鍾凱研 v. THE GENERAL OF THE SALVATION ARMY

HCAL 302/2023

[2024] HKCFI 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 302 OF 2023

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COSTS RULING

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A.  Introduction

1.  The Applicant was formerly employed by the The Salvation Army, between 1 April 2005 and 30 September 2022.  By a Form 86 dated 27 February 2023, the Applicant sought leave to apply for judicial review against an appeal decision, dismissing her appeal against the decision to issue a written warning to the Applicant for her performance in the course of her employment.

2.  I gave directions for an Initial Response and a Reply to that, and I dealt with the matter on the papers.

3.  In my Decision dated 18 December 2023, [2023] HKCFI 3273, I dismissed the application for leave to apply for judicial review.  I did so on the bases that (1) the intended challenge was to a private law decision or decisions taken within the context of employment, with no sufficient public law connection to make it or them amenable to judicial review, and (2) in any event, the Applicant had failed to identify any reasonably arguable grounds of review with any reasonable prospect of success.

4.  I expressed the preliminary view that costs should follow the event.  But I gave directions for dealing with the question of costs – including any claim to summary assessment – on paper submissions. In accordance with the timetable set by me, The Salvation Army filed its submissions on 3 January 2024, and the Applicant on 17 January 2024. The Salvation Army’s submissions were made by Mr Earl Deng of Counsel.  The Applicant’s submissions were made by Mr Anson Wong Yu Yat and Mr Jason Kung, of Counsel.

5.  Having considered those submissions, this is my Costs Ruling.

B.  Applicable Principles

6.  There is, and can be, no dispute that the cost principles relating to an unsuccessful application for leave to apply for judicial review were set out in Leung Kwok Hung v President of the Legislative Council (No 2) (2014)  17 HKCFAR 841 at §17.  Key points include that:

(1)  The basic principle is that costs lie in the discretion of the court, which discretion is to be exercised flexibly to cater to the circumstances of the case.

(2)  Since applications for leave to apply for judicial review are, under the rules, meant to proceed on an ex parte basis, the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent or putative interested party unless there are special or unusual circumstances which justify such an award.

(3)  The discretion to make such an award of costs should be sparingly exercised, such that good reason will be required before the court would make an order for costs against the applicant.

(4)  Amongst the matters to take into account will be: (a) what has led the opposing party to attend a hearing or participate in the proceedings; (b) if the opposing party has attended or participated at the invitation of the Court, why the Court considered the attendance or participation relevant; (c) whether that party’s attendance or participation has been of material benefit to the court in determining the application; (d) the underlying lack of merits of the application; (e) whether the matter has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge; and (f) whether the public interest litigation exception might have been triggered, where there is a point of law raised and considered for the benefit of the community.

7.  I also accept that other points to be taken into account include that: (a) would-be claimants should not be discouraged from seeking justice by the fear of a penalty on costs if they do not get beyond the leave stage; (b) leave applications should not generally be permitted to become full-scale rehearsals of what would be the substantive hearing of a claim if leave is granted; and (c) there is a justifiable difference to the exercise of discretion on costs between proceedings in the public law context and in general civil law proceedings.

C.  Submissions

8.  Mr Deng submits that there are special or unusual circumstances justifying a departure from the general rule that an unsuccessful applicant would not be ordered to pay the costs of a putative respondent.  He points in particular to:

(1)  The Court being unable on the papers to consider whether leave should be granted, which Mr Deng says was in part due to a lack of full and material disclosure on the part of the Applicant.

(2)  But, on the other hand, The Salvation Army provided all relevant documentary on objective evidence which the Court was able to rely upon, hence providing substantial and helpful assistance to the Court.

(3)  Even without an oral hearing, the applicant has had her application substantively considered.

(4)  The application was entirely misconceived from the start and plainly had no realistic prospect of success, the complaint being clearly matters of purely private law – recognised by the Applicant herself and evidenced in part by the multiple private law actions commenced by her against The Salvation Army.

