CHIU LUEN PUBLIC LIGHT BUS CO LTD v. PERSONS UNLAWFULLY OCCUPYING OR REMAINING ON THE PUBLIC HIGHWAY NAMELY, THE WESTBOUND CARRIAGEWAY OF ARGYLE STREET BETWEEN THE JUNCTION OF TUNG CHOI STREET AND PORTLAND STREET AND/OR OTHER PERSONS HINDERING OR PREVENTING THE PASSING OR REPASSING OF ARGYLE STREET AND OTHERS

HCMP 3028/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3028 OF 2014

(ON AN INTENDED APPEAL FROM HCA NO. 2086 OF 2014)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

1.  On 21 November 2014, we refused to grant leave to the 2^nd Defendant to appeal against the grant of interlocutory injunction by Au J on 10 November 2014.

2.  By reason of Section 14AB of the High Court Ordinance, there cannot be any appeal from our decision on refusing such leave.

3.  On 19 December 2014, solicitors for the 2^nd Defendant issued a Notice of Motion on his behalf seeking leave to appeal to the Court of Final Appeal.  The 2^nd Defendant (and those advising him) were aware of the difficulty in terms of Section 14AB.  In order to overcome it, the 2^nd Defendant put forward a challenge to the constitutionality of Section 14AB by reference to Article 82 of the Basic Law in the Notice of Motion. 

4.  That notice of motion was issued whilst the 2^nd Defendant’s legal aid application was pending.  The court and the Plaintiff were notified of the legal aid application by a memorandum dated 19 December 2014 (filed in court on 22 December 2014).

5.  The matter in these proceedings follows the same course as the application for leave to appeal to the Court of Final Appeal in HCMP 3090 of 2014.  We shall not repeat the details which have been set out in the judgment in HCMP 3090 of 2014 to be handed down on the same date as this judgment.

6.  In a letter of 30 January 2015, solicitors for the Plaintiff indicated that they would ask for costs of the Notice of Motion upon its withdrawal by the 2^nd Defendant.   In another letter of 9 February 2015, they produced a statement of costs in the total sum of $115,650.  

7.  The upshot is that by a summons of 16 February 2015 filed in these proceedings, the 2^nd Defendant seeks leave to withdraw the Notice of Motion of 19 December 2014 with no order as to costs.

8.  Mr Dykes and Ms Yu advanced the same submissions as they did in HCMP 3090 of 2014 in support of the 2^nd Defendant’s stance.

9.  For the reasons set out in our judgment in HCMP 3090 of 2014, we hold that the Plaintiff is entitled to some costs in respect of the Notice of Motion notwithstanding the legal aid stay.

10.  In this instance, the costs incurred by the Plaintiff in these proceedings went further than those incurred by the plaintiffs in HCMP 3090 of 2014.  In addition to the perusal and consideration of documents and correspondence, the Plaintiff had also engaged counsel to give advice on the challenge to section 14AB.  Counsel fees in the sum of $46,000 were incurred in that respect.  There also appeared to be more costs incurred in terms of communication and conferences with client in the present case.

11.  Mr Wong submitted on behalf of the Plaintiff that it was reasonable for the Plaintiff to take such preparatory steps notwithstanding the legal aid stay.  He referred to the history of the proceedings up to our judgment of 21 November 2014 and the expeditious disposal of the various applications soon after legal aid was granted previously.  Since the challenge to section 14AB is a new point and the Plaintiff only briefed a junior counsel for the case, Mr Wong submitted that it was reasonable for the Plaintiff to take the precaution of seeking counsel advice on this point during the interim period.

12.  Mr Wong further submitted that whether the costs incurred were reasonable should be left to the taxing master and he asked for an order for costs in favour of the Plaintiff, to be taxed if not agreed.

13.  The Plaintiff did not put forward an additional statement of costs in respect of the costs of the argument on the summons of 16 February 2015.

14.  Unlike the situation in HCMP 3090 of 2014, we do not find ourselves to be in a position to do a summary assessment in respect of costs incurred by the Plaintiff in the present case up to 9 February 2015.  Nor are we in a position to assess the costs of the summons.

15.  Since we had ordered taxation in respect of the costs of the proceedings up to 21 November 2014, there would be taxation in any event.  In the circumstances, we shall adopt the course suggested by Mr Wong.

16.  We grant leave to the 2^nd Defendant to withdraw the Notice of Motion of 19 December 2014 and order the 2^nd Defendant to pay the costs of the Notice of Motion including the costs of the summons of 16 February 2015, such costs are to be taxed on party and party basis if not agreed.

17.  Without in any way pre-empting the decision of the taxing master on the reasonableness of costs incurred in terms of the counsel advice on section 14AB, we need to point out that the time frame within which the court had dealt with the applications prior to 21 November 2014 cannot be indicative of the time frame within which the Notice of Motion would be dealt with.  Obviously, there had been substantial change of circumstances since the enforcement of the injunctions in question.  Whether the Plaintiff can justify the seeking of advice despite the legal aid stay on other grounds is a matter for the taxing master.