“DR. X” v. THE EDUCATION AND ACCREDITATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 106/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 106 OF 2010

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BETWEEN

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JUDGMENT ON COSTS

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1.  On 7 September 2011, the Court handed down its judgment (“the Judgment”) on Drs X, Y and Z’s respective applications for judicial review in seeking to quash the relevant EAC’s and Council’s decisions. The Court partially allowed the applications of Dr X and Dr Y and quashed only the Council’s decisions on the ground of apparent bias. Dr Z did not pursue his application at the hearing as he was successful in his appeal in the Court of Appeal to set aside the relevant EAC decision (see para 7 of the Judgment).

2.  As to costs, the Court made an Order nisi that the EAC (the 1^st Respondent) and the Council (the 2^nd Respondent) to pay half of the costs of Drs X, Y and Z.   The court explained the reasons at paras 144 and 145 as follows:

“144. Dr X and Dr Y are partially successful in these applications, I therefore make a costs order nisi that the Respondents are to pay half of the costs of the Applicants, to be taxed if not agreed, with certificate for two counsel.

145. As the grounds and reliefs sought by Dr Z are effectively the same as those of Dr X and Dr Y.  Thus, for the same reason, I would also make an order nisi that half of the costs of Dr Z are to be paid by the Respondents to be taxed if not agreed, with certificate for two counsel.”

3.  The EAC by its application dated 21 September 2011 now seeks to vary the order nisi to that the applicants pay the EAC’s costs or alternatively that the EAC ought not be ordered to pay the applicants’ costs. 

4.  The Council also applied on the same day to vary the order nisi to the extent that it ought not be ordered to pay Dr Z’s costs.  In its written submissions, it sought to instead ask to have the costs of Dr Z’s judicial review application or alternatively not to be ordered to pay his costs[1]. It has made it clear that it does not seek to vary the costs order nisi in relation to Drs X and Y’s applications.

5.  I would deal with the Council’s and EAC’s present applications respectively as follows.  For convenience, I would adopt the abbreviations used in the Judgment herein.

The Council’s application

6.  The Council says it should have the costs of Dr Z’s application or alternatively should not be ordered to pay his costs.  This is so because Dr Z’s judicial review application against the Council was premature and misconceived since there was never any relevant decision that had been made by the Council that could be subject to challenge. 

7.  In support, Mr Bleach SC (leading Ms Roxanne Ismail) for the Council  mounts the following submissions:

(1)  The only possible decisions of the Council in respect of an EAC recommendation to remove a doctor from the SR are:

(a)  a s 20O decision of the Council on appeal from the EAC recommendation to remove a person from the SR;

(b)  a s 19B(2) decision of the Council as to whether to accept an EAC recommendation to remove a person from the SR.

(2)  But in Dr Z’s case, neither decision had occurred: there had simply been an adjournment of the s 20O appeal pending the judicial review application (which included challenging the relevant EAC decisions).

(3)  Had Dr Z only applied for judicial review in respect of the relevant EAC’s decisions, then the Council would (on its s 20 decision) have to have taken into account of the outcome of Dr Z’s judicial review challenge to the EAC’s decisions.  If Dr Z had successfully challenged the EAC’s decision to recommend removal from the SR, there would have been no recommendation for the Council to act on.

(4)  If the EAC recommendation had remained on foot, and Dr Z had proceeded with his s 20O appeal but was unsuccessful, and the Council had proceeded to accept the EAC recommendation under s 19B(2), Dr Z would have had a right of appeal under s 26(1) of the MRO.

(5)  Thus, Dr Z’s application for judicial review against the Council’s so-called “threatened decision”[2]under s 20O was clearly premature, misconceived and inappropriate. 

8.  I think Mr Bleach is right and I accept his above submissions.

9.  Mr Dykes SC for Dr Z in reply submits that the applicant was required to exhaust all remedies (including a s 20O appeal) before he could apply for judicial review against the EAC’s decision.  Thus, if he did not challenge the Council in the judicial review proceedings, his judicial review against the EAC decision should fail on that ground.

10.  Mr Dykes also submits that the matter had already been set down for s 20O appeal, scheduled originally for 9 November 2010.  This was only subsequently adjourned by agreement pending the outcome of the judicial review.  Also, the Council had already decided on its composition for hearing the s 20O appeal and 2 of these members had heard the matter as members of the PIC. So, argues Mr Dykes, the apparent bias point would have arisen also in this case.

11.  With respect, Mr Dykes’ above submissions do not and could not answer the Council’s above contention that there was simply no relevant decision made by the Council that was subject to Dr Z’s judicial review.  If there was no extant relevant decision that could be subject to judicial review, the challenge purportedly made was clearly premature and misconceived. 

12.  It must also be noted that Mr Dykes’ above first ground is in my view misplaced.  The reason why the relevant s 20O appeal was adjourned was precisely because Dr Z had made a judicial review against the EAC decisions in the first place without waiting for any hearing of that appeal.   That itself cannot be taken as a ground to justify lodging a judicial review against a decision (under the s 20O appeal) which was yet to be made[3].

