 of the ECICO is to avoid dispute about whether support has been given by those named in election advertisement.  Counsel went on to contend that since there is no dispute in that regard (as the 52 supporters confirmed their support afterwards), there had not been any abuse on the part of the 1^st Respondent.

44.  Whilst the avoidance of dispute might be one of the objectives of s 27, I do not think that is its only objective.  As I said in the course of the hearing, oral support can be very different from a written consent for one’s name to be used in an election advertisement declaring one’s support for a candidate openly and publicly. There are people who would give oral support readily but reluctant to give consent for their names to used in such manner. In the present case, the 1^st Respondent had procured written declarations from the 52 supporters (signed between February and April 2012) verifying their consents for the use of their names in the 1^st Respondent’s election advertisement. However, for the reasons I have canvassed in the January judgment, they are not as good as written consents procured prior to the publication of the advertisement.      

45.  What is more important is the upholding of the integrity of the election in terms of fairness safeguarded by the criminalisation of illegal conducts under the ECICO and disqualification of those committing such wrong from holding public office. Even assuming that the court should exercise its power under s 55 with some residual discretion, this remains a weighty consideration.   

46.  Therefore, the Petitioner succeeds in this election petition. I determine that the 1^st Respondent was not duly elected.  I cannot determine who was duly elected instead (and Mr Pun did not contend otherwise).  There has to be a by-election.

47.  A copy of this judgment will be sent to the Secretary for Constitutional and Mainland Affairs pursuant to s 55(5) and the Director of Public Prosecutions pursuant to s 55(7) of the DCO.

48.  Parties agreed that costs should follow the event. I order the 1^st Respondent to pay the costs of the Petitioner and the 2^nd Respondent and Intervener, such costs to be taxed if not agreed.