NAGRAVISION SA v. ZHUHAI GOTECH INTELLIGENT TECHNOLOGY CO LTD AND OTHERS

HCA 2297/2016

[2018] HKCFI 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2297 OF 2016

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D E C I S I O N

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Introduction

1.  In my decision in these proceedings handed down on 14 June 2018, I directed that an appointment be obtained before me in order to consider the terms of the Delivery Up Order (this term and the others I use below being as defined in my previous decision), which I had ordered be continued.  The parties appeared before me for this purpose on 16 July 2018.

2.  In my earlier decision I also made several orders in respect of costs; the relevant substantive orders for present purposes are contained in paragraphs 176, 178 and 179 of my decision and I will not repeat them here.  In particular, I made a costs order nisi in relation to the costs of the plaintiff’s applications for continuation of the Delivery Up Order and Mareva Injunction, with the direction that if any party sought a different costs order they do file and serve written submissions setting out the basis and the order they seek no less than 7 days prior to the inter partes appointment I had directed be fixed as referred to above.

3.  The parties have not sought to vary the aforesaid costs order nisi.  However, by the plaintiff’s summons dated 28 June 2018, also made returnablebefore me on 16 July 2018, the plaintiff sought a number of consequential orders in relation to costs matters.  In particular, the plaintiff sought the ‘collective’ (by which term I mean all of the costs in relation to what were 5 summonses and one related application not made by summons aggregated as a single lump sum, instead of identified individually by summons or application) summary assessment of a number of the costs orders I had made.  The plaintiff further sought the apportionment of the total costs so assessed between the orders where I had provided that costs be to the plaintiff forthwith, to be taxed if not agreed and the orders where I had provided that costs be to the plaintiff in the cause, to be taxed if not agreed.

4.  The objective of the plaintiff’s application was to achieve the early quantification of the costs to be paid to it forthwith or in the event that it succeeds in the cause.  And in respect of those costs that I ordered be paid forthwith, it further sought an order that the amount assessed be immediately paid out of the funds of D2 currently restrained by the Mareva Injunction.  With a finite sum restrained and little realistic prospect of D2 or any other defendant bringing further sums into the jurisdiction voluntarily only to be similarly restrained, understandably the plaintiff is keen to recover as much as possible of any costs awarded in its favour as early as possible.  It also fears that if it delays the amount restrained, from which D2 continues to draw monies to meet expenses and legal costs (as is permitted by the terms of the Mareva Injunction), may be exhausted.

5.  The plaintiff further sought an order that the costs of and occasioned by its summons similarly be summarily assessed, that these also be ordered to be paid to it by D1 and D2 forthwith and payment again be made from the funds of D2 restrained by the Mareva Injunction.

The Delivery Up Order

6.  By the time the matter came on before me, the parties had largely reached agreement as regards the terms of the Delivery Up Order.  Included with the submissions of the plaintiff's counsel was a draft order which had beenrevised (from that sought at the time of my first decision) to reflect the matters subsequently agreed.  In addition, very helpfully, I also had the benefit of a version with coloured track changes showing the amendments made.  In this decision, references to the draft order are to that included with counsel’s submissions.

The terms of the Delivery Up Order and Mareva Injunction

7.  I consider that the draft order should refer to being made upon boththe plaintiff’s applications for the Delivery Up Order and the Mareva Injunction, which were made by separate summonses both dated 5 September 2016 and filed on 6 September 2016.  Both are the subject of the same costs order namely plaintiff’s costs in the cause. I do not consider that the draft should refer to the Discharge Application (made by D1 and D2 by summons dated and filed on 23 September 2016), not least because this was the subject of a different costs order.  The Discharge Application should be the subject of a separate order, which could be combined with the order I made as regards the Jurisdiction Summons, both applications having been dismissed with costs payable to the plaintiff forthwith.

Written submissions

8.  Having reflected following the hearing, I agree with the parties that it is appropriate to include reference to the written submissions submitted after the hearing before me in January as they dealt with matters not addressed during the hearing itself.  Therefore, I order that the words that appear in the draft as submitted should remain.

