XCHRX SO SUK v. HONG KONG HOUSING AUTHORITY AND ANOTHER

HCAL 242/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 242 OF 2000

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DECISION ON COSTS

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1. This is a hearing regarding the costs of an application for leave to apply for judicial review. By a "Notice of Application for Leave to Apply for Judicial Review" filed on 10 April 2000, the Applicant made an ex parte application for leave. On 13 April 2000, the Court directed that there be an inter partes summons for that purpose. The documents relating to the leave application were served on the 2 Respondents on 25 April 2000. Further, the inter partes hearing was scheduled for hearing on 15 September 2000, that is, today.

2. After a series of without prejudice correspondence, the parties agreed that the Applicant was to seek leave to discontinue the application. This agreement is evidenced by a letter dated 11 September 2000 from the Applicant's solicitors and signed by all parties concerned. The parties, however, disagree over the issue of costs. The 2 Respondents opine that the Applicant should pay the costs of this application whereas the Applicant submits that there should be no order as to costs.

3. RHC O. 62 r. 3(2) provides that costs should follow the event except when it appears to the Court that in the circumstances of the case some other order should be made. The Supreme Court Practice 1999, para. 62/3/6, states that there is no reason to apply different principles to costs of judicial review proceedings.

4. The Applicant argues that the circumstances of this case justify some other costs order to be made. I find that the Applicant in essence relies on 2 matters:

(1) the application for leave could be made ex parte according to the rules and an inter partes hearing was only directed by the Court; and

(2) the discontinuance of this application is only caused by the Applicant's lack of means.

5. As regards the first matter, it is of course up to the Applicant, based on the legal advice given to him, to decide whether to pursue the application after he was notified that the Court had directed that there be an inter partes hearing. If, for whatever reason, he does not wish to proceed with the application then it ceases. However, if he wishes to (and does) proceed, there is no reason (in the absence of special circumstances) why he should not face the same consequence as to costs as any other litigants.

6. As regards the second matter, a litigant's impecuniosity is usually not a matter relevant to his liability for costs. I do not find that there is any unusual feature in this case to depart from this principle.

7. The Applicant appears to be also arguing that there was no need for the Respondents to incur any costs because they were informed earlier of the Applicant's intention to discontinue. I disagree with this argument because the Respondents at least needed to peruse the papers before they could properly decide whether to accept the Applicant's proposals.

8. In so far as it may be necessary to do so, I find that this application is most likely to fail on the merits in any event.

9. For these reasons, I agree with the Respondents' argument that the Applicant should pay the costs of this application.

10. The parties also disagree over the amount of costs payable and the means by which they are to be ascertained. The 1st Respondent's solicitors ask for costs totalling $40,575.51 ($34,575.51 being profits costs and $6,000.00 being counsel's fee). The 2nd Respondent's solicitors ask for costs totalling $33,380.00. In the course of the without prejudice correspondence, the 2nd Respondent's solicitors have provided a breakdown of their costs in their letter dated 14 August 2000. No breakdown has been provided by the 1st Respondent's solicitors.

11. As regards whether the costs are to be taxed, it appears to me that this is a case where I should exercise my discretion to fix the costs pursuant to O. 62 r. 9(4)(b). Having looked at the breakdown provided by the 2nd Respondent, it appears to me that the reasonable gross sum should be $20,000.00. There is no reason why the 1st Respondent should be entitled to more costs. I therefore order that the Applicant is to pay to each Respondent $20,000.00 being the gross sum specified for the costs of this application.

12. The Applicant asks for 3 months' time to pay those costs. I consider the Respondents' proposal to be more appropriate. There will therefore be a stay of execution of the judgment debt conditional upon the Applicant making punctual payment of $10,000.00 on or before 16 October and $10,000.00 on or before 15 November with the usual default clause.