N v. W

FCMC 5026 / 2015

[2019] HKFC 205

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5026 OF 2015

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RULING

 (Costs)

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Introduction

Costs order dated the 20 August 2018

1.  On the 20 August 2018 I handed down a Ruling on the issue of costs arising out of the wife’s original application for a judgment summons and the ensuing litigation in relation to that issue. In conclusion I ordered as follows:

 Conclusion

 17. Generally speaking the Family Court encourages parties to settle and when they do so they are not normally penalised in costs. In this instance settlement only came very late in the day, making further legal expenditure for the wife inevitable. Other costs ensued because the husband did not proceed as directed by the court. Although I accept that some leeway should be given to him because he is acting in person, there is no doubt that costs have increased for the wife because of this. Given all of the prevailing circumstances I will therefore make an order

 that the husband do contribute towards 50% of the wife’s costs of and arising out of the judgment summons dated the 8 February 2018 such costs to be taxed on a party and party basis if not agreed. There shall be certificate for counsel.  

2.  It is of note that both parties had argued that they had been the successful party and that costs should be paid to them on a party and party basis and that in the absence of any other agreement such costs should be taxed forthwith. (See the wife’s written submission for the hearing on the 25 June 2018 and her subsequent written submissions on costs, dated the 16 July 2018, together with the husband’s submission in reply dated the 27 July 2018). The court did not make either of these orders. The order is as set out above. This was a final order as opposed to an order nisi, given that there had been full argument in relation to it. No other applications have been made in relation to that order. It is of note that the judgment was handed down nearly a year ago. In my view it is not now open to the wife to seek to re-open any aspect of that order. If she had wished to challenge it then, with respect I agree, with Ms Chin, who appeared for the husband, the only available option for her was to have filed an application for leave to appeal. For the avoidance of doubt it was not the court’s intention at the time to order that the costs be taxed forthwith. That remains the court’s position now.

Costs order dated the 17 January 2017

3.  On the 17 January 2017 the husband was also ordered to pay the costs of and occasioned by an application for litigation funding on a party and party basis to be taxed if not agreed with certificate for counsel.

4.  On the 1 February 2017 the court received a letter from the wife, who was then acting in person, in the following terms:

I am the Petitioner in the above proceedings.

I refer to Her Honour Judge Melloy’s Ruling dated 17^th January 2017 on the Respondent’s MPS application for litigation funding by which the Judge has made a costs order in my favour.

In order to save time and costs, in the event the costs order is made absolute, I would be grateful if the Court would make an order for a gross sum assessment and for this to be payable forthwith by the Respondent so that the more time consuming and costly taxation proceedings can be dispensed with and in that event, I would be obliged if the Court would grant me a 14-day period to submit a statement of costs for the gross sum assessment.

I would be grateful if the Court would kindly consider the above and make the appropriate directions at the earliest opportunity. I look forward to hearing favourably from the Court soon.

5.  On the 10 February 2017 the court responded as follows:

Order/Comments:

 1. Please seek the consent of the other side to your proposal.

6.  The court heard nothing further from the wife, or indeed the husband on this point until it received a letter from her re instructed solicitors on the 6 October 2017, when they wrote to the court in the following terms:

We refer to the Ruling of Her Honour Judge S. Melloy dated 17 January 2017, dismissing the Respondent’s application for litigation funding.

Her Honour ordered that the “husband do pay the costs of and occasioned by his application for litigation funding to be taxed if not agreed on a party and party basis.” We understand that no formal Order has been drawn up for this application to-date.

The Order is silent as to whether the parties may proceed to taxation forthwith.

Given the Petitioner’s financial situation, it would be of great assistance to the Petitioner if she is able to recover her legal costs now without having to wait until the conclusion of these proceedings. Therefore, we are writing to seek the Court’s clarification on whether Her Honour had intended for the taxation to proceed forthwith and if so, we should be grateful if Her Honour could make such direction. 

Upon the Court’s kind direction, we will proceed to prepare the draft Order in respect of the Respondent’s application accordingly.

We should be grateful if you could place this letter, before Her Honour for her consideration.

7.  The court responded unequivocally on the 10 October 2017 as follows:

Order/Comments:

1.   No, it was not H.H. Judge Melloy’s intention that the costs arising out of the Ruling dated the 17/1/2017 be taxed forthwith.

8.  This then is the end of the matter. Again the wife did not issue any further applications in relation to this order.

Conclusion

9.  In both instances the court has made an order on costs. It had not ordered that the costs should be taxable forthwith. This was not an oversight. The issue had been considered and those orders were not made.

10.  It is not now open for the wife to seek to reargue these matters now – especially given that she has not even issued a summons in relation to the same, so her position remained somewhat opaque right up to the hearing on the 25 June.

11.  The fact that the court had adjourned the issue of costs to this date is simply reflective of the fact that HH Judge Melloy had been asked to do so. She was not taken to any of the arguments and had not realized that she had effectively already made a decision on both of the points now raised.

12.  With respect these were not matters that were capable of being reargued. HH Judge Melloy stands by what she said during the hearing. Parties cannot keep returning to court on matters of this nature until they get the decision that they want. That is not how the system works. For the avoidance of doubt I accept the Respondent’s primary point that the two costs orders are not taxable until the conclusion of the action. The wife’s application, such as it is, shall be dismissed. The husband asks for his costs of the matter to be taxed forthwith and to be summarily assessed. I shall not make this order either. The costs arising out of the hearing on costs on the 25 June 2019 shall be paid by the Petitioner, on a party and party basis. The costs shall NOT be taxed forthwith neither shall they be summarily assessed. The costs for this hearing shall also be dealt with at the end of the action.

13.  The parties are caught up in aggressive and time consuming litigation. I appreciate that the issue of costs is very much a live issue. However, it is suggested that the parties should concentrate on the task in hand as opposed to peripheral issues of this type. For the avoidance of doubt leave of the court shall be sought with respect to any further interlocutory applications that the parties seek to issue, prior to the matter returning to this court following determination of the s 17 application in the High Court next year.