THE FEDERATION OF HONG KONG HOTEL OWNERS LTD v. TANG YIN NGOR ELIZABETH

HCA 2018/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2018 OF 2005

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D E C I S I O N

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The Plaintiff applied for withdrawal of the summons filed on 20 January 2006 (“the Summons”) and the Defendant asked for costs.  I granted leave for withdrawal and adjourned the question of costs to be decided by adopting the procedure proposed by the Civil Justice Reform Final Report as appeared in the Consultation Paper as amendment to Order 32 rule 11A(1)(a).

2. The procedure is that the parties submit written representations respectively to the Master who will determine the application on paper without a hearing.  The parties to this action have agreed that I adopt such procedure and the order for written submission is as follows:

(a) The Defendant within 7 days of the direction, and

(b) The Plaintiff within 7 days thereafter.

3. As I understand, the Plaintiff’s reason for withdrawal of the Summons was due to practical consideration without admitting that the application for striking out is devoid of merits.  The Summons first came before me on 27 January 2006.  The Plaintiff asked for the usual directions, among which the Summons be set down for argument before a Master with estimated length of time of 3 hours in consultation with counsel diaries.

4. I have read the pleadings which had been closed.  I realized that the application was an attempt to strike out only certain parts of the defence; even if successful, the case still would have to go for trial.  I understood to obtain a date for hearing the Summons before a Master might take 3 or 4 months, particularly to accommodate senior counsel diaries.  I expressed my concern about the delay to progress of the whole action.  I asked the Plaintiff to have a second thought on the advisability to pursue the Summons.

5. About 10 days after the call-over hearing (with the Chinese New Year Holidays intervening), the parties obtained a date for hearing on 2 May 2006 at 10:00 a.m., as expected, about 3 months after.  I believe after ascertaining the hearing date, the Plaintiff had second thought on the matter.  On Friday, 31 March 2006, the Plaintiff wrote to the Defendant that it intended to withdraw the Summons and to vacate the hearing with no order as to costs.  The Defendant was asked to reply by 5:00 p.m. on Monday, 3 April 2006.  The Defendant complained that it gave her no time to consider as the 3 days included Saturday and Sunday.  However, on 6 April 2006 the Defendant replied that “the Defendant was prepared not to claim costs only if the Plaintiff discontinues this action, where such offer would lapse in 5 days.”

6. On 6 April 2006, the same date as the Defendant’s letter, the Plaintiff took out the summons to withdraw the earlier Summons with “costs of this application and the said Application (i.e. the Summons to strike out) be costs in the cause of the action.”

7. There is no statutory provision stipulating who should bear the costs for withdrawal of the Summons.  Order 21 rule 6 states that the withdrawal has to obtain the leave of the Court but says no more.  No one will dispute the general principles that the court has discretion to award costs and such discretion is to be exercised judicially and against all the circumstances of the case.

8. I accept that to withdraw the Summons is to save the resources of all the persons concerned including the court.  Is this a good reason for not awarding costs to the other side?

9. Before taking out the Summons the Plaintiff should have made its own assessment which way was more appropriate.  The Court has on a number of occasions expressed its concern that actions are often proliferated with inappropriate applications causing delay.  Each party should have considered its own situation before making an application to Court.  It is not for the Court to give advice or opinion.  The parties are in the better situation to assess which is the most preferable way forward.

10. The Defendant has been dragged into the Summons and she has incurred the costs in the preparation and attendance to Court.  I see no reason why she should not be compensated by costs.

11. Accordingly I make the following orders:-

(a) The Plaintiff pay the Defendant the costs of the Summons filed on 21 January 2006 i.e. the application to strike out parts of the Defence (including all costs reserved by the Court) and all costs thrown away because of the withdrawal of the Summons up to and including 31 March 2006 in any event, to be assessed by the Registrar, if not agreed; and

(b) The Plaintiff pay the costs of and incidental to the Summons filed on 6 April 2006 in any event, to be assessed by the Registrar, if not agreed.