CHU WOAN CHYI AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 32/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 32 OF 2003

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J U D G M E N T

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Introduction

1. In February 2003, the first four applicants, residents of Taiwan, were refused permission to enter Hong Kong although each of them was in possession of a multi-entry visa.

2. Thereafter, the applicants sought by way of judicial review to quash the decisions refusing them entry and to have them declared ultra vires the powers of the respondent, the Director and/or are unlawful.  In addition, two of the applicants (the 3^rd and 4^th applicants) sought a declaration that the force employed by the Director’s officers to remove the applicants from Hong Kong, being inappropriate and/or excessive, was unlawful.

3. The decisions challenged were described in the applicants’ second amended notice of application for leave to apply for judicial review as follows :

“	(1)	The decision(s) of the Director of Immigration dated 21 and/or 22 February 2003 to refuse the 1st to 4th Applicants permission to land in the HKSAR;
	(2)	The decision of the Director of Immigration on 21 February 2003 to cause or permit his servants or agents to use inappropriate and/or excessive force to remove the 3rd and 4th Applicants from the terminal building at Chek Lap Kok Airport and drag or carry them on to an aircraft.”

4. Leave having been granted, the substantive application was set down for hearing in September 2005.  However, by way of a summons issued on 12 September 2005, the applicants sought an order for discovery against the Director.  Initially, the Director opposed the granting of any such order.

5. The applicants considered this to be an exceptional case where discovery was necessary for all the issues in the judicial review to be placed squarely before the court.  In the result, the dates set down for the substantive hearing were employed to argue the question of discovery.

6. During the course of argument, the Director conceded that limited discovery should be made but was not prepared to make the far fuller discovery sought by the applicants.

7. It is the Director’s case that much of what the applicants seek by way of discovery is sensitive material which, in the public interest, should not be disclosed.  It is to be stressed, however, that the issue of whether any documentary material is protected by public interest immunity is not the subject of this judgment.  The issues canvassed before me have been limited to discovery.  Public interest immunity may be argued at a later date, consequent perhaps upon this judgment.

Background

8. On 21 February 2003, the first four applicants flew into Hong Kong.  They had a joint purpose.  It was to attend a conference to be held at a local hotel.  The conference concerned the teachings and practice of a movement known commonly as Falun Gong or Falun Dafa.

9. Falun Gong, founded on the teachings of Li Hongzhi, may be described as a system of philosophy broadly based on Buddhism that incorporates regimes of physical exercise, meditation and a search for metaphysical truths.  As such, being a philosophy that sets a code of living for the purpose of spiritual transcendence, it has been recognised by many as a religion.  In the Mainland, Falun Gong is condemned as a cult and has been declared illegal.  In Hong Kong, however, it has at all times remained legal.

10. As I have said earlier, when they arrived at Chek Lap Kok Airport, all the applicants held multi-entry visas.  They had apparently all visited Hong Kong before and had been granted leave to enter for short periods of time.  Each of them asserts that they were at the time – and remain – persons of good character.

11. However, upon their arrival at Chek Lap Kok Airport, when attempting to pass through immigration, each of them was denied entry.  Each was held for a time and then placed on an aircraft back to Taiwan.  In the course of their removal, so it is asserted, officers of the Immigration Department used wrongful force against two of them.

12. In early April 2003, the four applicants commenced their judicial review proceedings against the Director.  They were joined by the fifth applicant, a Hong Kong resident and at the material time the chairman of the Hong Kong Association for Falun Dafa.  The association had been one of the organizers of the conference.  The sixth applicant, the association itself, was, I understand, joined at a later time.

13. The applicants challenged the lawfulness of the decision to refuse them entry to Hong Kong and the alleged decision to use force against two of them in the course of their removal from Hong Kong.  They did so on a number of different grounds.  Fundamental, however, was the assertion that the decisions to refuse the applicants permission to enter was based solely or substantially on their religious beliefs and affiliation, that is, on their adherence to the Falun Gong movement, and their intention to attend a Falun Gong conference while in Hong Kong.  As such, it was said, the decisions were motivated by and founded upon religious discrimination and were therefore ultra vires the powers of the Director and/or unlawful.

