WITHERS (a firm) v. ANTONIA BASILE also known as ANTONIA BASILE WILSON

HCMP 1162/2016

[2019] HKCFI 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1162 OF 2016

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DECISION ON COSTS

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1.  In my judgment handed down on 4 February 2019 in these proceedings: [2019] HKCFI 325, I dismissed the Firm’s appeal (subject to a minor exception) and made an order nisi that the Firm was to pay the Wife the costs of the appeal. At the hearing I permitted the parties, after the judgment, to deal with costs by written submissions.

2.  By a letter of her solicitors dated 18 February 2019, the Wife applies for a variation of the costs order.  The ground advanced is that the Wife had by a letter dated 16 November 2018 and marked “sanctioned offer”, offered to settle the proceedings on terms which, it is said, the Firm had failed to beat.  The Wife, accordingly, contends that the Firm should pay the costs of the appeal on an indemnity basis.

3.  By a letter dated 22 February 2019, the Firm opposed the application.  No further submissions have been received from the Wife whether before or after she filed a Notice to Act in Person dated 29 March 2019.

4.  The Wife’s offer was as follows: (1) the Wife “abandons and this continues all the claims including costs in the Proceedings [ie HCMP 1162/2016]” against the Firm; (2) the Firm “abandons and discontinues all its claims including costs in the Proceedings” against the Wife.  This would be in full and final settlement of all the claims in the Proceedings.  In short, it was an offer for both sides to “drop hands” completely.

5.  This offer was not accepted by the Firm, which made a counter offer which was not accepted by the Wife either.

6.  The outcome pursuant to my judgment is that the 5 OS Bills (which was either unpaid or only partially paid) remain to be taxed as applied for by the Firm, and that Bills 5 to 10 of the Paid Bills are referred to the taxing master for taxation. 

7.  As can be calculated from the figures in the Appendix to my judgment, the amounts unpaid and outstanding on the 5 OS Bills come to a total of $1,681,037.90.  The remaining amount found due after taxation would be payable by the Wife to the Firm.

8.  On the other hand, any amount taxed off Bills 5 to 10 of the Paid Bills would have to be refunded by the Firm to the Wife.  The Wife also has an entitlement to the costs of the appeal (which have been stated to be in the sum of $186,600).  (The Master had made no order as to costs.)

9.  There is also the question of the costs of the taxation exercise, which is governed by s 67(5) of the Legal Practitioners Ordinance (Cap 159).

10.  One simply cannot say now, based on the outcome of my decision of February this year, that the Firm would be financially better off had it accepted the Wife’s offer, by giving up its entitlement to the sum after taxation of its claimed costs of $1,681,037.90, in return for the Wife giving up her chance to recover any amount taxed off Bills 5 to 10 and her costs of the appeal.

11.  There is also some force in the Firm’s contention that the Wife’s offer was not a sanctioned offer within the meaning of Order 22 because, if accepted, it would preclude the specified costs consequences in Order 22 rule 20 from coming into operation: see Wong Yim Man Anthea v Wong Ho Ming Felix [2016] 3 HKLRD 249.  It is, however, unnecessary to rest my decision on this ground.

12.  Accordingly, without deciding whether the Wife’s offer was a valid sanctioned offer within the meaning of Order 22 rules 4 and 5, in my judgment the Wife has failed to establish any basis for indemnity costs against the Firm pursuant to Order 22.  The Wife’s application to vary the costs order nisi must therefore be dismissed with costs.