YAP SUI KONG v. YIP FONG TIM

HCA 1409/2013

[2018] HKCFI 2532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1409 OF 2013

_______________

_______________

_________________________________________________

DECISION ON APPORTIONMENT OF TRIAL COSTS

_________________________________________________

Introduction

1.  This decision is intended to deal with (i) para 81, Court of Appeal judgment dated 26 September 2018, and (ii) the Court of Appeal’s subsequent directions given in a letter dated 22 October 2018.

2.  The relevant parts of the said judgment read:

“… For the costs [of the trial in the Court of First Instance], the Defendant is successful in resisting the Plaintiff’s challenge to the parentage of ICH [the defendant’s late father] and should have that part of the costs below. The costs of the Plaintiff’s lineage should be in the cause of the retrial on the remitted issue [namely, the lineage of the Plaintiff]. Parties are directed to try to agree on the apportionment of the costs below on these two issues and report to the Court within 21 days.”

3.  Apparently the parties could not agree on the costs apportionment; the plaintiff’s solicitors informed the Court of Appeal of this in a letter dated 16 October 2018.  This prompted the Court of Appeal to direct (in the said letter of 22 October 2018) that:

“The apportionment of the costs below … shall be remitted to Hon Chung J who may decide the same on the papers after receiving written submissions (not more than 5 pages) from the parties.”

The plaintiff’s case

4.  The plaintiff puts forth in short the following grounds in support of its stance that trial costs should be split equally between the two issues:

(a) the contents of the pleadings, witness statements and written submissions at trial were more or less evenly balanced;

(b) the trial documents were more focused on the issue of the plaintiff’s lineage (than the parentage of ICH) (and more voluminous).

5.  Based on the above, the plaintiff submits that there should be “a 50/50 allocation of [trial] costs between the two issues” (para 5, plaintiff’s submissions on costs).

The defendant’s case

6.  The defendant, on the other hand, argues that he should be awarded two-thirds of the trial costs:

(1) the plaintiff’s expert report was almost entirely concerned with the parentage of ICH (there was no defence expert);

(2) the testimony of 8 out of 9 of the plaintiff’s witnesses was mainly focused on the parentage of ICH (two witnesses testified entirely about that issue);

(3) the defendant did not adduce any positive evidence regarding the plaintiff’s lineage, but only put the plaintiff to proof of the same;

(4) the defendant’s testimony was only about the parentage of ICH, and his cross-examination was focused on that issue.

Apportionment

7.  In brief, (subject to para 12 below) I am more inclined to agree with the defendant’s estimate (especially para 6(2) to (4) above).  Consequently, I agree with the summary given in para 6 above rather than that in para 4 above.

8.  The parties’ respective closing submissions can also reflect the relative importance of the two issues at the time of trial.

9.  The plaintiff’s closing submissions were about 12 pages long.  Pages 2 to 8 were devoted to the plaintiff’s analysis of the witnesses’ testimony and the relevant facts (such as the placing of the remains of the plaintiff’s father in the village, the remittance to the defendant and family genealogy).  Pages 8 to 12 concerned the parentage of ICH (it is noted that the plaintiff additionally relied on the contents of pages 2 to 3 as also relevant to this issue).  In short, the length of the plaintiff’s closing submissions was equally split between the two issues.

10.  The body of the defence closing submissions were about 15 pages long.  The plaintiff’s lineage was discussed at pages 1 to 6 whereas the parentage of ICH was discussed at pages 6 to 13.  Similarly, the defence closing submissions attributed roughly equal lengths to the two issues.

11.  But the written documents were not the only source of evidence relied upon by the parties.  Because the resolution of factual disputes was of crucial importance to the outcome of this action, witnesses’ testimony (including their cross-examination) was of at least the same importance.  The defendant’s observation summarized in para 6(2) to (4) above should therefore be taken into consideration.

12.  Having taken para 8 to 11 above into account:

(a) I do not agree entirely with either the plaintiff’s apportionment or the defendant’s apportionment;

(b) I rather conclude that three-fifths of the trial costs should be apportioned to the issue of the parentage of ICH, whereas the issue of the plaintiff’s lineage should be apportioned two-fifths of the trial costs.