The ‘proviso’ to paragraph 1

9.  The first substantive issue between the parties concerns whether the proviso that appears after the terms of the various restraints set out in paragraph 1 and which seeks to identify that which D1 and D2 may nevertheless still do ie which would not be caught by the terms of the restraints, requires further amendment.  I understand that the proviso was added by the plaintiff to the draft order following a suggestion made by D1 and D2 who were concerned to ensure that it was clear that they could still conduct business in a way that is not the subject of the plaintiff’s claims in the proceedings.

10.  However, the draft order submitted by counsel for the plaintiff has added what is in effect a further limiting provision, starting with the words “… so long as the 1^st and 2^nd defendants do not …” [underlining added], which again seeks to qualify or limit the permissive wording which appears immediately prior.

11.  And in turn, this has led to counsel for D1 and D2 seeking to add yet further words to make it clear beyond any doubt that even if amended as proposed by the plaintiff the restraints do not prevent D1 and D2 conducting business in a way that is not the subject of the plaintiff’s claims in the proceedings.  Not surprisingly, counsel for D1 and D2 has sought to achieve this largely by re-using the very same terminology that appears in the restraints themselves; phrases like “primarily designed” or “limited commercially significant purpose”.

12.  The concern I have with the entire proviso section is that while it may be relatively easy to clearly prescribe that which a party is restrained from doing (which must be founded on the claims of the plaintiff in its pleading), it is much harder to easily prescribe that which it may still do and not fear being in contempt.  Unless what appears is wording which is little more than the ‘flip side’ of the restraints (where the further wording proposed by counsel for D1 and D2 appears to be heading), to attempt to set out that which a party is unarguably still permitted to do could both be difficult and/or result in a very long list.

13.  Counsel for the plaintiff fairly acknowledged that it had accepted the original wording of the proviso as proposed by D1 and D2.  This reads as follows:

“ PROVIDED THAT the 1^st and 2^nd defendants are permitted to manufacture, sell or deal in Free to Air receivers which, at the point of both manufacture and shipping, are not capable of accessing broadcast content protected by the plaintiff’s conditional access or other protective systems …”

14.  I consider that there is no need for any further wording beyond this. What appears above is clear and unambiguous and I believe should be readily capable of interpretation and understanding by the parties, most importantly, by D1 and D2.  In my view, the additional wording which the plaintiff seeks to add is already addressed by the terms of the restraints themselves as also is the further wording proposed by D1 and D2.

15.  The efforts of the parties are well intentioned, but by further limiting or qualifying or clarifying they run the risk of largely repeating what is already set out in the restraints themselves, something that in my view would not only serve no purpose but quite possibly might have the opposite effect to that intended.

16.  I therefore order that the proviso end with the words “… other protective systems.”

Geographic limit of restraints

17.  The second substantive issue dealt with before me concerns the need for any further clarification of the geographic scope of the delivery up and the verification which is provided for in paragraphs 5 and 6 of the draft order.

18.  There is no dispute that the injunction contained in paragraph 1 of the draft order only relates to the doing of acts in the United States of Americaand the injunctions contained in paragraphs 2 and 3 only relate to the doing ofacts in Hong Kong.  However, counsel for D1 and D2, noting that the terms of the delivery up and verification orders refer back to the respective injunctions through the words “… would offend against any of the aforesaid injunctions.”, submitted that they should also be equally geographically limited.  By way of example, he said that otherwise D1 and D2 could be required to deliver up items even if they are located outside of the United States as they would still be items any dealing with which within the United States would be a breach of the injunction in paragraph 1.  In simple terms, items do not need to be within the United States to be caught by the proposed order.

19.  Counsel for the plaintiff clarified that the intention was as submitted by counsel for D1 and D2 namely that products outside of the United States and Hong Kong respectively, where any dealings with them would not be caught by the relevant injunction, were not required to be delivered up.  He submitted that the existing wording of the draft order is adequate and does not require amendment.

20.  I agree with counsel for D1 and D2 that the existing wording is not clear and therefore I order that there be added in paragraph 4 of the draft order the further words proposed by D1 and D2 namely:

“ … For the avoidance of doubt, the injunction in paragraph 5 below only requires the 1^st and 2^nd defendants to deliver up products, apparatus, devices, components or parts thereof in the possession, custody or control of the 1^st and 2^nd defendants or either of them which are:

(a) situate in the United States of America (in so far as the use of orother dealings in or with which by the 1^st and/or 2^nddefendants or either of them would offend against paragraph 1 above); or

(b) situate in Hong Kong (insofar as the use of or other dealings inor with which by the 1^st and/or 2^nd defendants or either of them would offend against paragraphs 2 and 3 above).”

