GUIDO FERRANDO v. HUA DAO SHIPPING (FAR EAST) LTD

HCLA77/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.77 OF 2005

(ON APPEAL FROM LBTC 1690 OF 2005)

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REASONS FOR DECISION ON COSTS

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Introduction

1. In the Judgment handed down on 7 July 2006, I allowed the claimant’s appeal, remitted the claim to the Labour Tribunal for retrial and made an order nisi that the claimant shall have the costs of the appeal, to be taxed if not agreed.  The defendant subsequently applied to vary the costs order nisi.  On 5 September 2006, after hearing counsel, I dismissed the defendant’s application and made the costs order nisi absolute.

2. These are my reasons.

Discussion

3. The general rule is that costs should follow the event.  In principle, in a successful tribunal appeal where the court orders a retrial, this general rule applies : see, for example, Wong Ng Kai Fung Patsy v. Yau Lau Chu (t/a New-Date Pet Trimming Salon) [2005] 4 HKC 42, Chung Man Chiu & Azri Wong Wing Kee v. Ad-Link Communications Ltd, HCLA58/2002, unreported, 5 December 2002, Deputy Judge Lam (as he then was).  As explained in George Trollope & Sons v. Caplan [1936] 2 All ER 842 by Greer LJ at p.849, the rationale is thus :

“As the appellant has had to come to this court to get the relief to which he thinks he is entitled by an order for a new trial, he ought to have the costs of the appeal.”

This general rule may, however, be departed when there exist special circumstances : see for example Ali Shoukat v. Hang Seng Bank Limited, HCLA112/2004, unreported, 20 June 2005, Deputy Judge To.

4. Here, I am unable to discern any special circumstances that may justify a departure of the general rule.  The defendant resisted this appeal and had failed.  There is no reason why it should not bear the claimant’s cost in pursuing this appeal.  Mr Vaughan, for the defendant, placed particular emphasis on the fact that the court, in allowing the appeal, had relied on a point which was not raised by the claimant, namely, the presiding officer had failed to investigate on the defendant’s lack of response to the claimant’s email dated 5 September 2002.  While it is true that Mr Wong, SC, for the claimant, did not raise this point in his submissions, I did accept most if not all his contentions.  Mr Vaughan’s argument must be rejected.

Conclusion

5. For the above reasons, I dismissed the defendant’s application and made absolute the order nisi with costs against the defendant, to be taxed if not agreed.