14. Freedom of thought, conscience and religion is a constitutionally protected right.  By way of illustration, arts.18(1) and (3) of the International Covenant on Civil and Political rights, incorporated into Hong Kong law through art.39 of the Basic Law, stipulate :

“Everyone shall have the right to freedom of thought, conscience and religion.  This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

…

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. …”

15. In order to better understand why the applicants have sought discovery, something must be said of their individual grounds of challenge.  In respect of the refusal to permit the first four applicants to enter Hong Kong, these grounds, albeit not exhaustively, may be summarised as follows :

(1)     The decisions, being made on the grounds of religious affiliation, were not made on rational or legitimate grounds of immigration control and were therefore ultra vires.

(2)     The decisions, being made on the grounds of religious affiliation, breached the Bill of Rights, arts.32, 41 and 141 of the Basic Law and also the International Covenant on Civil and Political Rights, that covenant being incorporated into Hong Kong law through art.39 of the Basic Law.

(3)     The decisions were unreasonable in that the applicants were all persons of good character who held return tickets and in respect of whom there could be no rational belief that they would do anything to harm the public good while in Hong Kong.

(4)     The decisions were not made in consideration of the circumstances of the individual applicants and their reasons for coming to Hong Kong and, as such, were constrained by an unlawful fettering of the Director’s discretion.

(5)     Alternatively, absent an unlawful fettering of discretion, the decisions were capricious as other Falun Gong adherents were permitted into Hong Kong, there being no rational basis for admitting those other adherents and excluding the applicants without any form of individual inquiry.

(6)     The decisions were in breach of the applicants’ legitimate expectations, those expectations being based on the issue to them of multi-entry visas which they were entitled to expect would not, absent rational reason, be ignored.

16. The Director denied that the four applicants had been refused permission to enter Hong Kong solely or substantially because of their religious beliefs or affiliation.  He further denied that the individual circumstances of the first four applicants had been ignored.

17. The Director emphasised that the applicants themselves accepted that several hundred Falun Gong adherents had been permitted to enter Hong Kong for the purposes of the conference.  In this regard, for example, in an affirmation dated 3 April 2003, the first applicant had said that the conference had been —

“… attended by about 800 people including 600 overseas practitioners who attended Hong Kong specially for the conference.”  [my emphasis]

18. In the affirmation of the 1^st applicant, of course, the applicant had gone on to say :

“However at least 82 of Falun Gong practitioners were refused entry, 80 of whom had come from Taiwan.  Three conference speakers from Taiwan and one from Japan were refused entry into Hong Kong.”

19. In rejecting the assertion that religious adherence simpliciter had been the basis for the decisions to refuse entry, the Director said that each of the applicants had been refused entry because each of them – their cases being considered separately – were believed on that occasion to pose a security risk to Hong Kong which was not outweighed by any compelling personal or compassionate grounds favouring their entry.

20. In an affirmation dated 8 February 2005, Mr Lau Wing Yiu, the Senior Immigration Officer who formally advised the applicants that they were refused permission to enter Hong Kong, said that the applicants had been posted on an immigration ‘watchlist’.  The stated reason for their inclusion was because, in respect of each of them, their entry into Hong Kong would pose a security risk.

21. As to the purpose of the watchlist, in an affirmation dated 22 September 2005, Mr Tong Hin Ming, who at the material time was the Acting Permanent Secretary for Security, explained that :

“There is a practical need for and a public duty on the part of the HKSAR Government to keep away individuals whose presence in Hong Kong poses, or may pose, a risk to the security, public order or public safety, or the peace and stability of the HKSAR, or whose entry into the HKSAR is not in the public interest.  I understand and verily believe that responsible governments all over the world adopt similar policies and practices in exercising immigration control.  The Watchlist is a means to enable such functions and duties to be carried out.”

