HUANG JINLING v. APPLE DAILY LTD AND ANOTHER

HCA 1633/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1633 OF 2012

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DECISION ON COSTS

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Introduction

1.  This is the decision on the plaintiff’s costs of her application for leave to make a statement in open court (pursuant to RHC Ord 82 r 5) in each of the above two actions (“the leave applications”).

2.  The leave applications were unopposed by the defendants (and leave was granted at the end of the hearing on 11 April 2014), but they oppose the applications for the costs of the leave applications to be paid by them.

Background

3.  The plaintiff commenced the above two actions in September 2012 on the ground she had been defamed by the defendants in articles published respectively in “Apple Daily” on 14 March 2012 (HCA 1633/2012) and in “Next” magazine on 29 March 2012 (HCA 1634/2012).

4.  Sanctioned payments were made in both actions and those payments were accepted by the plaintiff respectively in August 2013 (HCA 1633/2012) and in September 2013 (HCA 1634/2012).

5.  Besides the above, costs of the above two actions were also agreed:

(a)   in relation to HCA 1633/2012, the parties’ agreement as to costs was contained in (or evidenced by) the solicitors’ letters both dated 4 November 2013;

(b)  in relation to HCA 1634/2012, the parties’ agreement as to costs was contained in (or evidenced by) the solicitors’ letters respectively dated 29 November 2013 and 2 December 2013.

6.  In short, in both actions, the parties agreed to a lump sum payment in “full and final settlement of [the plaintiff’s] claim for costs and disbursements [of the actions]” (the language used by the defendants), or in “full and final settlement of [the plaintiff’s] costs of the Action” (the language used by the plaintiff).

Costs of the leave applications

7.  It is undisputed that the costs of the leave applications were costs incidental to the costs of the actions, and that:

“… generally … the costs of any formal application … for permission to make a unilateral statement [in open court], and those of making the statement itself, will fall to be paid by the defendant as an integral part of the costs of the action” (emphasis supplied)

Phillips v Associated Newspapers Ltd [2004] 1 WLR 2106, para 3 and 12.

8.  For completeness, further to the agreements on costs of the actions referred to in para 5 above, the cheque for paying the agreed costs in relation to HCA 1633/2012 was sent to the plaintiff on 11 November 2013.

9.  The plaintiff first intimated to the defendants she wished to make a statement in open court in both actions on 3 January 2014 (slightly less than two months after the said costs agreement for HCA 1633/2012 and about one month after that for HCA 1634/2012).

10.  In view of the above chronology, I agree with the defendants the costs agreements must objectively have been intended to also cover the costs of the leave applications.

11.  That the costs of the leave applications must have been within the parties’ contemplation at the time of the costs agreements is reinforced by the fact that counsel who was engaged to draft the statement of claim in both actions, and who also appeared for the plaintiff in the leave applications, was also the counsel who appeared in two earlier applications for leave to make a statement in open court which were referred to in the plaintiff’s skeleton submissions (para 6(1) and (2) thereof):

(1)   Lau Pui Sai Bessie v Lee Chi Ting also known as Karen Lee, HCA 1353/2009 (11 April 2013);

(2)   Lau Pui Sai Bessie v Sudden Weekly Ltd and Another, HCA 1355/2009 (17 February 2014).

Conclusion

12.  By reason of the above matters, I agree with the defendants that this is not a proper case for the costs of the leave applications to be borne by them.

13.  Accordingly, no order as to those costs will be made.

Other matters

14.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision on costs and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.