WO CHUN WAH v. CHAU KWEI YIN AND OTHERS

CACV 271/2017

[2019] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 271 OF 2017

(ON APPEAL FROM HCPI NO 903 OF 2014)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the application of the Employees’ Compensation Assistance Board (“the Board”) for leave to appeal to the Court of Final Appeal. We think it appropriate to determine the application on paper without a hearing. We do not propose to set out the three questions in §1 of the notice of motion said to be of great general or public importance.

2.  The application for leave to appeal to the Court of Final Appeal arose in this way.

3.  The appeal before the Court of Appeal was against a costs order made by Deputy High Court Judge To in an action for common law damages brought by the plaintiff employee.  The Board had obtained leave to join in the action as the 3^rd defendant.  The judge made no order as to costs between the plaintiff and the Board.  The plaintiff appealed against this order with leave granted by the Court of Appeal, contending that this should be set aside and substituted with an order that the Board should pay his costs as from the date the Board obtained leave to join in the action. The Board filed a respondent’s notice seeking to affirm the judge’s order on a different ground, namely, that the court has no jurisdiction to order costs against the Board by virtue of the provisions in the Employees Compensation Assistance Ordinance, Cap 365 (“ECAO”).

4.  At the conclusion of the appeal, we dismissed the plaintiff’s appeal and upheld the costs order of the judge.  Having dismissed the appeal, we did not find it necessary to deal with the respondent’s notice, which was the subject of detailed submissions of Ms Eu, SC.  Regarding the costs of the appeal, we decided to exercise our discretion to depart from the principle that costs should follow the event and made an order there be no order as to costs between the plaintiff and the Board, save that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  The reasons for our judgment were handed down on 23 November 2018 (“the Reasons”).

5.  Having succeeded in resisting the plaintiff’s appeal, the order that is the subject of the Board’s intended appeal to the Court of Final Appeal is not our order dismissing the appeal but our costs order, namely, that there be no order as to the costs of the appeal.

6.  It is most unusual for a successful party to seek leave to appeal in respect of a costs order to the Court of Final Appeal.

7.  It is contended by Ms Eu[1] that our costs order “was clearly grounded upon a rejection of the Board’s arguments on the jurisdiction issue”.  She submitted that if the Board is correct on the jurisdiction issue, “then in principle the costs of the appeal should follow the event and [the Court of Appeal] would have had no basis to deprive the Board of its costs of the appeal.”

8.  The premise of this contention is not correct. The reason for our costs order is as stated in the last paragraph of the Reasons:

“56. This is because the Board has put in a respondent’s notice to raise the jurisdiction issue. If this issue had not been raised, it would not have been necessary to engage leading counsel. Further, substantial time and costs had been incurred in respect of this issue, which in the end we did not find necessary to deal with on dismissal of the appeal.”

9.  Question 1 in the notice of motion raises the jurisdiction issue which was the subject of the respondent’s notice.  It is not appropriate to grant leave to appeal on a question which we did not find necessary to deal with in the appeal.

10.  Question 2 is again not a question that arose for determination in the appeal.  It was only mentioned in footnote 24 of the Reasons.  The plaintiff’s counsel had accepted that the plaintiff can only recover the settlement sum of $1,420,000, not the higher amount awarded by the judge.  Whether the Board would have authority to pay a settlement sum in excess of a lower award did not arise for consideration on the facts of this case, nor was this argued before the judge.  It is not right to grant leave to appeal in respect of a question we did not find necessary to deal with.

11.  Question 3 (whether section 29 of the EACO applies to the situation where the Board is sued as an interested party having obtained leave to intervene) is of little importance in the resolution of the appeal.  We decline to exercise our discretion to grant leave for this question.

12.  The Board also invokes the “or otherwise” limb contending that there is need for definitive guidance from the Court of Final Appeal as to the principles governing the exercise of discretion as to costs (if it exists) and that the proper construction of the ECAO as a whole is of considerable importance.  We have explained in §34 of the Reasons why we do not think it necessary to give specific guidance how the discretion as to costs should be exercised.  We do not think the need for guidance or the construction of the ECAO as a whole or the fact that the leave application is brought by the Board would amount to exceptional circumstances for leave to be granted under the “or otherwise” limb.  In any event, in accordance with usual practice, it is best left to the Appeal Committee if it wishes to exercise its discretion under this limb to entertain the intended appeal.

13.  For the above reasons, we dismiss the notice of motion for leave to appeal.  There is no reason to depart from the general rule that costs should follow the event.  We order the Board to pay the plaintiff’s costs of this application and assess the plaintiff’s costs summarily at $76,194.