ASIA PACIFIC LASIK CENTRE LTD v. QUALITY HEALTHCARE MEDICAL SERVICES LTD AND ANOTHER

HCA 2347/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2347 OF 2004

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R U L I N G

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1.  On 15 August 2005, I heard an appeal by the plaintiff against a decision of the Master in relation to costs in this matter.  I delivered a reserved decision on 23 September in which, by oversight, I did not deal with the question of costs on the appeal.  There have been discussions between the parties and they have been unable to agree on the issue of costs on the appeal, and the matter has had to be argued before me today.

2.  The original appeal was an appeal against the exercise of discretion by the Master on the question of costs.  It was a hopeless appeal, which ought not to have been brought.  It is always difficult to appeal against the exercise of a discretion on costs, particularly in a case like this where it is plain that the Master had taken into account all of the relevant matters that needed to be taken into account.  Counsel for the plaintiff was obliged to argue the appeal on costs by mounting an attack on the whole background factual circumstances of the matter, essentially challenging factual decisions that the Master had made which he was quite entitled to make in the course of hearing the appeal.

3.  The usual rule undoubtedly is that costs on an appeal follow the event, and that they are paid forthwith.  That is the case even when an appeal is brought upon reasonable grounds, which do not succeed.  Any appellant must appreciate that he is exposed to the risk of costs if he chooses to bring in an appeal.  It is all the more so if the appeal is one, like this appeal, which had no proper basis in the first place.

4.  I have listened carefully to everything that counsel for the plaintiff has had to say.  I do not find any basis at all upon which I should depart from the usual rule.  The costs on the appeal and the costs of today’s hearing must be paid by the plaintiff, to be taxed on a party-and-party basis, and must be paid forthwith.

5.  I did not say so in the course of the judgment I delivered, although I thought about the matter in the course of preparing that judgement.  I say it now; it is long past time this plaintiff stopped worrying about issues of costs and got on with the substance of the litigation.  It is time to face up to the reality of the merits of the matter and not continue skirmishes on the boundaries.