PACIFIC ANDES ENTERPRISES (BVI) LTD (IN LIQUIDATION) AND OTHERS v. NG JOO SIANG AND OTHERS

HCA 688/2019

[2021] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 688 OF 2019

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DECISION  ON  COSTS

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1.  The 2 summonses are both dated 30 June 2020. The first was issued by D1/4/5/6 seeking the variation of the costs order nisi made by this court on 16 June 2020 (“the costs order nisi”) in 2 respects: (1) to provide for a certificate for 3 counsel, and (2) to provide for summary assessment. The second was issued by D2, 7-18 for summary assessment.

2.  The costs order nisi made in favour of the defendants was “with certificate for counsel”.  Upon reviewing the papers, it is clear to the Court that it had intended that there be “certificate for 2 counsel”. Regrettably, an error occurred when the costs order nisi was made. As it did not reflect the court’s intention, it falls to be corrected in that regard.

3.  The application for certificate for 3 counsel arises from the fact that the hearing originally scheduled for 20 and 21 February 2020 (fixed in consultation with the diaries of leading and junior counsel) was adjourned due to Covid-19 and the General Adjournment Period of the courts.  It was later re-fixed (also in consultation with counsel’s diaries) to 7 and 8 May 2020.

4.  After the hearing dates were re-fixed, D1/4/5/6 made applications to the court in late March and early April for the hearing to be heard remotely or, alternatively, for an adjournment on the ground that “it would not be viable” for leading counsel to leave the United Kingdom. Those applications were refused for reasons set out in the Court’s letter dated 8 April 2020.  As a result, on 16 April 2020, D1/4/5/6 instructed a different leading counsel to represent them at the May hearing.

5.  In respect of costs of an adjournment caused by Covid-19 and the General Adjournment Period, the general approach is that there should be no order as to costs since neither party is responsible for the adjournment. In view of the reasons set out in the Court’s letter of 8 April 2020, clearly there is no basis for adopting a different approach in the present case. Accordingly, D1/4/5/6’s application for certificate for 3 counsel is refused.

6.  As regards the variation sought that costs be summarily assessed, the plaintiffs have no serious objection to that course. In the circumstances, and given that the action is unlikely to be determined for some time, the court will accede to the application for summary assessment notwithstanding the mountain of documents involved.

Order

7.  Accordingly, it is ordered that the costs order nisi be varied to read as follows:

“There be an order of costs in favour of the defendants with certificate for 2 counsel, such costs to be summarily assessed and payable forthwith.”

8.  There be no order as to costs on the summonses to vary the costs order nisi save that the plaintiffs be entitled to costs on the first summons issued by D1/4/5/6 but limited to opposing the application for certificate for 3 counsel.

9.  Directions for summary assessment will be given separately.