As to the nature of the watchlist, Mr Tong said :

“The Watchlist is a short-hand description of a system of information gathering, preparation and display related to the carrying out of the functions and duties referred to above.  Where the matter concerns one of security, the Security Bureau and other related Government departments will be in possession of confidential and sensitive information and intelligence concerning the person in question.  Much of this information, and the source and the means of gathering the same, is privileged and it would be against the public interest to disclose it either in court proceedings or otherwise.  Such information will include more specific reasons underlying any decision to place the person on the Watchlist on the grounds set out above.

After such information is assessed, and a decision is made to place the person’s name on the Watchlist, the computer system at the Immigration Department will show the name of the person put on the Watchlist and the general reason for it.  In the case of security risks, the information which is available to the front line immigration officers sitting at the point of entry will merely show that the concern is one of security without further elaboration….”

Mr Tong went on to say that, although front line immigration officers will not be privy to any more detailed information, that detailed information will be available – on a strict ‘need-to-know’ basis – to more senior officers.

22. In an affirmation dated 8 February 2005, Senior Principal Immigration Officer, Mr Choy Tak Po, who was Commander of the Airport Division at the material time, said that a person may be placed on the watchlist for a wide variety of reasons.  As he explained it :

“There may be different reasons why a person is put on the Watchlist as a result of the relevant information and intelligence obtained by the Immigration Department and such information and intelligence may come from the Immigration Department, other government departments or other sources.  For example, a person’s name may be put on the Watchlist because he is a person subject to a deportation order, or he is a person who is subject to a court order prohibiting him from leaving the HKSAR, e.g. a ward of court, or a tax evader.  Other examples include visitors who have been blatant overstayers or illegal workers, aliens who are known to have committed serious offences or breached immigration rules in the HKSAR, known drug traffickers, suspected terrorists, fugitives wanted by the Interpol, etc.  Another reason for a person being put on the Watchlist is that the entry of such person into the HKSAR may pose security risks to the HKSAR.”

23. In his affirmation to which I have referred, Mr Tong Hin Ming said that concerns which may be classified as ‘security concerns’ would include the following :

“	(a)	The person’s entry is not conductive to the public good.
	(b)	The person’s presence in Hong Kong poses, or may pose, a risk to the security, public order, or public safety, or the peace and stability of the HKSAR.”

24. As explained by Mr Choy Tak Po in his affirmation of 8 February 2005, the posting of a person’s name on the watchlist is not an automatic bar to entry.  However, it does mean that —

“… his or her intended entry into or departure from the HKSAR will be subject to close examination before a decision is reached whether to grant or refuse leave to the person’s intended entry into or egress from the HKSAR, having regard to the reason for the individual’s name appearing on the Watchlist and the circumstances of the particular case.  For example, if a person is put on the Watchlist because his or her entry into the HKSAR would pose security risks to the HKSAR, that person will be examined at the control point when he or she seeks to enter the HKSAR.  He or she will be interviewed as to the purpose of his or her visit.  Having considered all the information available, if the conclusion is that entry of the person into the HKSAR would pose security risks to the HKSAR and in the absence of extenuating circumstances outweighing the security concern, the person will be refused permission to land.”

Mr Choy continued :

“It must be emphasized that each case is decided on its own merits according to the circumstances of the case.  Insofar as entry into the HKSAR is concerned, a person whose name appears on the Watchlist will not automatically be refused permission to land in the HKSAR, unless such refusal is necessitated by law, e.g. subject of a deportation order.  If, for example, there is some overriding humanitarian reason why a person whose name appears on the Watchlist should nevertheless be granted entry on a particular occasion, such person may exceptionally be given permission to land in the HKSAR.”

The chain of command

25. On the evidence it was apparent that the decisions made on the night and early morning of 21 and 22 February 2003 to refuse the first four applicants permission to enter Hong Kong were made in the context of a chain of command, the ultimate decision being made by the most senior officer.  The chain may be described as follows :

(1)     The officer at the control point had access to the watchlist but only to the information that the applicant was posted on the list on the basis that his entry to Hong Kong would pose a security risk.  He did not have access to details of the nature of the security risk.  That officer referred the applicant to an Immigration Officer.