Costs issues

21.  By the plaintiff’s summons dated 28 June 2018 it sought orders as follows:

(a)   Summary assessment of its costs in relation to the several cost orders I made its favour (whether payable forthwith or plaintiff’s costs in the course) in the sum of HK$7,168,350.00;

(b)   Apportionment of the costs as assessed above in the proportions 70/30 between those applications in respect of which the order was that costs be paid forthwith and those in respect of which the order was that costs be the plaintiff’s costs in the cause; and

(c)   The 70% of the sum assessed as aforesaid be immediately paid from the funds of D2 currently restrained by the Mareva Injunction. 

22.  The summons (in paragraph 3) also sought an order in relation to costs previously reserved on an application by D1 and D2 to extend time for filing and service of a defence.  This was agreed between the parties and accordingly I make an order in the terms of the paragraph.

23.  The plaintiff's summons was accompanied by a statement of costs for summary assessment under Order 62, rule 9, RHC, the statement on the face being in the form required by Practice Direction 14.3, Appendix A.  However, as I have referred to above, the statement aggregated all of the costsincurred in relation to each of the several summonses and applications and didnot attempt to identify the specific costs related to each individual summons or application.  This in part explains the very large sum sought to be summarily assessed, in relation to what after all were interlocutory matters.   

24.  The plaintiff's counsel included with his written submissions what was described as an analysis of the arguments made and evidence relied upon apportioned between a number of different issues.  However, I would note that this was in relatively short form (not quite two pages) and also that it appears only to deal with some part of the documentation, evidence or submissions, filed and served during the proceedings.

25.  Counsel for the plaintiff submitted that all of the several separate summonses and applications (save for the adjournment application which was made at the outset of the hearing before me in January 2018) had proceeded together in tandem from an early date.  As I noted in my earlier decision, the summonses were effectively ‘consolidated’ to be heard together from no later than the orders made by the Honourable Deputy High Court Judge Keith dated 20 January 2017.

26.  Counsel submitted that it would be difficult and time consuming fora taxing master to have to attempt to apportion the costs coming to the mattersas he would ‘cold’.  He submitted that to do so would require spending a largeamount of time reading into and understanding the issues, legal and factual, andhow they were presented both in writing, through the evidence and submissions, and at the various hearings.  Instead, he submitted that I was best placed to do the assessment and apportionment, as out of all the judicial officers who had previously been involved with the same matters I have had by far the greatest degree of involvement so far and the matters are fresh in mind.

27.  Counsel also referred to the fact that any taxation would likely take a substantial amount of time during the course of which the funds frozen by the Mareva Injunction would continue to be depleted and, as I have referred to, might even be exhausted.  He submitted that this was further justification for the plaintiff seeking an early summary assessment and, in respect of at least the forthwith orders, immediate payment.

The position of D1 and D2

28.  Counsel for D1 and D2 objected to the plaintiff’s application for summary assessment.  He submitted that where costs are substantial and complex summary assessment is not appropriate and referred to the provisions of Order 62, rule 9A RHC and the commentary in the notes at 62/9A/1.

Substantial grounds

29.  Order 62, rule 9C(1)(a) RHC provides that no direction or order for summary assessment in lieu of taxed costs may be made if:

“ the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.”
[emphasis added]

30.  What might constitute substantial grounds?  As I have noted, counsel for D1 and D2 submits that the assessment of costs is likely to be very complex, making the point in his submissions that there are several interlocutory matters involved, that even the ‘consolidated’ statement of costs produced on behalf of the plaintiff already includes more than 100 items and the large amount claimed, which clearly is very substantial.

31.  Counsel further noted that because of the way that the plaintiff’s statement of costs has been prepared there was likely to be substantial argument as regards the assessment of each individual item and also the potential duplication of work across several applications as well as over the course of time.  By way of an example, he referred to the potential for argument as to the volume of work handled by a partner as opposed to being delegated to someone more junior (and less costly).

