TELEVISION BRAODCASTS LTD v. COMMUNICATIONS AUTHORITY AND ANOTHER

HCAL 176/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 176 OF 2013

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D E C I S I O N   O N   C O S T S

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1.  TVB’s application for judicial review was disposed of in my judgment dated 29 January 2016, leaving outstanding the question of costs, on which I have since received written submissions from the parties as directed. In this decision on costs I adopt the abbreviations used in my judgment.

2.  The parties’ positions on costs are respectively as follows.  TVB asks for an order that the respondents pay its costs with a certificate for three counsel.  The Authority submits that as between itself and TVB, each party should bear its own costs or, in other words, there should be no order as to costs.  The CEIC submits that he should be made only to pay 25% of TVB’s costs with a certificate for two counsel.

3.  As is clear from my judgment (§§4, 57 & 175), TVB’s application for judicial review mounted a two-pronged challenge: an attack on the Authority’s Decision itself (Grounds 3 to 7) and a constitutional attack based on the incompatibility of the statutory procedure with the Hong Kong Bill of Rights (Grounds 1 & 2).  In the result TVB succeeded on the latter and largely failed on the former (except part of Ground 7).

4.  In my view the two lines of attack are conceptually wholly separate and different in nature.  Obviously they were raised against the same factual background, and the constitutional challenge needed to be understood and assessed in the context of the nature of the disputes and the Decision.  For the purpose of that challenge alone, however, it would not have been necessary to delve into the merits of the public law challenge against the Decision.  As can be seen from my judgment, the issues raised by the two bases of attack are quite separate and different.  It is also to be noted that the relief sought in reliance on the constitutional ground is different and more extensive, including a declaration that ss. 28 and 34 of the BO are unconstitutional, which I declined to grant (see §174 of my judgment).

5.  Among the Grounds attacking the Decision itself, Grounds 3 to 6, on which TVB failed, had necessitated an examination of the evidence before the Authority including letters from other licensees, interview records and two expert reports, the Authority’s reasoning as expressed in the Decision and the relevant principles of competition law.  In contrast, Ground 7, on which TVB was partly successful, raised a discrete and short point, which turned on very little evidence and could have been disposed of relatively quickly.  While Grounds 5 to 7 were added by amendment formally proposed in August 2015, the underlying complaints were foreshadowed in the affidavit filed in support of the Form 86 at the outset and duly responded to by the Authority in its evidence.  Having regard to the Form 86 (as amended), the evidence filed by the parties and the time spent during the hearing, it seems to me the Authority’s submission that Grounds 3 to 6 took up half (if not more) of the time and effort in relation to the whole proceedings is a realistic estimate not far off the mark. 

6.  In these special circumstances there is in my view justification to depart from the simple rule that costs follow the event, and to apply the principle that a party who is successful in the overall result may nonetheless be deprived of some or all of his costs to reflect that significant time and costs have been incurred in the litigation as a result of the issues he has raised on which he is ultimately unsuccessful.  This may be done even without showing that it was unreasonable for the party concerned to have raised those issues.  For examples of the application of that principle in judicial review proceedings, see Fairbo Investment Ltd v Appeal Tribunal (Buildings) (HCAL 35/2012; 27 January 2015), §§2-5; Hysan Development Co Ltd v Town Planning Board (CACV 232/2012; 13 November 2014) at §6.

7.  Within the constitutional challenge itself, Ground 1, which is a separate ground that turns on the principle of separation of powers rather than any provision of the Bill of Rights, had been raised from the beginning and was only abandoned by TVB effectively by omission in counsel’s skeleton lodged on 22 September 2015.  Further, within Ground 2, on which TVB prevailed, TVB was unsuccessful in its argument based on Article 11, both as to whether the proceedings against TVB involved a criminal charge and the question of the applicable standard of proof.  Having said that, it should be borne in mind that the discretion to deprive a successful party of the whole or part of his costs is to be approached “with due circumspection” and that “there is nothing exceptional about a case being won on only some of the winner’s points”: Commissioner of Inland Revenue v HIT Finance Ltd [2014] 4 HKLRD 412 §§6-7.

8.  In all the circumstances I consider it appropriate that, without prejudice to any costs order already made, despite its success in the result TVB should only be awarded 50% of its costs of these proceedings. 

9.  As regards the incidence of costs as between the two respondents, I recognise that the Authority has made some submissions on the constitutional ground but, on the whole, both in the evidence filed and in the written and oral submissions in the hearing, the Authority has concentrated on defending its own Decision whereas the CEIC has confined himself to defending the statutory scheme.  Taking this into account and given that responsibility for the statutory scheme is ultimately that of the Government (which is headed by the CEIC) rather than the Authority, I consider the appropriate order to be that (i) there be no order as to costs as between TVB and the Authority, and (ii) the CEIC do pay 50% of TVB’s costs.  These costs include those relating to the argument on costs.

10.  While the case has some complexity I do not think it was so complex, difficult or voluminous as to justify a certificate for three counsel.  There will be a certificate for two counsel in favour of TVB.