(2)     The Immigration Officer also had access to the watchlist but only to the same information available to the officer at the control point.  The Immigration Officers’ function was to interview the applicant in order inter alia to discover his or her reasons for coming to Hong Kong.  The Immigration Officer then passed the results of the interviews to a Senior Immigration Officer.

(3)     The Senior Immigration Officer had access to the watchlist also but again only to the information available to the junior officers who had already dealt with the applicant.  It was the function of the Senior Immigration Officer to recommend to the Commander of the Airport Division whether, in his opinion, in light of the information obtained by way of the interview, there were or were not compelling reasons to allow entry despite the presence of the applicant’s name on the watchlist.

(4)     The Commander of the Airport Division made the final decision whether to grant or refuse permission to the applicant to enter Hong Kong.  The Commander in respect of each of the applicants was Mr Choy Tak Po.  In order to exercise this responsibility, the Commander did have available to him more detailed information, information not appearing on the watchlist, as to why the applicant was considered to be a security risk. 

26. In the circumstances, it is apparent that decisions to refuse the first four applicants permission to enter Hong Kong were made not simply on the basis that they represented a security risk but, in each instance, in the light of more detailed information available to the Commander of the Airport Division as to the nature and extent of that perceived risk.

The nature of the information available to the Commander

27. In his affirmation of 23 September 2005, Mr Choy Tak Po denied that membership of the Falun Gong per se would give rise to security concerns.  In this regard, he said :

“To address a concern raised by the Court as to whether it was revealed in the Watchlist that the 1^st to 4^th Applicants were Falun Gong practitioners, I can confirm that this was not the case.  Indeed, to the best of my knowledge and belief, membership of or association with the Falun Gong does not of itself give rise to security concerns.  Further, I can say from my experience and knowledge of the Watchlist that membership of or association with the Falun Gong is not a reason for placing any individual on the Watchlist or for excluding her from entering the HKSAR.  This is amply borne out by the Applicants’ own evidence showing that:-

(a)      The Falun Gong Experience Sharing Conference took place as planned by its organizers on 22^nd February 2003 in Hong Kong;

(b)      It was attended by some 800 participants;

(c)      Of those 800 participants, approximately 600 were Falun Gong practitioners who were admitted into the HKSAR for such purpose.”

28. I have earlier made mention of the affirmation of Mr Tong Hin Ming dated 22 September 2005.  That affirmation was placed before me during the course of the hearing.  In that affirmation, Mr Tong volunteered certain information but only to the extent, he said, that would not prejudice the public interest :

“… the Security Bureau and related Government departments had, in the case of the 1^st and 4^th Applicants come to the view, based on information and intelligence obtained, that the entry into the HKSAR of a number of individuals including the 1^st – 4^th Applicants would pose security risks to the HKSAR.  The intelligence obtained included intelligence to the effect that, certain persons including the 1^st – 4^th Applicants were involved with some other individuals engaged in organizing disruptive activities which pose threats to the public order in Hong Kong.  In the view of the Security Bureau and related departments of the HKSARG, the admission into Hong Kong of said persons including the 1^st – 4^th Applicants would, by reason of their involvement with the above-mentioned persons, by contrary to the public interest. …”

The extent of discovery sought

29. The extent of the discovery sought by the applicants was amended during the course of the hearing.  As I understand it, in the final analysis, the extent of that discovery was set out in a schedule to the following effect :

“	1.	Documents which were available to the decision makers Lau Wing Yiu and Choy Tak Po which contain information relating to the First to Fourth Applicants being placed on a document maintained by the Respondent described as ‘Immigration Watchlist’ (‘the Watchlist List’) …
	2.	Entries and other data in the Watchlist relating to the First to Fourth Applicants;
	3.	Records of the dates when the names of the First to Fourth Applicants were placed on the Watchlist;
	4.	Any part of the Watchlist or associated documents which provides general guidance to the staff of the Respondent in processing applicants for entry to Hong Kong whose names appear on the Watchlist;
	5.	Any part of the Watchlist or associated documents which provides guidance to the staff of the Respondent in relation to any particular categories of person which include or may include the First to Fourth Applicants, such as Falun Gong practitioners or entrants from Taiwan; and
	6.	If it be the case that the names of any of the First to Fourth Applicants after being placed on the Watchlist were substantially removed, all documents relating to the said removal(s) including entries and related data, and dates of removal
	7.	Documents recording reasons why the names of the First to Fourth Applicants were placed on the Watchlist.
	8.	Documents recording reasons for removal from the Watchlist of the names of any of the First to Fourth Applicants whose names have been removed therefrom.
	9.	All other documentary information available to Mr Choy Tak Po about the nature of the threat the public order said to be posed by the First to Fourth Applicants …”

