XCHRX THE INCORPORATED OWNERS OF WAH KAI INDUSTRIAL CENTRE, TEXACO ROAD AND OTHERS v. SECRETARY FOR JUSTICE AND OTHERS

HCAL120/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.120 OF 1999

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D E C I S I O N

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1. The applicants apply to vary the order nisi on costs that I had made when I refused their application for judicial review. The applicants argued that I should not award costs both in favour of the Government and Kowloon-Canton Railway Corporation ("KCRC"), instead, costs should only be made in favour of the Government and not KCRC. I granted extension of time to the applicants to make the present application.

2. The rule relating to costs where there is a number of parties involved is summarized in para.53/14/88 of the Supreme Court Practice 1999. It reads :

"Two sets of costs will not usually be granted, namely to the other party to the dispute and also the court, person, or body whose decision is under review (R. v. Industrial Disputes Tribunal, ex p. American Express Co. [1954] 1 W.L.R. 1118; [1954] 2 All E.R. 764). Where two or more parties appear in the same interest (whether as applicants or as respondents) on an application for judicial review, they will generally be allowed only one set of costs between them. But there is no inflexible rule to that effect; in exceptional circumstances the court will award more than one set of costs (R. v. Registrar of Companies, ex p. Central Bank of India [1986] Q.B. 1114 at 1162; [1986] 1 All E.R. 105, 112). (e.g. the court may award two sets of costs where the interests of the two applicants or respondents are to some extent divergent, or where the issues are very complex and important, ibid., and see also R. v. Monopolies & Mergers Commission, ex p. Matthew Brown plc, Macpherson J., July 17, 1986, and R. v. Panel on Take-overs & Mergers, ex p. Datafin Ltd, December 5, 1986, CA both unreported on this issue.)"

3. The challenge by the applicants was against the Director of Lands to resume the property. The applicants did not join KCRC. They maintained that their cause of action is against the Government only. The interest of KCRC is the same as that of the Government.

4. While this is the position when they commenced the proceedings, the applicants' focus in fact had been shifted as the case progressed. The issue that became central to the case was whether the new method of construction of the tunnel would remove the need to resume the property. This clearly put KCRC into the picture. Complex technical details were relied upon by the applicants. The complexity of the matter clearly required KCRC to respond to these arguments. It had been involved with the project from its inception and the court was clearly assisted by the arguments and evidence advanced by KCRC. This is one of those exceptional cases where costs should be awarded both in favour of the Government and KCRC.

5. Accordingly, the application is dismissed.