32.  In my view, arguments as to quantum alone not connected with a point of principle, will rarely, if ever, amount to substantial grounds.  In short, whether a particular task should have required 200 or 100 hours taken alone is not a basis on which summary assessment can be opposed.  In this respect, I agree with the view expressed by the Honourable Madam Justice Au-Yeung in her decision in K&L Gates (a firm) v Ding Yu and Another HCMP 1569 of 2015dated 27 June 2016, where Her Ladyship, after noting that matters of principle had been dealt with, observed (at paragraph 34 of the decision) that “… I see no justification for taxation just on questions of quantum.”

33.  For a paying party to successfully oppose an application for summary assessment I consider that they need to show not that there is a substantial sum involved but that there are substantial grounds of dispute as regards points of principle that underlie the amounts claimed.  Even in respect of a relatively small sum there is no reason why there could not be a substantial dispute regarding a matter of principle.

Summary assessment of interlocutory applications

34.  As I have noted above, amongst the grounds relied upon on behalfof D1 and D2 for opposing summary assessment is the difficulty of separating out the costs of even the substantive applications, let alone individual items, because of the ‘collective’ way the plaintiff’s statement of costs is prepared.

35.  Order 62, rule 9A(1) RHC provides that the Court, if it considers it appropriate to do so (but subject to rule 9C, which I have already referred to above), after having determined “… an interlocutory application …” and ordered a party to pay costs, may make a summary assessment of those costs in lieu of taxation (or make a summary assessment which was still subject to a right to tax or order taxation).  However, neither the rule itself nor Practice Direction 14.3, which deals with costs and, in particular, sets out the summaryassessment of costs procedure, appears to anticipate the approach taken by theplaintiff in the present matter where the costs of several different interlocutory applications are all rolled up together.

36.  While I do not make any finding, it is certainly arguable that the rule and procedures require that a separate summary assessment process be conducted in respect of each interlocutory application (or issue) that is the subject of a costs order.  Or even if this is not a requirement of the rule, it could be strongly argued that in the vast majority of cases it is the preferred approach.  I will come back to this issue later in this decision.

Apportionment of costs

37.  Where two or more applications or issues are dealt with together, either in the body of a single affirmation or at a single hearing, and the matter proceeds to taxation an apportionment may be required, certainly if a different costs order is made in respect of the applications or issues.  However, in the present matter the plaintiff has not attempted such an apportionment in its statement of costs but instead has aggregated all of the costs relating to several different applications or issues and asked first that they be summary assessed and only then that they be apportioned.

38.  As I indicated to both counsel during the course of the hearing, while I am in a position to apportion costs as regards the matters argued before me (I include the written submissions submitted prior to, during and after the hearing), currently I have no basis on which to make such an apportionment in relation to the applications and issues viewed overall.  I note that all of the matters in question had been pending and dealt with through several hearings and rounds of evidence over the course of 18 months before they came on in front of me.

39.  Once the court has determined to proceed with a summary assessment it will be concerned not to conduct a mini taxation and can take a ‘broad brush’ approach but I do not consider that this extends to my simply assuming that an apportionment of time based on how matters were dealt with at the hearing before me should be applied equally throughout the life of the applications.  As I observed to counsel for the plaintiff, were I to decide the matter having regard solely to the hearing before me, I might well apportion costs 70% as regards the matters in respect of which I ordered that costs be the plaintiff’s costs in the cause and only 30% as regards the matters in respect of which I ordered that costs be to the plaintiff payable forthwith (which is the reverse of the apportionment actually sought by the plaintiff by the present application).

40.  It hardly needs to be said that the time devoted to arguing a particular point during a hearing may be considerably shorter than the time spent preparing the evidence related to it or addressing it in written submissions.  Good points that are well made have a tendency to require less in the way of oral argument.  Or there may well have been a change of strategy and tactics such that a particular point dealt with in writing is not pursued either at all or to the same extent at a later hearing.  In any event, I do not consider that my assessment of how matters unfolded at the hearing before me is likely to be a reliable indicator of the right apportionment over the course of the entire application.  In my view, a more forensic analysis over the life of the matter is required.

41.  Counsel for the plaintiff also referred to the difficulty of separating out the costs of the evidence between the different applications and issues as the affirmations filed by both parties tended to be of an ‘omnibus’ nature.  However, in my view, the fact that the evidence on its face relates to several different applications or issues does not preclude an apportionment.  While I have no doubt that the majority of the affirmations filed and served contain opening words that suggest that they relate to all of the pending applications or issues, based on my own limited review of the evidence, even where such opening words appear, when one looks to the substantive text the separate applications and issues are individually addressed.  Therefore, and though it may well be time consuming, an apportionment should be possible.