30. In respect of para.1 of the schedule, Mr Choy Tak Po was, as I have said, the Commander of the Airport Division; Mr Lau Wing Yiu was the officer who made recommendations to Mr Choy, he being apparently number three in the chain of command.

Concessions by the Director

31. During the latter part of the hearing, Mr Daniel Fung SC, leading counsel for the Director, accepted that discovery should be made in respect of paras.1 and 7 of the Schedule as I have recorded it in para.29 of this judgment.  He did not accept that discovery was required in respect of the remaining paragraphs, paras.2, 3, 4, 5, 6, 8 and 9.

A consideration of the legal principles

32. In Reid v. Secretary of State for Scotland [1999] 2 AC 512, 541F-542A, Lord Clyde said that :

“judicial review involves a challenge to the legal validity of the decision.  It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case.  It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do.  It may have abused or misused the authority which it had.  It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed.  As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required.  Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply.  But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.”  [my emphasis]

33. It follows, therefore, that in judicial review proceedings, discovery will not be ordered pursuant to O.24, r.3 of the Rules of the High Court if it is necessary only to ascertain the true merits of a decision. 

34. The burden of showing that discovery is necessary rests on the applicants in this matter.  The applicants are required to show that the discovery they still seek is necessary either for disposing fairly of their cause or for saving costs : see O.24, r.8 of the Rules of the High Court.  As Kaplan J expressed it in Au Shui-yuen, Alick v. Sir David Ford, Deputy to the Governor and Others [1991] 1 HKLR 525 :

“It is not sufficient to show that these documents are relevant.  It is not enough to show that production is ‘desirable’ …”

35. On the authorities, the key question, it seems to me, is whether in this matter the discovery that is still sought is necessary for determining the issues of fact which have arisen and remain in dispute.  This key question of course, must be considered in the context of the justice of the matter.  In O’Reilly v. Mackman [1983] 2 A.C. 237 at 282C-D, Lord Diplock observed :

“Discovery of documents (which may often be a time-consuming process) is not automatic as in an action begun by writ, but otherwise Order 24 applies to it and discovery is obtainable upon application whenever, and to the extent that, the justice of the case requires …”

36. I also take into account Lord Justice Nolan’s observation said in R. v. Secretary of State for the Environment ex parte London Borough of Islington and the London Lesbian and Gay Centre [1997] JR 121 (CA) that :

“Disputed questions of fact do not normally arise in judicial review cases, but they can of course arise and they may be crucial.”

37. In this case, clearly, the disputed questions of fact are crucial.

38. It is understandable, of course, that the applicants should be anxious to know why exactly they were refused permission to enter Hong Kong and the core basis upon which those decisions were made.  The ‘core basis’, of course, involves a journey of discovery to the original process of intelligence gathering and a consideration perhaps of the accuracy of the information gathered.  However, while the applicants’ anxiety is understandable, as was said in R. v. Secretary of State for Defence ex p. Sancto (1992) The Times, 9 September, the rules of discovery in cases of this kind must not be adapted to create a ‘Freedom of Information Act’. 

39. The applicants’ case must therefore stand unaided unless documents, which includes affidavits and affirmations which are before the court, either do not deal with the matters raised by the applicants or give rise to a suspicion that the Director’s evidence does not give a full and fair picture of the relevant events.

40. Finally, I observe that, unless there is good reason to think otherwise, the accuracy of affidavits and affirmations filed by the Director are to be accepted as accurate and complete.  This is not to say that the court, in matters of contested discovery, should allow itself to be ‘more executive minded than the executive’ (see Liversidge v. Anderson [1942] AC 206 at 244, per Lord Atkin), it is simply, in my opinion, that the regularity of process must be presumed unless there is good reason to think otherwise. 

