SIU YAT FUNG ANTHONY t/a ANTHONY SIU & CO v. THE JOINT TRIBUNAL OF THE BAR COUNCIL AND THE LAW SOCIETY

HCAL 1205/2021

[2022] HKCFI 2560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1205 OF 2021

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C O S T S    R U L I N G

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1.  In my Reasons for Decision [2022] HKCFI 1977 on the Reviewability Issue and the Proper Party Issue – the definitions within which I continue to adopt for this Ruling – I made a costs order nisi that there should be no order as to costs.

2.  I explained that I did so on the basis that: the decision canvassed a novel point; I did not think the Solicitor should be punished in costs for naming the two Councils as respondents, rather than the Joint Tribunal; and exercising my discretion overall, and in light of my conclusions, and bearing in mind the assistance received from all those making submissions, that order seemed correct.

3.  I also directed that the order was to become absolute if no variation application was made within 14 days, and that any variation application would be dealt with on paper.

4.  The Solicitor has since invited the Court to vary the costs order nisi to one that:

The costs of and occasioned by the Reviewability Issue and Proper Party Issue be in the cause of the Re-Amended Originating Summons, with certificate for two Counsel.

5.  I have received paper submissions from the solicitors for the Solicitor, the Council of the Law Society of Hong Kong (“Council”), and the Barrister. Both the Council and the Barrister suggest that the costs order nisi should be maintained and be made absolute.

6.  The Solicitor’s suggested variation is based upon the twin principles of (1) the general rule that cost should follow the event applies in judicial review proceedings, so that (2) there must be some justification for depriving a successful party of his costs. The Solicitor then submits that:

(1)  the Reviewability Issue and the Proper Party Issue were “issues” within or arising from the main proceedings;

(2)  those issues could have been dealt with at the substantive hearing, and were not dealt with because they constitute separate ‘events’ but only because of the time necessary to join any relevant party ahead of the substantive hearing;

(3)  it follows that, if the Applicant succeeds in the judicial review, the Barrister ought to bear the costs of the entire action, including those matters dealt with separately in advance;

(4)  the Barrister lost on the Reviewability issue, and did not succeed on the Proper Party Issue (where his stance was that the individual members of the Joint Tribunal, as opposed to the Joint Tribunal itself, should if necessary be made parties);

(5)  the Solicitor plainly did not act unreasonably or improperly in contesting the Proper Party Issue, which the Court recognised as a novel point and the non-joinder of the Joint Tribunal was no reason to dismiss the judicial review.

7.  The Council points out that it did not participate in the determination of the Reviewability Issue and the Proper Party Issue. But its concern is that it ought not to be responsible for any of the costs, irrespective of the outcome of the substantive proceedings. In any event, the Council agrees with the Court that the novel point regarding the identity of parties and the ensuing Reasons for Decision are helpful in clarifying the point as to the question of the amenability of decisions of the Joint Tribunal to judicial review.

8.  The Barrister recognises that the general rule may be that costs should follow the event, but submits that that is only the starting point for consideration; every case requires the exercise of discretion having regard to all the relevant circumstances. The Barrister’s submissions are that:

(1)  the ultimate question is what in the circumstances of the case is required to achieve justice in the costs order;

(2)  the discretion is not to be fettered by adopting a rigid checklist approach;

(3)  whilst there may need to be some justification or reason for the Court to depart from the starting point, to suggest that it can only occur when a party has acted unreasonably or improperly imposes an unjustifiable straitjacket on the exercise of discretion;

(4)  in fact, the authorities identify that it is not necessary to establish that a successful party has acted unreasonably or improperly in raising an issue for it to be deprived of whole or part of its costs;

(5)  further, there is a distinction between refusing costs in favour of a successful party, and the much more unusual or rare circumstances of ordering the successful party to bear the costs of the unsuccessful party;

(6)  the Reviewability Issue and the Proper Party Issue came about in the promotion of proper case management and the Solicitor and Barrister agreed to the process adopted;

(7)  the serious uncertainty surrounding the issues dealt with were reflected in the procedural history of these proceedings, and those issues had greater ramifications and potentially wider impact beyond the parties and the Joint Tribunal in this particular case;

(8)  those issues are too important to be “brushed aside for expediency”, so that was in the interest of justice and in the public interest for the issues to be fully ventilated and determined by the Court;

(9)  the Barrister sought to put forward proper and responsible submissions on those issues, and the assistance provided was expressly acknowledged in the Reasons for Decision.

9.  Having considered these various submissions, it seems to me that my original order is the correct order to make in the exercise of my discretion in the particular circumstances of this case. In essence: (1) there were mixed achievements on the merits amongst the parties; (2) the points were novel and of wider importance than just for the particular parties to the case; (3) all submitting parties made helpful submissions which enabled those issues to be determined with some efficiency and confidence; (4) though the issues arose out of the substantive action, they were sufficiently separate to justify a free-standing costs order; (5) indeed, the arguments involved or impacted parties who were unlikely to be active parties in the substantive judicial review; and (6) the substantive judicial review in the particular case was able to be continued and determined on its merits in the appropriately procedurally correct form.

10.  Therefore, my costs order nisi is confirmed and made absolute. There shall be no order as to the costs of and occasioned by the Reviewability Issue and Proper Party Issue.

11.  For the avoidance of doubt, I also make no order as to the costs of this variation application.