COSIMO BORRELLI AND OTHERS v. LINKLATERS (A FIRM)

HCMP 410/2025

[2026] HKCFI 4655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 410 OF 2025

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D E C I S I O N

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1.  On 5 November 2025, I made an order (“Order”)[1] on the 1^st to 3^rd Plaintiffs’ (“Plaintiffs”) application by originating summons filed on 17 March 2025 for production by the Defendant to the 3^rd Plaintiff of documents listed in the list of documents served and filed by the Defendant pursuant to the order of DHCJ Gary Lam dated 24 April 2025 (“April Order”).  In paragraphs 6 and 7, I made the following costs orders:

“6. There be a costs order nisi that the 1^st to 3^rd Plaintiffs pay the Defendant’s costs of and occasioned by the Originating Summons other than those attributable to the Intervenor’s intervention and opposition to the Originating Summons.

7.  There be a costs order nisi that the 3^rd Plaintiff pays the Defendant’s reasonable costs of compliance with the order of DHCJ Gary Lam dated 24 April 2025 and this Order.”

2.  The Plaintiffs applied by summons filed on 19 November 2025 to vary the two costs orders.  On 19 May 2026, I dismissed the application in respect of paragraph 6.  That decision the Plaintiffs accept.  I also dismissed the application that the existing paragraph 7 be replaced with an order that the Intervenor shall pay the Defendant’s reasonable costs of compliance with the Order and April Order[2].  In other words, it was the Plaintiffs’ position that the Intervenor should pay the costs of compliance with the Deputy Judge’s April Order rather than themselves.  I dismissed that application.  It is that decision that the Plaintiffs wish to appeal to the Court of Appeal.

3.  A draft notice of appeal is appended to the summons seeking leave to appeal (“Plaintiffs’ Appeal Application”).  Three grounds are contained in the draft notice.

4.  The first is that the Court did not consider properly the April Order, which required the Defendant to prepare a list of documents with two categories and was necessitated by the Intervenor’s intervention.  Also, the Defendant’s express position was that its costs incidental to the preparation of the list of documents be in the cause of the Intervenor’s opposition to the originating summons.  Dealing with the second of those two points first, the Defendant’s position in April 2025 seems to me to be irrelevant, particularly given the fact that it was not the position that the Defendant took during the hearings, which directly addressed the issues referred to in the first paragraph of this Decision concerning costs.

5.  As is apparent from the language of paragraph 6 of the Order, I did consider the position in respect of costs attributable to the Intervenor’s intervention and in paragraph 8, I ordered that the Intervenor pays the 3^rd Plaintiff and the Defendant’s costs of and occasioned by the Intervenor’s opposition to the originating summons.  Paragraph 1 of the April Order provided that the Defendant do produce to the 3^rd Plaintiff and the intended intervenor a list of documents based on Annexure A to the originating summons, with two categories:

“1. Documents that exclusively belong to the 3^rd Plaintiff;

2.  Documents that belong to the 3^rd Plaintiff and the Intended Intervener.”

6.  I took the view, having reached the decision recorded in my Judgment dated 5 November 2025, that the costs of the preparation of the list itself should be borne by the Plaintiffs.  I was not persuaded on the Plaintiffs’ application to vary that Order that it should be changed.  As the Intervenor submits on the present application, it is not, as the Plaintiffs contend, clear that the preparation of a list of documents that the Plaintiffs were seeking from the Defendant was a cost clearly attributable only to the Intervenor’s intervention.  I would have expected a list of the documents that were produced by the Defendant to have been prepared in any event, and the analysis required in order to divide the list into the two parts that I have referred to does not in itself appear to have added substantially to the work.  It does not seem to me that, in taking this view, I was clearly wrongly exercising the discretion which it is not in dispute that the Court has in respect of costs.

7.  The second ground, as I understand it, is that the brief reasons I gave in respect of my decision did not expressly deal with the arguments contained in the Plaintiffs’ written skeleton.  As a statement of fact, it is correct.

8.  The third ground is a variant of the second, namely, that I did not give reasons for departing from the general rule that costs follow the event (I do not understand it to be in dispute that there is such a general rule) and that the Intervenor was unsuccessful in its opposition to the originating summons.  It follows that, unless there was reason otherwise, the Intervenor should have been liable for the costs incurred by the Defendant in preparing the list of documents.  As with the second ground, I accept it is correct that the reasons do not address this particular point.

9.  On any appeal of my decision, what the Court of Appeal needs to be persuaded of is not simply that the reasons did not spell out my reasoning for declining to change my mind, but that the decision was wrong.  For the reasons I have stated earlier, it does not seem to me that it is reasonably arguable that it was.

10.  I, therefore, dismissed the Plaintiffs’ Appeal Application for leave to appeal.  The Plaintiffs do pay to costs of the Plaintiffs’ Appeal Application to the Defendant and the Intervenor.