SAMANTHA JANE BRADLEY v. SIR ELLY KADOORIE & SONS LIMITED (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS)

FACV No 3 of 2025

[2026] HKCFA 10

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 3 OF 2025 (CIVIL)

(ON APPEAL FROM CACV NO 194 OF 2023)

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JUDGMENT ON COSTS

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Chief Justice Cheung:

1.  This is the judgment of the Court. 

2.  By our judgment dated 9 January 2026, we allowed the appeal in part; set aside paragraph 5 of the Court of Appeal’s Order dated 26 August 2024 and its Order dated 29 November 2024 on costs; granted the plaintiff liberty to apply for leave to amend its statement of claim within 28 days from the date of the judgment, failing which the statement of claim shall be struck out and the plaintiff’s action be dismissed with costs; and gave other directions.^[1]

3.  We also made an order nisi that the defendant shall have the costs of the Amended Summons of 3 February 2023 including the costs of the hearing before Deputy Judge Herbert Au-Yeung (as he then was), 50% of the costs of appeal before the Court of Appeal, and 50% of the costs of appeal before us.  We explained that we had borne in mind that the argument that the plaintiff might obtain injunctive relief notwithstanding the absence of a cause of action in harassment was raised only at the appellate stage, before the Court of Appeal.  At first instance, the sole substantive issue was whether the plaintiff had a viable claim in harassment.  We also said that the costs of the amendment to the statement of claim as well as any costs thrown away by the amendment will be dealt with by the judge hearing the application for leave to amend (if any).[2]

4.  Pursuant to the Court’s directions,[3] the defendant has applied to vary the costs order nisi.[4]  In essence, she seeks the costs of the entire proceedings, including the appeals, on an indemnity basis.  Making reference to certain “without prejudice save as to costs” correspondence, the application is advanced principally on the grounds that the action constitutes an abuse of the process of the court; the plaintiff unsuccessfully sought to prevent her from acting in person; the plaintiff unreasonably rejected settlement terms she offered in relation to the interim injunction application, the action and/or all disputes between the parties, which were more favourable than the outcome of the appeal before this Court; and she is, in substance, the successful party in the final appeal before this Court; along with other matters on which she relies.

5.  On the other hand, the plaintiff has put in submissions seeking minor clarifications of the Court’s order for the avoidance of doubt,[5] in addition to opposing the defendant’s application to vary the costs order nisi.[6] We now deal with these matters on the papers.

6.  It is necessary to remain focused on the costs presently in issue.  We are concerned with the costs of the Amended Summons, which was substantively determined by the deputy judge on 31 May 2023.[7]  That decision led to the appeal to the Court of Appeal and, ultimately, to this Court.  Neither the deputy judge’s original decision nor the subsequent appeals addressed the plaintiff’s application for an interim injunction or “interim interim injunction”.  Although the deputy judge ordered that the action be dismissed, we have not found the statement of claim to be incurable and have granted the plaintiff liberty to apply to amend its pleading within 28 days of our judgment.  According to the court record, the plaintiff has since been granted an extension of time until 4 March 2026 to do so.  A separate summons dated 8 September 2022, issued by the defendant to strike out the statement of claim on the grounds that it was frivolous, vexatious or otherwise an abuse of process (including the alleged prevention of her acting in person), was dismissed by Herbert Au-Yeung J on 2 May 2025[8] following the Court of Appeal’s reversal of his decision to dismiss the action.

7.  It is correct that, prior to the reversal of his decision to dismiss the action, the deputy judge had awarded the defendant her costs of the action partly on the indemnity basis, relying on the “without prejudice save as to costs” correspondence.[9]  However, he was then proceeding on the footing that the action had been dismissed and that the Calderbank correspondence was therefore relevant to costs.  Our position is different.  The action remains extant, and the plaintiff still has time to apply to amend its pleading.  As said, the costs of any amendment as well as any costs thrown away by the amendment will be dealt with by the judge hearing the application for leave to amend.

8.  In these circumstances, we see no basis to deal with the costs of anything in, or of, the action other than the costs of the Amended Summons, its hearing before the deputy judge, the appeal to the Court of Appeal, and the appeal before this Court.  Nor do we find any basis to award costs other than on the standard party-and-party basis.  As the action remains on foot, it is premature to consider the Calderbank correspondence, which concerned attempts to settle the application for an interlocutory injunction, the action, and/or other matters in dispute between the parties, but did not relate to the Amended Summons and the ensuing appeals arising from the deputy judge’s decision as such.  Allegations such as abuse of process, obstruction of the defendant’s right to act in person, and unreasonable refusal to settle have either been addressed by the deputy judge when determining the second summons (from which there has been no appeal), or are not relevant to the applications and issues determined under the Amended Summons by the deputy judge, the Court of Appeal, and this Court.

9.  We have explained the rationale for our order nisi and we adhere to those reasons.  The fact that the injunction issue was not raised before the deputy judge is reflected in our awarding the defendant the entirety of the costs at first instance.  The fact that the point was introduced only by amendment to the grounds of appeal at the appellate stage and never properly pleaded in the statement of claim is reflected in the order nisi that, notwithstanding the plaintiff’s success on that issue, no costs are awarded to it in the Court of Appeal or before this Court.  Rather, under our order nisi, we have awarded the defendant 50% of the costs in the Court of Appeal and in this Court, reflecting her success on the corporate right-of-action issue.  We consider this a fair reflection of the substantive position.

10.  Accordingly, we make the order nisi as to costs absolute.  We grant a certificate for two counsel for the hearing before the deputy judge.  Our order for the costs of the appeal to this Court includes the costs of the applications for leave to appeal in the Court of Appeal and before the Appeal Committee.  We make no order as to costs as regards the defendant’s application to vary the order nisi.

11.  We have directed that, if the plaintiff fails to apply to amend the statement of claim, the action shall be dismissed with costs, without specifying the basis of taxation.  For the avoidance of doubt, if and when that occurs, the defendant will be at liberty to seek her costs of the action on whatever basis she considers appropriate from Herbert Au-Yeung J (or, where that is impracticable, any other judge of the Court of First Instance), and it may then be appropriate to consider the Calderbank correspondence.

12.  As to the plaintiff’s application for clarification of the costs order nisi, for the avoidance of doubt we direct that all costs ordered by us are to be taxed if not agreed, save for those items already summarily assessed by the deputy judge – which assessments shall stand, and be paid forthwith.  Any excess costs already paid by the plaintiff pursuant to the deputy judge’s summary assessment shall be set off against the costs payable by the plaintiff to the defendant under our order as to costs, whether taxed or agreed.  Our order for the costs of the appeal to this Court also covers the costs of the plaintiff’s application for clarification.