CHAN HON, THE ADMINISTRATOR OF THE ESTATE OF POON LAI MING, DECEASED v. BAYER HEALTHCARE LTD formerly known as BAYER DIAGNOSTICS LTD and formerly known as BAYER DIAGNOSTICS LTD and formerly known as CHIRON LTD and formerly known as CIBA CORNING DIAGNOSTICS (H.K.) LTD AND OTHERS

CACV 53/2020

[2021] HKCA 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 53 OF 2020

(ON APPEAL FROM HCPI NO. 32 OF 2016)

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DECISION ON
VARIATION OF COSTS

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Hon Cheung JA (giving the decision of the Court on variation of costs) :

1.  On 31 December 2020, we dismissed the 2^nd and 3^rd defendants’ appeal against the judgment of Bharwaney J.

2.  We made orders nisi that the plaintiff is to have costs of the appeal including costs of his Respondent’s Notice and summons dated 2 December 2020 (for leave to cross appeal out of time) with certificate for two counsel.  The plaintiff’s own costs are to be taxed according to Legal Aid Regulations.

3.  By a summons issued on 14 January 2021, the 2^nd and 3^rd defendants applying leave to vary the costs order nisi so that they will only be required to pay the plaintiff 50% of his costs with certificate for two counsel in respect of the following proceedings :

1) the appeal before us;

2) the leave to appeal application before Bharwaney J;

3) the appeal before Bharwaney J;

4) the summons application before Master Roy Yu dated 3 January 2018.

4. The 2^nd and 3^rd defendants also ask for the costs of their present application.  The application is opposed by the plaintiff.  We will deal with the application on paper.

5.  In brief the basis of the 2^nd and 3^rd defendants’ application is that distinct issues had been raised and the plaintiff had only succeeded in some issues but failed on the issue of submission to jurisdiction which took up a substantial time in the proceedings and accordingly his entitlement to costs should be apportioned.

6.  Although this Court had to address different issues, the 2^nd and 3^rd defendants ultimately failed in their appeal against the judgment of Bharwaney J who dismissed their appeal against Master Roy Yu.  In our view this is an appropriate case that costs should follow the event.  We also note that when the 2^nd and 3^rd defendants sought to vary the costs order nisi of Bharwaney J, they did not argue before him that the costs of Master Roy Yu should be apportioned.

7.  Accordingly the 2^nd and 3^rd defendants’ application is dismissed with costs to the plaintiff to be taxed if not agreed.  We will grant certificate for two counsel and the plaintiff’s own costs are to be taxed according to the Legal Aid Regulations.