KEIRON PETER ARCH ROCHESTER v. GLORY SKY PRECIOUS METALS LTD

HCA 395/2019

[2024] HKCFI 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 395 OF 2019

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DECISION ON COSTS

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A.  INTRODUCTION

1.  In this Decision on Costs, I shall adopt the abbreviations used in the Judgment dated 6 October 2023 (the “Judgment”).

2.  At §§47-50 of the Judgment, this court dealt with the question of costs as follows:

“47. The defendant is partially successful on the Witness Statement Summons. The plaintiff is successful on the Discovery Summons.

48. In the circumstances, the fair order is that each party should bear his/its own costs of the appeal and of the applications before the court below, and I so order. The costs order made by the Master below is set aside.

49. I further order that each party should bear his/its own costs of the argument on the time summons filed by the defendant on 24 July 2023.

50. The above orders as to costs are nisi and shall become absolute in the absence of any application within 14 days to vary the same.”

3.  By Summons dated 24 October 2023 (the “Summons”), the plaintiff applies to vary the costs order nisi, inter alia, as follows:

“(1) Paragraph 2 of the Master’s Order be set aside, save that the Defendant do pay the costs of the [Discovery Summons] to the Plaintiff (being one-half of the costs summarily assessed in paragraph 2 of the Master’s Order);

(2) The costs of the Appeal in respect of the Discovery Summons be paid by the Defendant to the Plaintiff with certificate for Counsel;

(3) The costs of the argument on 25 July 2023 in respect of the Defendant’s Summons filed on 24 July 2023 (i.e., the Time Summons) be paid by the Defendant to the Plaintiff;

(4) Each party do bear his/its own costs of the [Witness Statement Summons], including the costs of the hearing before Master Rita So on 14 December 2022 and the Appeal.”

4.  In short, under the Summons, the plaintiff contends that (i) each party should bear his/its own costs in respect of the Witness Statement Summons; (ii) the defendant should pay the plaintiff the costs of the Discovery Summons in full; and (iii) the defendant should pay the plaintiff the costs of the argument on the Time Summons.

5.  By consent summons, it is agreed between the parties that the application under the Summons be disposed of on paper.

B.  WITNESS STATEMENT SUMMONS

6.  I agree with the defendant’s submission that the defendant has been, to a very large extent, successful in the Witness Statement Summons.

(1)  This court held that both Hui Supplemental WS and Chan WS are relevant and probative (see Judgment at §§18-24), and the application will not cause any disruption to any milestone date and will not cause prejudice to the plaintiff and the balance of considerations falls heavily in favour of allowing the Witness Statement Summons (see Judgment at §§25-26).

(2)  While this court found that the Chan WS contained expert evidence (see Judgment at §30), the objectionable parts were only several lines in three paragraphs in one of the two witness statements.

7.  The objectionable parts also have to be contrasted with the plaintiff’s wholesale objection to the Witness Statement Summons, where the plaintiff opposed the entirety of both statements on the grounds that (i) the late application should be fatal (see Judgment at §§12-17); and (ii) both witness statements are not probative (see Judgment at §§19-22) - all of which were rejected by this court.  As correctly pointed out by the defendant, even the plaintiff’s complaint regarding “expert evidence” was much wider in scope than that accepted by this court (see Judgment at §§29-31).

8.  Moreover, I agree with the defendant’s submission that the plaintiff’s suggestion that costs occasioned by the application for which indulgence is sought can “set-off” the costs for the argument - such that each party should bear their own costs - is entirely unreal.  Any such “Stage 1” costs would be substantially less when compared to the costs of the argument (i) before the Master below (summarily assessed for both summonses at HK$130,000) and (ii)before this court.

C.  DISCOVERY SUMMONS

9.  The defendant accepts that the plaintiff has been successful in the Discovery Summons and the defendant should generally bear costs both here and below.

10.  The appeal essentially involved one narrow issue of whether it is factually evident that there are undisclosed final versions of the “draft” police statements from the emails disclosed by the plaintiff: see Judgment at §§43-45.  The argument on the Discovery Summons was thus very much limited in scope.  In particular, it did not turn on the wider factual background of the case.  It is fair and correct to note that relatively little time and attention was spent on the Discovery Summons.

11.  It is thus fair that less costs are to be attributed to the Discovery Summons than the Witness Statement Summons.  The plaintiff’s suggestion that one-half of the costs assessed by the Master should be apportioned to the former is not objectively defensible.

D.  TIME SUMMONS

12.  In considering which party should bear the costs of the argument on the Time Summons, the following should be borne in mind:

(1)  The complaint by the plaintiff was about the 1-day delay in the service of the Notice of Appeal.

(2)  Despite prior correspondence exchanged between the parties, the plaintiff first raised the complaint in the plaintiff’s Skeleton Submissions dated 21 July 2023 (Friday).  Upon receipt of the plaintiff’s complaint, the defendant’s solicitors immediately wrote to the plaintiff’s solicitors on the same day indicating that the defendant would take out the Time Summons.

(3)  While the defendant’s solicitors were only able to file the supporting 6^th Affirmation of Ching Ming Yu on 24 July 2023 due to the weekend, the defendant has provided explanation as to the delay to this court in the affirmation.

(4)  Notwithstanding the above, the plaintiff proceeded to resist the Time Summons during the substantive hearing on 25 July 2023.

(5)  This court took into the account the circumstances and, importantly, the purpose of the rule of service in Order 58, rule 1(3) of the Rules of the High Court and observed that the 1-day delay in the service of the Notice of Appeal could cause no prejudice to the plaintiff.

(6)  The Time Summons was therefore allowed, and the defendant has accepted that the defendant should pay the costs of the application for which the indulgence was granted in the sum of HK$1,040.00.

13.  The defendant appreciates that the defendant was seeking indulgence from this court and accepted that the defendant ought to bear responsibility for the costs occasioned.  However, on the question of the costs of the argument on the Time Summons, the defendant has a strong case that the costs of the hearing before the court should be granted to the party (ie the defendant) who was successful in the argument as to whether a time extension ought to be granted.

14.  On balance, taking into account all the matters set out at paragraphs 6 to 13 above, I am of the view that this court has not erred or wrongly exercised its discretion in ordering each party to bear his/its own costs of the appeal and in respect of the 3 summonses in question.  This would also avoid wholly unnecessary costs being incurred in the taxation or assessment of the costs of the 3 summonses individually.  The costs order nisi should be upheld.

E.  CONCLUSION

15.  For the reasons sets out above, the Summons to vary the costs order nisi is dismissed.

16.  I order that the costs of and occasioned by the Summons be paid forthwith by the plaintiff to the defendant, such costs are to be summarily assessed with the directions that the plaintiff shall lodge and serve his Grounds of Objection (if any) to the Statement of Costs dated 5 December 2023 already lodged by the defendant within 14 days from the date hereof.  The summary assessment shall be conducted on paper unless otherwise directed by the court.