CMY v. YDSW

FCMC 3768/2020

[2024] HKFC221

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 3768 OF 2020

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DECISION

(Costs)

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1.  This is the Petitioner’s application for costs of her summons dated 3 November 2023 (“the Petitioner’s Summons”), in which she applied for leave to disclose the financial documents of the present family proceedings and to use the same in the High Court Action, HCA 1592/2023 (“the High Court Action”).

2.  I set out the chronology of salient events below.

DATE	EVENT
19 February 2021	Pursuant to a consent summons filed by the parties, the court made an order relating to the parties’ ancillary relief claims (“the 2021 Order”).
22 June 2022	Parties filed a consent summons to vary the 2021 Order.
20 July 2022	Pursuant to the parties’ consent summons filed on 22 June 2022, the court varied the 2021 Order (“the 2022 Variation Order”).
18 May 2023	The Respondent filed a summons seeking to discharge the 2021 Order.
3 October 2023	By way of a writ, the Petitioner commenced the High Court Action to set aside the 2021 Order.
19 October 2023	The Petitioner’s solicitors (“CRS”) sent a letter to the Court, copied to the Respondent’s solicitors (“Hugill & Ip”), stating, inter alia, they will be seeking leave from the Family Court for disclosure of documents to be used in the High Court.
24 October 2023	1) The Respondent filed an Acknowledgement of Service in the High Court Action and indicated he would defend the action. 2) Hugill & Ip sent a letter to the Court, copied to CRS, stating, inter alia, they would object to the Petitioner’s intended application for leave to disclose documents in the Family proceedings for use in the High Court. The Respondent invited the Petitioner to set out her request in detail for purposes of discussion.
3 November 2023	The Petitioner filed the Petitioner’s Summons for leave to disclose documents in the High Court Action.
4 January 2024	Hugill & Ip sent a letter to CRS stating they would object to the Petitioner’s Summons. The Respondent further requested CRS to provide a detailed list of documents the Petitioner sought to be disclosed in the High Court Action.
8 January 2024	1) Call over hearing for the Petitioner’s Summons. 2) Directions were given for filing of affirmations relating to the Petitioner’s Summons and that the Petitioner’s Summons be fixed for argument to be heard on 26 March 2024.
12 January 2024	CRS sent a letter to the Hugill & Ip confirming  the submissions made at the call-over hearing in that the Petitioner sought disclosure of 4 documents as follows: the Respondent’s 4th and 5th Affirmations, the Respondent’s Form E, and his Answers to the Petitioner’s Questionnaire.
16 January 2024	Hugill & Ip sent a letter to CRS stating the Petitioner did not specify her requests until the day of the call-over hearing. Hugill & Ip further requested the Petitioner to specify the parts of the said documents the Petitioner sought to rely on and to specify the exhibits sought to be disclosed.
19 January 2024	CRS sent a letter to Hugill & Ip setting out, in detail, the paragraphs of the respective affirmations, the sections in the Form E, the answers in the Answer, and the exhibits of the various documents sought to be disclosed.
29 January 2024	Hugill & Ip sent a letter to CRS indicating they will not contest the Petitioner’s Summons.
22 February 2024	At the Case Management Hearing, the parties submitted a consent summons for the court’s approval, with the issue of costs still outstanding.

3.  I shall not repeat the trite principles relating to the award of costs. The principles are succinctly summarized in paragraph 62/0/2 of the Hong Kong Civil Procedure 2025 (Vol 1) and by To J at paragraphs 11 – 20 of his judgment in the case of Melvin Waxman and anor v Li Fei Yu and anor, (unrep), 11 September 2013, HCA 1972/2012.

4.  Having read the correspondences put before me, I find the Respondent could not be faulted for refusing to concede to the Petitioner’s Summons until after the call-over hearing of the Petitioner’s Summons.

5.  Firstly, I note wording of the Petitioner’s Summons is too general, the effect of which is to encompasses all financial documents filed by the Respondent.

