DESIGNING HONG KONG LTD v. THE TOWN PLANNING BOARD, SECRETARY FOR JUSTICE

FAMV No. 30 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2017 (CIVIL)

(On APPLICATION FOR LEAVE TO appeal from

CACV No. 184 of 2015)

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DETERMINATION

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The Appeal Committee:

1.  Leave is granted on the following questions as set out in paragraphs 1(2) and 1(3) of the Amended Application for Leave to Appeal dated 31 August 2017, namely:

(1) When considering whether to grant a Protective Costs Order (“PCO”) in a case which raises an issue of general public importance, the resolution of which by the Court is in the public interest, to an applicant that has no special personal or pecuniary interest in the outcome of the proceedings (and, in the case of a corporate applicant, the directors or members of which have no such interest):

(a) Should the Court consider, as relevant factors in the exercise of its discretion, whether:

i. having regard to the financial resources available to the applicant and the respondent and the amount of costs likely to be involved, it is fair and just to make the order, and

ii. that the applicant will probably discontinue the proceedings and that it would be acting reasonably in doing so?

(cf. Corner House Research at para. 74(iv) and (v))

Or is the applicant required to prove that it is “genuinely not in a position to fund the litigation or to bear the respondent’s costs in the proceedings” per Sections D5, F and para.81(c) of the CA Judgment. 

If neither, what is the correct approach or principle to be applied to the financial resources available to the applicant?

(b) Where the applicant is a body corporate:

i.  Are the private financial resources of the directors and/or members of the applicant to be treated as relevant and, if so, should they be treated as available to the applicant or as if they are the financial resources of the applicant?

ii. If the private financial resources of the directors and/or members are relevant, is an applicant for a PCO required to obtain and disclose the financial resources of its directors and/or members? If so, how is such evidence (or its absence) to be taken into account in deciding upon a PCO?

(c)  Further, what is the relevance of the availability of legal aid to persons who are not applicants to the principles upon which the jurisdiction should be exercised, both generally and in particular to applicants who are themselves ineligible    for legal aid?

(d) Further, what is the relevance of the financial resources of      the respondent and how should that be considered and taken into account when deciding on an application for a PCO?

(2) Is an application for a PCO to be considered at the leave stage on the principles set out in Corner House Research at paragraphs 78 to 81 inclusive, suitably adapted for the procedure under Order 53 of the Hong Kong Rules of the High Court, and applying the principles set out in Corner House Research as to the incidence of costs on such applications, or are such applications to be heard inter partes in some longer procedure as envisaged by the Court of Appeal at paragraphs 71 to 81 of its judgment and if so, on what basis as to costs?

2.  The appeal will be heard on 19 April 2018.