LEE CHICK CHOI v. THE HONG KONG GOLF CLUB

CAMP 313/2022

[2023] HKCA 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 313 OF 2022

(ON AN INTENDED APPEAL FROM DCEO NO. 11 OF 2019)

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DECISION

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1.  The claimant brought an action in the District Court against the respondent for disability discrimination in terminating his employment. He applied for leave to issue subpoenas on a number of individuals. HH Judge Jonathan Wong (“the Judge”) refused the application by an order dated 12 July 2022. The claimant then applied for leave to appeal against the order, which was dismissed with costs by the Judge in a decision dated 11 August 2022. By a summons dated 24 August 2022 (“the Summons”), the claimant applied to this Court for leave to appeal against that decision.

2.  The trial of the disability discrimination action commenced on 14 September 2022. In view of the Summons, the claimant applied to vacate the trial before it commenced. This was refused by the Judge (see [2023] HKDC 515 at [1.7]). The trial was eventually concluded against the claimant in a judgment by the Judge on 20 April 2023 (see [2023] HKDC 515).

3.  After the trial commenced, the claimant no longer pursued the Summons and took the stance that it should be dismissed without costs. In his letter to the Court dated 3 October 2022, he stated:

“I should be grateful if you would grant me leave … in order to dismiss my Summons dated 24^th August 2022 without costs and waive a proper application …”

4.  As the Summons is no longer pursued, it should be dismissed. What is outstanding is the question of costs. Having read the written submissions and other materials produced by the parties, including the correspondence on costs disclosed by agreement, we now hand down our decision.

5.  We first dismiss the Summons. Under the general rule, costs should follow the event. However, the claimant argued that he should not be ordered to pay costs. In the materials attached to a letter to the Court dated 30 September 2022, he pointed out that he did not completely serve the required papers such as the draft notice and grounds on the respondent until 13 September 2022; and he had since asked the respondent not to spend time on the Summons and had requested consent for its dismissal without costs. However, as stated in the respondent’s without prejudice letter dated 21 September 2022, it had already incurred costs, including costs for the preparation of its written submission. We are not persuaded that the normal rule of costs following the event does not apply.

6.  The respondent submitted that it should be awarded with costs on an indemnity basis in the sum of HK$129,960, on the ground that there was an irregularity in the Summons in that it had proceeded as an application for leave to appeal against the decision refusing leave rather than a renewed application for leave to appeal against the order refusing to issue the subpoenas; and that it lacked substantive merits.

7.  For present purposes, it is not necessary for us to examine the merits in detail. We agree that the claimant’s intended appeal lacked merits and would have no reasonable prospect of success. However, we see no sufficient reason to award costs on an indemnity basis. The respondent relied on Lau Tin Cheung v Tianjin Development Holdings Limited HCMP 1018/2015, 27 May 2015, but it is distinguishable because the applicant there persisted in pursuing an application without merits, whereas the claimant here had made it clear soon after the commencement of the trial that he was no longer pursuing the Summons.

8.  Having considered the respondent’s statement of costs, and the claimant’s submissions, we summarily assess the respondent’s costs on a party to party basis in the sum of HK$80,000.

9.  Accordingly, we dismiss the Summons and order the claimant to pay the respondent’s costs on a party to party basis, assessed summarily at HK$80,000.