LACHY v. YC

FCJA 2057/2016

[2018] HKFC 215

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2057 OF 2016

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R U L I N G
(Leave to appeal and leave to appeal out of time)

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Introduction

1.  The 2^nd Applicant mother now seeks leave to appeal and leave to appeal out of time. I should say at the outset that I accept her explanation with respect to her leave to appeal out of time namely that it was caused in part by the new process. I intend therefore to proceed directly to her application for leave to appeal.

2.  In this instance the mother seeks leave to appeal against the Ruling on Costs dated the 17 August 2018, which followed a Fact Finding judgment dated the 21 November 2017. In that Ruling I said as follows:  

4.    Given the fact that there was no evidence to support the mother’s allegations I said as follows when it came to the issue of costs:

Costs

 32.   The father seeks his costs on an indemnity basis. The mother for her part asks that the normal order be made i.e. that there be no order as to costs.

 33.   I accept that O probably did display some of the acts that so concerned the mother and therefore that the mother did not simply make the whole thing up. But by the same token the mother’s actions did have a malicious undercurrent. I have been particularly concerned by the posting of the father’s undertaking by the mother on Facebook and the fact that she did this not once but twice!! It also seems to me that the mother over reacted and jumped to conclusions. She is an intelligent woman and she was legally represented throughout. Nevertheless, she insisted on her position even though there was no tangible evidence to support it.  It is a matter of great concern to me that litigants should not be able to hide behind the fact that a matter is child related to mask litigation behavior which would not be countenanced in any other situation. Consequently, although an order for indemnity costs seems excessive in the circumstances, I have nonetheless decided that the mother should pay the costs of this hearing on a party and party basis to be taxed if not agreed. This is notwithstanding the fact that this is a child related matter and that this hearing came about at the bequest of the court, as opposed to an application made by either of the parties. Consequently, I shall make an order nisi to be made absolute in 14 days’ time that the mother do pay the costs of and occasioned by the Fact Finding hearing on a party and party basis to be taxed if not agreed.   

The law

3.  Section 63A of the District Court Ordinance allows for an appeal to be made to the Court of Appeal with the leave of the presiding District Court judge.  Section 63A of the District Court Ordinance provides as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

4.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding. The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

5.  In this instance I set out the law on costs and pointed out that although the general rule was that there should be no order as to costs in children’s matters, that this general principle could be departed from if the circumstances demanded it. I was of the view that this was one such case. In my Ruling I said as follows:

 9. Thus the issue to be determined is essentially a question of degree. In what circumstances should a parent be penalised in costs when the dispute is about a child and more specifically about the possible abuse of a child? Generally, it is accepted that there should be no order as to costs in a general dispute over a child. This is so that parents will not be discouraged from raising legitimate concerns which need to be properly ventilated and determined by the courts when considering the best interests of a child. It is however a fine line. When then can it be said that a parent has crossed that line to the extent that a costs order against her (or him) is permissible? And did the mother cross that line in this case?

 10. Given my findings, as set out above, I was initially of the view that the mother had crossed that line for all of the reasons that have been set out in the judgement. Nothing that has been said or written since that has caused me to change my mind in that respect. I stand by my reasoning as set out in paragraph 4 above.

6.  The proposed grounds of appeal are that it was wrong for the court to err from the general principle given that the Fact Finding hearing came about at the bequest of the court and that I did not think that the mother had made the whole thing up. Although that is true, it is also true that the mother was given several opportunities to retract her allegations and she chose not to do so. She was also warned that there may be cost consequences if she chose to proceed as she did. The allegations that she made against the father’s girlfriend were extremely serious and there was absolutely no reason at all for her to link the child’s behaviours to the girlfriend. As I said there was a malicious undercurrent to her actions, which went far beyond acceptable litigation behaviour in children’s matters. The fact that the mother was said to be genuinely concerned about the child was neither here nor there. I remain of the view that her litigation behaviour was such that it is appropriate for her to be sanctioned by a cost order being made against her. I also consider that it is appropriate for her to pay the father as the father’s girlfriend was not joined in the proceedings.

7.  In such circumstances I shall not accede to the mother’s request. Paragraphs 2 and 3 of the mother’s summons dated the 3 October 2018 shall be dismissed. Costs of the summons be to the 1^st Applicant on a party and party basis to be taxed if not agreed.