THE PUI YING MIDDLE SCHOOL OF HONG KONG AND OTHERS v. SO SHING YIT ERIC AND OTHERS

HCA 1991/2016 and HCA 3314/2016 (Heard Together)

[2023] HKCFI 1288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1991 OF 2016

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3314 OF 2016

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BETWEEN

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D E C I S I O N

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1.  I have considered the parties’ written submissions on the question of apportionment of costs, and will not repeat every point made therein. Costs, and I believe including apportionment of costs, is a matter of discretion anyway.

2.  The difference between the parties lies in how much costs should be apportioned to the 1^st Action (HCA 1991/2016) and the 2^nd Action (HCA 3314/2016). The plaintiff is ordered to pay the defendants’ costs in the 1^st Action; but only 70% of the defendants’ costs of the 2^nd Action.

3.  The defendants contend that each action should account for half of their costs. The plaintiff says only 1/6 of the defendant’s costs should be apportioned to the 1^st Action, based on the time estimates in the Listing Questionnaire and the actual length of trial.

4.  I do not believe the question of apportionment could be approached on an arithmetic basis, and hence I would not say that the time estimates in the Listing Questionnaire would necessarily always be a good source of guidance in apportionment.

5.  But I must say that my impression was that the 2^nd Action was, by far and a long way, the more “central” matter dealt with at trial, and as the plaintiff submitted, once I had decided the 2^nd Action in the way I did, as I said in Judgment §§273 and 274, the 1^st Action rather simply fell away.

6.  The defendants submit that the 1^st Action was maintained until the end. But that is not a very cogent reason for contending that there should be equal apportionment – it just means that the 1^st Action had to be dealt with, and some costs should be attributed to it.

7.  Nor I am persuaded that the fact that the issues in the two actions are intertwined is a good reason for equal apportionment. It is true that the two actions are connected, but I must say that the parties’ (and my) attention at the trial was overwhelming more focused on the 2^nd Action.

8.  Accordingly, I think it is wrong for the apportion the defendants’ costs in the way the defendants contend. I should think that, in the circumstances, 1/6 of the defendants’ costs being apportioned to the 1^st Action would be a fair answer.

9.  I therefore accede to the plaintiff’s request, in §1.8(a) of their written submissions, and direct that:

“The defendants’ costs in the Two Actions are apportioned as to 1/6 for HCA 1991/2016 and 5/6 for HCA 3314/2016 respectively”.

10.  Since I have wholly agreed with the plaintiff, I would order, on a nisi basis, that the costs of this application for apportionment be paid by the defendants to the plaintiff.