IP HIU YING v. THE HOSPITAL AUTHORITY AND ANOTHER

HCA9/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9 OF 2001

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R U L I N G

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1. In this action I gave the plaintiff leave to discontinue, and made no order as to costs.  So the parties had to bear their own costs.  This was after two days of hearing.  My judgment ran to 24 pages.

2. The normal order on discontinuance is for the plaintiff to pay the other parties’ costs up to the date of discontinuance.  Now the plaintiff, who did not have to pay the other parties’ costs, as is normal on discontinuance, seeks leave to appeal on costs only.  The 2^nd defendant seeks leave also but only in the event that I give the plaintiff leave.  It is agreed that if I do give leave to the plaintiff, the 2^nd defendant will have leave also.

3. A decision on costs may be set aside or varied on appeal, if the appellant can demonstrate that the judge at first instance failed to exercise his discretion, or exercised it on a false principle, or did not exercise it judicially, or that the exercise was demonstrably flawed.  See Hong Kong Civil Procedure 2004 at paragraph 62/2/11 and cases there cited.

4. In this case the plaintiff says that I exercised my discretion on a wrong principle, namely that a plaintiff can only have costs on discontinuance if he can demonstrate that, had he gone to trial on the main issue, he would have succeeded.  It is said that the proper principle is that a plaintiff can have his costs on discontinuance if he can show that he was justified in raising the action in the first place.

5. Reference is made in particular to the case of Davies v。 Davies [1999] 3 FCR 745 where the English Court of Appeal upheld the decision of a judge at first instance to allow costs to a petitioner, who had applied for an order barring the respondent’s solicitor, who had previously acted for her, from continuing to act for the respondent.  She later discontinued the application, not because she accepted defeat but for practical reasons.

6. It is to be noted that in that case, the applicant would inevitably have succeeded if she had pursued her application, because of the conflict of interest which the solicitor had.  It is also to be noted that, while the Court of Appeal upheld the decision, Aldous LJ remarked that the judge could have “applied a broad axe” and made no order as to costs.

7. In arriving at the decision which I did, I relied on the judgments of the Hong Kong Court of Appeal in Ta Tung China & Arts Ltd v. Fontana Restaurant Ltd & Ors [1999] 1 HKLRD 404 and Ch’ng Poh v. Cheng Yeung & Co. [1998] 3 HKC 643.  These judgments are binding on me.  I do not, therefore, see that it is arguable that I applied a wrong principle.

8. Mr Sarony argues that those judgments do not rule out the possibility of applying the test of whether, when the proceedings are instituted, the plaintiff is justified in instituting them.  That may be so.  But, with respect, I do not see how a party can get costs unless he succeeds on trial, or, if the trial never materialises, shows that he would have succeeded.  One may be perfectly justified in bringing an action in the first place, in the sense of having a good arguable case, but still lose and pay the costs of it.

9. If there are two possible ways to approach the problem, and this court chose one of them and not the other, I do not think that that would make the decision wrong in principle.  That would only be so if the principle not applied were demonstrably the only proper one to apply.

10. I do not see therefore that this is a proper case for leave to appeal.  However the plaintiff has the remedy, if she wishes to take it, of applying directly to the Court of Appeal for such leave; and that is perhaps the better course, if what is sought is to persuade that court that its view of the principle is erroneous.

11. There is also the question of practicality and the requirement that the court act as a filter in applications for leave to appeal.  See Ho Lee Man v. Wong Wai Kai [1993] 2 HKLR 198, Tang Man Kit & Anor v. Hip Hing Timber Co. Ltd [2002] 588 HKCU 1.  The costs to date are not so large.  They will be very large, if the matter goes to the Court of Appeal.  I think the filtering process should operate here to protect the defendants from further costs.

12. Leave to appeal is therefore refused.

13. Costs be to the 1^st and 2^nd defendants, to be taxed if not agreed

14. There will be an order in terms of paragraph 1 of the plaintiff’s summons, which deals with amendment of the Order; and no order as to costs thereon.