RE THOMAS LAI

HCAL 150/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 150 OF 2013

____________

____________

____________

___________________________

D E C I S I O N   O N   C O S T S

___________________________

1.  By judgment handed down on 28 February 2014, I refused the application out of time for leave to apply for judicial review. The putative respondent has subsequently applied for costs against the applicant. The applicant opposes that application. This is my decision on the question of costs based on the written submissions received from both parties.

2.  The court has a broad discretion on costs in a situation such as the present.  The starting point, as stated by the Court of Appeal in Sky Wide Development v Building Authority [2011] 5 HKLRD 202 at §28, is that “it takes unusual circumstances for an award of costs to be made against an applicant for leave and that the Court should be sparing in the exercise of such discretion”.  In Leung Kwok Hung v The President of the Legislative Council [2013] 2 HKC 580 at §80, Cheung CJHC used the phrase “exceptional cases” to describe the circumstances in which the court would award costs in favour of the putative respondent or interested party.

3.  In the present case, while the submissions of the putative respondent’s counsel on the leave application had been of considerable assistance to this court, ultimately I do not think that there are such unusual circumstances as to warrant an order of costs against the applicant. 

4.  As regards the matters relied upon by the putative respondent to take this case out of the ordinary, first, in the context of the present question, there is ex hypothesi insufficient merit to justify the grant of leave.  On the approach endorsed by the Court of Appeal, that alone cannot be a circumstance justifying an award of costs against the applicant.  If there is a spectrum of “unarguability” within failed applications, I would not place the applicant’s position here in the same category of “hopelessness” as that in, for example, Leung Chun Ying v Ho Chun Yan Albert, FAMV 21, 22, 24, 25, 26, 32, 33 and 34 of 2012, 10 January 2013, at §7.

5.  Secondly, although at the end I concluded that the incorporation of each enclave into a country park may raise different questions and has to be considered individually, I think it is fair to say that the applicant did try to represent the interests of all the villagers of all recognised villages.  Even on the basis of my decision, the applicant’s application did not concern only himself but had potential relevance for all villagers in his village.

6.  Thirdly, it is true that the applicant was some two months out of time for his application for leave.  That however was not the only ground of my decision.  It was one of the relevant matters I took into account in coming to the conclusion I did.  The putative respondent submits that it was entitled to be heard on the application for extension of time.  In general it seems to me whether a putative respondent should be heard first before the order is made, or left to apply to set aside the order if it wishes after leave is granted on an application for leave made out of time (for example in a case where the delay is very short), is a question for the court’s discretion.  The question of extending time is in this case very much bound up with the question of leave.  I do not read the authorities as saying that a putative respondent is as a rule entitled to costs of a failed application for leave where the applicant has to apply for an extension of time.

7.  Finally, as regards the putative respondent’s role, at the risk of being pedantic, I would point out that I gave liberty to the putative respondent to attend the hearing of the application for leave if it so wished, but did not positively invite its presence.  As it transpired, the putative respondent did file evidence, appear by two counsel, made helpful written and oral submissions, and prevailed in the outcome.  But the fact that the hearing thereby became inter partes and relatively fully argued does not mean that costs should follow the event.  It appears from Sky Wide that a reason for the court’s approach on costs in these situations is to ensure that applicants should on the whole be able to seek relief without fear, if leave was refused, of being saddled with the respondent’s costs at that stage: see R (Mount Cook Land Ltd) v Mount Eden Land Ltd [2004] CP Rep 12 at §48 cited by Tang VP in Sky Wide at §27.  In keeping with the court’s approach of ordering costs in these cases only in sparing circumstances, I consider that my discretion should be exercised against an order of costs.

8.  I decline therefore to award costs in favour of the putative respondent, and I further make no order of costs in relation to the arguments on costs.

(Godfrey Lam) Judge of the Court of First Instance High Court