13.  The second ground is purely speculative at the time of the application of judicial review and cannot amount to any justification for bringing the judicial review against the Council when there was not relevant decision made by it.

14.  I would therefore agree with the Council and vary the costs order nisi to the extent that, insofar as the costs of Dr Z’s judicial review is concerned, he should pay the costs of the Council.

EAC’s application

15.  The basis of EAC’s application is a simple and straightforward one:  the applicants’ judicial reviews insofar as they relate to the EAC’s decisions have all failed[4]. As such, the EAC is the successful party and it should thus be entitled to its costs.

16.  In opposition, Mr Dykes for the applicants raises mainly the following grounds:

(1)  The general rule is that costs should follow the event.  The applicants succeeded in the judicial review.

(2)  Further, in judicial review, the general rule is that where there are two respondents, the unsuccessful applicant will not be required to pay more than one set of costs, absent some justification for separate representation.  Generally, the court should consider the following questions in deciding the issue[5]:

(a)  Whether the separately represented respondent/interested party has any relevant or significant interest or reason to justify his participation in the proceedings;

(b)  Whether that party raises (successfully) any separate or distinct material issue for adjudication in the same proceedings; and

(c)  Whether that party can be represented by the same team of lawyers of his co-respondent for the proper protection of their interests or ventilation of the particular issue in question.

(3)  In the present case, the interests of the Council and the EAC must be taken to be the same as the latter is a subcommittee of the former, there is thus no justification (and the burden is on them to so justify) separate representation.   All the points raised by the EAC could and could have been raised and argued by the Council’s legal representative.  As such, the applicants should not be required to pay EAC’s costs.

(4)  Further, requiring the applicants to pay EAC’s full costs and only being entitled to recover half of their costs from the Council would result in the “absurd” position that the applicants, being the successful party, would end up in reality paying costs out of pocket.

17.  EAC however contends that it was justified to have a separate representation because:

(1)  Under the MRO, the Council and the EAC are separate and independent entities in respect of removal of names from the SR.  Under s 20O of the MRO, a doctor can appeal against the EAC’s decision to the Council.  At the hearing of a s 20O appeal, the EAC may be represented as a respondent[6].

(2)  Further, as long as there is a possibility of the s 20O appeals of Drs X and Y being remitted back to the Council for re-hearing (which turned out to be the result), it was necessary for the EAC and Council to maintain their independence from each other by separate representation at the judicial review.

(3)  As to Dr Z, it was necessary for the EAC and Council to maintain their independence in the judicial review by separate representation as his s 20O appeal had not yet been heard by the Council.

18.  In support of the above submissions, and Mr Cooney SC further emphasizes that in the present case:

(1)  The EAC is a separate entity from the Council. It is a sub-committee established by the MRO with its own powers and function.  A right of appeal lies from the EAC to the Council against any EAC recommendation for removal of a name from the SR and the Council sits it judgment upon a decision of the EAC.

(2)  The applicants joined the EAC as a separate respondent (unlike the above authorities cited by the applicants where the parties denied of costs entered those proceedings as an “interested party”).

(3)  The applicants challenged the EAC’s decision as separate decisions from those of the Council. For example, the challenge to the EAC’s jurisdiction as to whether it is confined to matters of compliance only.  This is an issue which engaged a consideration of the extent of the EAC’s own, separate powers.  This was thus an important issue for the EAC and separate representation was appropriate and necessary.

19.  I agree with Mr Cooney’s submissions.  In particular, in light of the fact that there could well be situations that the outcome of these judicial review are to remit the relevant EAC’s decisions back to the Council for reconsideration, and that the illegality challenges made to the EAC’s decisions largely concern with the extent and scope of its powers and jurisdiction, I am satisfied that the EAC is entitled to have separate representation from the Council.  

20.  I am also not persuaded by Mr Dykes’ further submission that, if the applicants are required to pay the costs of the EAC, it would result in an “absurd” scenario that they (being the successful party) may end up paying more costs than they would recover from the Council.  The proper way to look at it is that the applicants are unsuccessful against the EAC, being one of the respondents.  In my view, there is nothing so unusual for a party having won against one opponent but not the other ends up losing out on costs in the overall.  

21.  For the above reasons, I would also vary the costs order nisi to the extent that the applicants (i.e. Drs X, Y and Z) have to pay the costs of the EAC, to be taxed if not agreed.  

Conclusion

22.  I will vary the costs order nisi to the following:

(1)  The Council shall pay half of the costs of Dr X and Dr Y[7], to be taxed if not agreed, with certificate for two counsel.

(2)  Dr Z should pay the costs of the Council, to be taxed if not agreed, with certificate for two counsel.

(3)  Dr X, Dr Y and Dr Z should pay the costs of the EAC, to be taxed if not agreed.

23.  As the Council and EAC are successful in these applications under their respective Summonses, they should also be entitled to their costs, to be taxed if not agreed.  There would also be certificate for two counsel for the Council’s costs.

Mr John HN BLEACH SC, leading Ms Roxanne ISMAIL, instructed by Department of Justice, for the 2^nd Respondent