(5)  On the facts, the Applicant’s allegation that she was unaware of or had no opportunity to dress her work performance was also found to be something which “simply beggars belief”.

(6)  The Applicant used the unmeritorious judicial review application to gain a litigation advantage in her Labour Tribunal claim.

(7)  There is no public interest element to the judicial review application.

9.  In response, Mr Wong submits that the general position should be maintained, and there are no exceptional circumstances to warrant a departure from the general rule that there should be no order as to costs in unsuccessful applications for leave to apply for judicial review.  He submits that:

(1)  The Court made no finding of material non-disclosure on the Applicant’s part, and the complaint of delay in the commencement of proceedings was squarely rejected.

(2)  The Court only invited The Salvation Army to file and serve an initial response, yet The Salvation Army chose to file and serve affirmation evidence of 285 pages, and consisting of impermissible legal arguments.  That The Salvation Army chose to adopt a more time-consuming and costly way to deal with the leave application runs contrary to the purpose of the Court’s direction for an initial response, and contrary to the underlying objectives of Civil Justice Reform.  In any event, there were still evidential gaps which were necessarily filled by the Applicant in reply.

(3)  The Court was able to dispose of the leave application on paper, where the Applicant had not sought an oral hearing.  The mere fact that there has been some consideration of the evidence and merits, and that the Court may have given further reasons than one might normally expect, does not point to an adverse costs order being imposed on the Applicant.  Care should be taken to avoid discouraging would-be applicants from seeking justice by the fear of a penalty in costs.

(4)  Though held not reasonably arguable, the Applicant’s challenge cannot be described as thoroughly ill-conceived or unmeritorious, or frivolous or vexatious.  There were public elements present, but the public elements present were found not sufficient to render the decisions amenable to judicial review.  There is no basis for The Salvation Army to allege bad faith or ulterior motive against the Applicant, where her challenge was clearly genuine.

(5)  In particular, the serious allegation that the Applicant’s leave application was commenced with an ulterior purpose to gain a litigation advantage in other proceedings is baseless.

D.  Decision

10.  I am not prepared to proceed on the basis that the Applicant commenced these proceedings in bad faith, or with an ulterior motive in relation to gaining a litigation advantage in other litigation.

11.  I do take into account that The Salvation Army is – in this context – providing services to the public, partly with the benefit of public funding (though I have held that does not make the decisions sought to be challenged amenable to review).

12.  Nevertheless, I am ultimately persuaded that there are exceptional circumstances in this case as justify a departure from the general rule that an unsuccessful applicant for leave to apply for judicial review should not face an adverse costs order.  Those circumstances include: (1) the lack of amenability to judicial review should have been known to the Applicant, in light of the fact that she herself commenced numerous private law actions, which also might be thought to have constituted one or more available alternative remedies to address her grievance; (2) at least one of the core allegations made by the Applicant – namely that she was unaware of, and had no proper opportunity to address, the matters of concern which ultimately led to the Written Warning and the Appeal Decision – was utterly without basis on the face of the contemporaneous documents, with which the Applicant must have been fully familiar; (3) those documents were largely made available as a result of the materials provided by The Salvation Army; (4) the private nature of the subject-matter of the intended challenge means resources were diverted to this litigation and may to an extent have duplicated resources necessary to deal with other litigation; (5) the Applicant has in effect had a full consideration of the merits of her intended complaint; and (6) The Salvation Army, though partly publicly funded, also relies significantly on fundraising from other private sources.

13.  Therefore, I order the Applicant to bear The Salvation Army’s costs, to be subject to summary assessment on paper.  A Statement of Costs for summary assessment should be provided within 14 days, and the Applicant will have a further 14 days thereafter to provide any List of Objections.

14.  However, I make no order as to costs in relation to the costs submissions and this Costs Ruling.