CAMPBELL RICHARD BLAKENEY-WILLIAMS AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND OTHERS

FACV No 13 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 13 OF 2011 (CIVIL) AND

(ON APPEAL FROM CACV NO 66 OF 2009 AND CACV NO 268 OF 2009)

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FACV No 14 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 14 OF 2011 (CIVIL)

 (ON APPEAL FROM CACV NO 268 OF 2009)

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Between:

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DECISION ON COSTS

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Mr Justice Tang NPJ:

1.  We made an order nisi that:

“(a) The order made by the Judge as to the costs of both the trial of the preliminary issues and the trial itself, namely that Cathay should pay the plaintiffs’ costs, should be reinstated, because the effect of my judgment is that the plaintiffs have largely won on each of the claims made against Cathay. It is true that the amount of damages they have recovered for defamation is significantly less than what the Judge awarded them, but their claim for any damages for defamation was resisted by Cathay, and they therefore had to come to court to get relief”

2.  The respondents have applied to vary the order in relation to 4 of the appellants on the ground that each of them[1] has recovered less than the payment into court in respect of him.  The fact that these plaintiffs individually have recovered less than the respective payment into court is not disputed.  

3.  In relation to 3 of these plaintiffs (these plaintiffs) the respondents ask that the costs order nisi should be varied so that each such plaintiff pays the respondents’ first instance costs (including the costs of the Preliminary Issue Summonses) after the relevant payment in.

4.  In relation to the seventh plaintiff, namely, the late Mr England, who died at an early stage of the proceedings although his claim had been continued by his personal representative,the respondents, presumably as a concession, ask there should be no order as to costs.

5.  The respondents submit that a split order as to costs of this sort is the usual costs order consequent upon a failure by a plaintiff to beat a payment into court (pre-CJR as in this case).

6.  The appellants submit however that when looked at in the round this is a case where the respondents would have had to run the same defence and incur the same quantum of costs irrespective whether there were 17 or 14 appellants. Moreover,since collectivelythe appellants recovered more than was paid in, the appellants acting together were successful in beating the payments in.

7.  The plaintiffs’ claims were distinct claims.  In such circumstance, insofar as these plaintiffs have failed to better the payment in, their position is analogous to co-plaintiffs who have failed.  In Viscount Gort and Others v Rowney and Another, (1886) 17 QBD 625 2 plaintiffs joined in one action, claiming separate and distinct causes of action, one plaintiff succeeded and the other failed. The English Court of Appeal held that the successful plaintiff was entitled to recover from the defendant the whole of his costs of the action and the defendant was only entitled to recover from the unsuccessful plaintiff the costs occasioned by joining such plaintiff.

8.  The respondents also ask for a set off between the amounts due to themand the amounts due to the other plaintiffs under the split order because these actions have been pursued by the plaintiffs collectively. Such an order was made in Kingv Sunday Pictorial Newspapers Ltd(1924)41 TLR 229, where a mother and daughter sued a newspaper for defamation.  The daughter withdrew her claim after the filing of the defence. The mother proceededto trial and was awarded a farthing by the jury.  Even so,she was awarded her costs by Lush J.   When the learned judge came to deal with the daughter's costs he ordered that she should pay such extra costs as the defendants have incurred by reason of her having been joined but no more. He said:

“…I have no doubt that the plaintiff, Mrs King, would take care that the defendants received these extra costs from her daughter who withdrew, but as a matter of principle I think I ought to order, and I do order, that the defendants be allowed to set off these extra costs against those payable to Mrs King. For the purpose of set-off, I am, in my opinion, entitled to treat the plaintiffs as one. The view that I have expressed in stating that the defendants are only entitled to the extra costs occasioned by the joinder of the plaintiff, Miss Phyllis King, is supported by the judgment of Lord Justice Bowen in Viscount Gort v Rowney …and my order as to set-off is supported by the judgment of the Court of Appeal in the case of Umfreville v Johnson...”

9.  In Umfreville v Johnson (1875) LR 10 Ch App 580 the English Court of Appeal ordereda set off but the basis upon which the order was made is not clear. In that case two holders of distinct properties joined as plaintiffs in a suit to restrain a nuisance. The plaintiff whose estate was farther away from the source of the alleged nuisance failed though the plaintiff whose property was nearer succeeded.  Without elaboration, the Court of Appeal ordered a set off of such costs.

10.  A set off would benefit the respondents if they are unable to obtain payment from any of these plaintiffs.  In the present case,the joinder was entirely proper andprobably saved costs.  We see no reason why the other plaintiffs should be burdened with the costs of any of these plaintiffs. 

11.  The order we make is that so far as these plaintiffs are concerned,each of them should pay to the respondents such extra costs as the respondents have incurred by reason of the joinder of each such plaintiff but no more. In the case of the deceased plaintiffwe order that there be no orders as to costs. In relation to the other plaintiffs the costs order nisi in their favour will be made absolute.