6.  Paragraph 1 of the Petitioner’s Summons reads as follows:

“Leave for the Petitioner to disclose the information and documents the Respondent produces and/or has produced under FCMC 3768/2020 in relation to his financial position in around May to July 2022 including the Respondent’s 4^th and 5^th Affirmation and the exhibits referred thereto for the purpose of HCA 1592/2023 and the related proceedings.”

7.  It is trite to say that, disclosure of Family Court documents is not as of right (see Rule 121, Matrimonial Causes Rules, Cap 179A). The court is to balance the interests of the parties (including any prejudice to be suffered), the principle of open justice, and interests of justice when deciding whether leave should be granted for the disclosure of family court documents. I do not repeat the summary of the legal principles which are set out by Deputy District Judge KK Pang (as he then was) at paragraphs 13 – 17 of the judgment in the case of DJ v LRM (unrep) 7 July 2015, FCMC 8507/2013.

8.  In order for the court to consider the Petitioner’s request for disclosure, the court must know the exact documents sought to be disclosed before the court can embark on a balancing exercise to determine if leave should be granted. The wording of paragraph 1 of the Petitioner’s Summons would not have been allowed as is. Hence, if the Petitioner’s Summons proceeded to full argument, she would still be required to specify which document she seeks to have disclosed.

9.  Secondly, Hugill & Ip requested for the details of the Petitioner’s intended disclosure application as early as 24 October 2023, that is, 21 days after the High Court Action was issued. However, the Petitioner did not specify the documents sought to be disclosed until CRS’s letter dated 19 January 2024. This letter was the first time the Petitioner gave specific details on the paragraphs, answers, and exhibits sought to be disclosed.

10.  The Respondent wrote the following in their letter dated 24 October 2023:

“To save costs and time, prior to the Petitioner’s application by way of summons, the Respondent invites the Petitioner to set out her request in detail so that the Respondent can take proper legal advice.”

11.  It is apparent the Respondent was willing to engage in negotiations over the Petitioner’s Summons provided the Petitioner gave details on what documents she sought to have disclosed. Regrettably, the Petitioner never specified the documents she sought to have disclosed until the issuance of the Petitioner’s Summons. Subsequently, it was not until the letter dated 19 January 2024, did CRS properly set out in detail all the documents and the specific parts of those documents the Petitioner sought to have disclosed. Hence, other than the Petitioner’s Summons, CRS never properly responded to the Respondent’s request for particulars of the Petitioner’s Summons until the letters dated 12 January 2024 and 19 January 2024.

12.  Counsel for the Petitioner, Ms Booth, argued the Respondent had all along maintained a blanket refusal to the Petitioner’s Summons and therefore the application was necessitated by the Respondent’s blanket refusal. I disagree.

13.  Although the Respondent maintained his objection to the Petitioner’s Summons up until 29 January 2024, I note the Respondent responded in agreement 10 days after CRS’ letter dated 19 January 2024. For reasons I have given above, I do not find his position to be unreasonable in all the circumstances. Moreover, I do not accept the Petitioner’s Summons was entirely caused or necessitated by the Respondent’s refusal to concede to the Petitioner’s application.

14.  Having considered counsels’ submissions, the relevant correspondence, and the evidence before me, for reasons given above, I do not agree that costs should follow the event.

15.  Having considered the submissions of counsel and the events leading up the Respondent’s consent to the Petitioner’s Summons, I do not find either party to be entirely successful in the Petitioner’s application. I am therefore of the view the parties should each bear their own costs of the Petitioner’s application.

16.  As for the costs of the hearing on costs, I am of the view the Respondent is the successful party. Since the Petitioner has not filed her List of Objections to the Respondent’s Statement of Costs, I shall deal with the summary assessment by way of paper disposal.

17.  I therefore make the following orders:

1)  There be no order as to costs of the Petitioner’s Summons.

2)  Costs of the application for costs (including the hearing of 26 March 2024) be to the Respondent, to be summarily assessed.

3)  The Petitioner shall, within 21 days of this Decision, lodge and serve her List of Objections to the Respondent’s Statement of Costs filed on 2 April 2024. The summary assessment of the Respondent’s costs shall be dealt with by way of paper disposal.