My conclusions

41. In light of these principles, I turn now to consider the areas of discovery which are disputed.  In so doing, I remind myself that the decision challenged upon which this application for discovery rests is essentially the first decision stated in the applicants’ second amended notice of application; namely, the decision (or decisions) of the Director to refuse the applicants permission to enter Hong Kong :

(a)     Paras.2 and 3 of the schedule

42. On behalf of the applicants, Mr Harris submitted that evidence generally of what was said of the first four applicants either on the watchlist or through it and evidence of the dates when they were first put on the watchlist would cast light on the curious pattern of allowing the applicants into Hong Kong at one time and refusing them admission at another.  That, in turn, he suggested would go to show that, despite protestations to the contrary, the applicants were refused entry, to the knowledge of one or other decision-makers, because it was known that they were Falun Gong adherents wishing to attend a Falun Gong conference.  In short, it would cast light on whether, as the applicants alleged, their refusal to permit them to enter Hong Kong was based essentially on their religious affiliation and the concern that, while at the conference, and because of the nature of the conference, they may organise activities which, although religious in nature, would not be to the liking of the Hong Kong authorities. 

43. In this regard, of course, it is to be noted that in the affirmation of Mr Tong Hin Ming, referred to in para.28 of this judgment, he admitted that there was intelligence to the effect that the applicants might be engaged in organising disruptive activities.  It is not pure speculation, in my view, to infer from that disclosure that such activities would be directly allied to their adherence to the Falun Gong movement.

44. Of course, religious activists may pose a security threat.  Radical adherents to many forms of religion have through history committed a broad range of crimes and involved themselves in activities which attempt to threaten the stability of the civil state.  That of course is not the issue of this judgment.  But it does seem to me that the issue of when the restriction of activism constitutes religious discrimination may well be a central issue in the substantive hearing.

45. That being the case, it does seem to me that, as Mr Harris put it, the discovery requested in paras.2 and 3 could ‘inform or explain’ the information available to the decision-makers on the night and early morning of 21 and 22 February 2003 and therefore be necessary for the fair disposal of the application for judicial review.

(b)     Paras.4 and 5 of the schedule

46. It seems to me that if, as part of the watchlist or associated documents, the Director’s officers were on the night and early morning of 21 and 22 February 2003 guided in their decision making by any general guidance in respect of persons on the watchlist or the categories into which they fall, those guidelines would form part of the basis upon which the decisions were made.  As such, it seems to me that they would be necessary to determine the contested issues affect in this matter.  Accordingly, I consider the discovery requested under these two paragraphs to be justified.

(c)     Paras.6 and 8 of the schedule

47. I do not see that the fair disposal of the factual issues in contest will require knowledge of when, if at all, any of the applicants were removed from the watchlist and, if so, why.  This strikes me as a fishing exercise in an attempt to generally bolster the case for the applicants. 

(d)     Para.9 of the schedule

48. Mr Harris, for the applicants, added this final paragraph to his schedule at the last minute in order, as he put it, to err on the side of caution.  It could be argued that it is superfluous in light of the concession made that discovery should be made in respect of paras.1 and 7 of the schedule.  However, if there was ‘other information’(not covered by paras.1 and 7 of the schedule) available to the decision-makers on the night and early morning of 21 and 22 February 2003 which influenced or may have influenced their decisions then, in my judgment, evidence of that information would be necessary for the fair disposal of the contested issues of fact in this matter, it being remembered that these issues of fact are so central that they may well, of themselves, determine the application for judicial review.

Orders

49. For the reasons given, discovery is ordered in respect of paras.1, 2, 3, 4, 5, 7 and 9 of the schedule recited in para.29 of this judgment.

Costs

50. I have not heard from the parties on the issue of costs.  However, doing the best I can, it seems to me that the equities would dictate that costs should be in the cause.  I will therefore make an order nisi to that effect.  Should the parties seek another order, the matter may be set down for hearing at a convenient stage of these proceedings.