ORIENTAL PRESS GROUP LTD AND ANOTHER v. FEVAWORKS SOLUTIONS LTD

HCA 2140/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

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DECISION ON COSTS

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1.  This decision on costs concerns the parties’ earlier disagreement over whether these two actions, now to be tried together, should be tried by a judge with a jury, or by a judge alone.

2.  The plaintiffs in both actions (parties which in essence are associated) sue the defendants for libel.  Upon the defendants’ application, it was ordered in November 2009 that the actions be tried by a judge with a jury (“jury trial”).

3.  S. 15(1) and (2), Jury Ordinance (Cap. 3) stipulates in effect that the party applying for a cause to be heard before a jury shall pay what is sometimes called “jury deposit” within 7 days after the cause is set down for trial; failure to do so will result in the cause being heard without a jury.

4.  The actions were set down for trial in January 2010.  But the defendants did not comply with s. 15(1), Cap. 3.

5.  In a letter dated 29 October 2010, the plaintiffs indicated they consider the actions to be unsuitable for jury trial.

6.  The main reason put forth was that the dispute involves complex issues of law (some of which may be unsettled), such as whether the manager/operator of a discussion forum website can be regarded as the publisher of the libel, whether the liability of such individuals is “strict” in that knowledge of the libel is not required, and whether they can rely on the defence of innocent dissemination.

7.  The defendants do not dispute the complexity of the issues.  But in a letter dated 12 November 2010, they maintained the actions are suitable for jury trial.  That stance was however abandoned in their letter dated 8 December 2010, where they indicated no objection to the actions being tried by a judge alone.

8.  I readily accept defence counsel’s intimation that the defendants had not delayed in informing all concerned the matter was no longer contested.  However, the fact remains costs have been incurred by the plaintiffs by 8 December 2010 (including costs for instructing counsel).  Further, by that date, plaintiffs’ counsel has already lodged with court the skeleton submissions.

9.  By reason of the matters set out in para. 4 and 6 to 7 above, had the matter been contested, it is by no means clear if the defendants would have succeeded in seeking a jury trial despite their non-compliance with s. 15(1), Cap. 3.

10.  For that reason, there is insufficient reason to depart from the usual rule that costs should follow the event (see comments to the similar effect in relation to costs upon the withdrawal or discontinuance of an action: Hong Kong Civil Procedure 2011, Vol. 1, para. 21/5/11).

11.  Accordingly, there will be an order that the defendants are to pay the plaintiffs’ costs from 29 October 2010 to 10 December 2010 in relation to the disagreement regarding jury trial.

12.  Such costs appear to be suitable for summary assessment.  For that purpose:-

(a) the plaintiffs be at liberty to lodge with court and serve a statement of costs within 3 days;

(b) the defendants be at liberty to lodge with court and serve a statement of objections within 3 days thereafter.