The principles of summary assessment

42.  The principles as regards the approach to summary assessment and how such assessment if undertaken is to be conducted are well established. 

43.  In Midland Business Management Ltd and Another v. Lo Man Kui [2011] 2 HKLRD 667 the Honourable Mr Justice Lam observed as follows:

“ 9. Under the Civil Justice Reform, the court is encouraged to order immediate payment of costs of interlocutory proceedings and if possible by way of summary assessment of costs. The objective is to discourage unnecessary and disproportionate interlocutory applications. It is recognized that the lack of immediacy of orders topays costs ‘in the cause’ or ‘in any event’ weakens costs as a sanction against unwarranted applications or resistance, see paras.529 to 536 of the Final Report of the Chief Justice’s Working Party on Civil Justice Reform.

10. By reason of Order 62 Rule 5(1)(aa), the court should take into account of the underlying objectives in Order 1A rule 1 in the exercise of its discretion. The objectives in rule 1(a), (c) and (d) areparticularly relevant in the present context. In my view, the approachrecommended by the Working Party should be adopted in furtherance of these objectives. Unwarranted interlocutory applications should normally be sanctioned by an immediate costs order.

11. In so saying, I must not be taken as saying that an immediate costs order should be made against every unsuccessful party in interlocutory application. I can readily see that there are cases where such party may have a proper justification for making an interlocutory application even though he fails at the end of the day. There could also be cases where the court considers that it would be more appropriate to make an order ‘in any event’ or ‘in the cause’ or to reserve costs.

12. However, what I do say is that after the Civil Justice Reform the court is more astute to the impact of costs on legal proceedings and order for immediate payment of costs will be made more readily as a discipline against unmeritorious interlocutory applications."

44.  I agree with and respectfully adopt His Lordship’s words.  It follows that where an order is made for costs payable forthwith the court should strive to deal with the assessment of those costs as early as possible.

45.  In Poon Shu Fan v. Wong Tin Yan and Another [2012] 5 HKLRD 512, the Chief Judge cited (in paragraph 15) with approval the words of Lord Woolf CJ in the English decision Lownds v. Home Office [2002] 1 WLR 2450 as regards the two-stage approach required:

“ In other words what is required is a two‑stage approach. There has to be a global approach and an item by item approach. The global approach will indicate whether the total sum claimed is or appears to be disproportionate having particular regard to the considerations which CPR r 44.5(3) states are relevant. If the costs as a whole are not disproportionate according to that test then all that is normally required is that each item should have been reasonably incurred and the cost for that item should be reasonable. If on the other hand the costs as a whole appear disproportionate then the court will want to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item is reasonable. If, because of lack of planning or due to other causes, the global costs are disproportionately high, then the requirement that the costs should beproportionate means that no more should be payable than would have been payable if the litigation had been conducted in a proportionate manner. This [in] turn means that reasonable costs will only be recovered for the items which were necessary if the litigation had been conducted in a proportionate manner.”

46.  The Chief Judge referred to the above words as “valuable guidance”, while at the same time emphasising that they are not rigid rules and reiterating the fundamental principle that ultimately costs are in the discretion of the court, a discretion which though wide must still be exercised in a judicial manner.

47.  As a first step in the summary assessment process, the court is required to consider whether the total figure claimed is not disproportionate and/or unreasonable having regard to the nature and circumstances of the application or matter and the underlying objectives. However, in my view, and certainly in the circumstances of the present matter as I have set them out above, the court cannot begin this task unless it is provided with a statement of costs that is specific to the application or issue concerned.  Otherwise, the assessment of whether the claimed costs are disproportionate is inextricably intertwined with the costs claimed in relation to other distinct applications or matters.

48.  While the several different applications or issues that were dealt with in the present matter undoubtedly included common elements or overlapping issues, for example, the need for a good arguable case or there to be a serious issue to be tried, equally they also raised separate and unique issues, for example, as regards the principles in relation to material non-disclosure or the basis for jurisdiction under Order 11 RHC.  And as I have previously observed, I do not view it is an answer to say that a ‘broad brush’ approach can be adopted.  In my view, one does not reach this stage until presented with a costs statement that allows for such an assessment.

49.  In my view, the same also applies regardless of which of the second stage tests as referred to by Lord Woolf might be applicable.  The assessment as to whether a particular individual item of work was reasonable or necessary again has to be with regard to the application or issue to which that item related. Therefore, where there is a body of work (or a hearing) which deals with several different applications or issues the total costs involved need to be apportioned and the cost of preparing each item of work specific to each application or issue identified separately before an assessment of whether they were reasonable or necessary can be made.

Application for adjournment

50.  In an effort to assist the parties, I would add that having reviewed the record of the first day of the hearing, in my assessment the application of D1 and D2 for an adjournment took up no more than one hour of oral argument during the opening morning session.

Banker's Record Application

51.  Similarly, while argument in relation to the Banker's Record Application extended over several different sessions during the course of the hearing, in my assessment the total time devoted to it in oral argument was also no more than one hour.

Directions

52.  If the plaintiff wishes to pursue an application for summary assessment I direct that it prepare and submit separate statements of costs in relation to each interlocutory application or issue in respect of which I made a costs order.  As part of that process the solicitors for the plaintiff will need to form their own view as to the appropriate apportionment of the costs incurred between the several applications or issues and assess them accordingly.  I do not propose to further direct how this be done or give specific instruction as to the manner or presentation of the statement.  Practice Direction 14.3 should be followed and the statement, as noted in the practice direction, as far as possible, should be in the format in Appendix A.

53.  As I have previously observed, the procedure on a summary assessment is not intended to be a mini taxation and the temptation to prepare and lodge papers as if it were must be avoided.  Otherwise there is a risk that the court will decline the application on this basis alone or, as the Honourable Mr Justice Lam observed in his decision in Midland Business Management and Another v Lo Man Kui HCA 1599 of 2010 dated 24 May 2011, the parties may see the costs they incurred disallowed.

54.  While it is a matter for the plaintiff, I invite further consideration as to whether it is appropriate to pursue any application(s) in respect of those costs orders which are contingent upon it succeeding in the cause.  Not least, the quantification of those costs which are already ordered to be paid forthwith would likely greatly assist as regards any future taxation in relation to those costs which are ordered to be plaintiff’s costs in the cause.  However, ultimately, it is matter for the plaintiff as to how it wishes to proceed pursuant to the leave I give below.

55.  I direct that the plaintiff have leave to serve and file within 21 days of the date of handing down of this decision separate statements of costs in relation to each of the matters the subject of paragraphs 2(a), (b), (c), (e) and (f) of the plaintiff’s summons dated 28 June 2018.  I consider that the matters which are the subject of paragraphs 2(d) and (g) can properly be dealt with together with one or more of the other items and therefore do not require a separate statement of costs.

56.  In addition, I give leave to the plaintiff to serve and file at the sametime a single set (not one set per statement of costs) of skeleton submissions ofno more than 6 single sided pages setting out the grounds for the application(s) and/or any desired explanation of the approach adopted and the methodology.

57.  I further give leave to D1 and D2 to file and serve within 21 days thereafter a single set of skeleton submissions (as above) in opposition and/or with any desired comments on the approach adopted and the methodology of the plaintiff.

58.  Lastly, I direct that the plaintiff and D1 and D2 do jointly apply through the Court listing office to obtain a one hour appointment before me to address any application(s) made by the plaintiff.  The appointment is to be fixed not in consultation with counsel’s diaries as I consider that matters of this nature can be handled by the instructing solicitors.

Costs of the hearing on 16 July 2018

59.  In all the circumstances, and for the reasons I have set out in this decision, I believe that D1 and D2 are entitled to the costs of the hearing of the plaintiff’s summons dated 28 June 2018 before me on 16 July 2018.  The costs are to be taxed and paid forthwith and I give leave to D1 and D2 to file and serve a statement of costs seeking summary assessment within 21 days.  I further repeat the same directions I have given above for the filing and service of skeleton submissions first by D1 and D2 then by the plaintiff save that if no applications are made by the plaintiff I will first seek to deal with any application made by D1 and D2 on the papers without the need for a hearing.

60.  In the event that the plaintiff pursues an application for summary assessment, I order that the costs of the plaintiff’s summons itself be reserved to be dealt with at the future hearing.  If the plaintiff does not pursue an application for summary assessment, I order that the costs of the summons be to D1 and D2 to be taxed and paid forthwith.