CHINA LIGHT & POWER CO. LTD. and Anotherv. WARNER B G BANKS, Esq

MP No.4148 of 1993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The inquest verdict has been quashed and the applicants seek costs against the coroner. It is common ground that the court has jurisdiction to entertain the application for costs under O.62, r.3(3) Rules of Supreme Court. It is also accepted on all hands that in principle, when the court sees fit to exercise its discretion to make an order as to costs, the court shall order the costs to follow the event unless the circumstances of the case warrant some other order to be made.

2. By its nature, the coronial court has been treated as a special category in administrative law. How then is an application for costs against a coroner in judicial review proceedings to be judged? In paragraph 53/1-14/51 at page 866, Vo1.1, 1993 Annual Practice, a bald statement reads: "The coroner may be ordered to pay such costs as the court thinks fit". In paragraph 193 at page 298 of Vol.1(1), Halsbury's Laws of England, 4th Edition, it is stated that costs may be awarded against justices or similar tribunals [including coroners] who "appear and dispute" an application in judicial review. The statement continues : "Costs are, however, awarded against justices or similar tribunals [including coroners] only when they have done something which called for strong disapproval by the courts". Whilst the sentence in the White Book is general, the statement in Halsbury's is more specific. However, there is still room for debate. In Jervis on Coroners, 11th Edition (1993), para. 19-16 at p.348, costs against a coroner are dealt with in these terms:

"If the coroner does appear at the hearing, and loses, then the court has a discretion whether to order the coroner to pay the successful applicant's costs, even though he acted reasonably. But such an order has only rarely be made; usually no order is made unless the coroner's behaviour called for strong disapproval." (Emphasis supplied).

If the court should retain its unfettered discretion to mulct an opposing coroner in costs "even though he acted reasonably", it would seem arguable that costs may be awarded without any gross impropriety which drew stern reproof. The passage may, of course, be read as meaning that no order for costs is usually made against an unsuccessful coroner who has appeared and defended his action unless his behaviour called for strong disapproval, but that even if he acted reasonably, the court always retains its residual discretion in matter of costs.

3. In "Coroners' Inquiries - a guide to law and practice" by J.D.K. Burton, D.R. Chambers and P.S. Gill, officers of the Coroners' Society of England and Wales (1985), pp.258 and 259, the position of an unsuccessful coroner who has appeared and been represented is also not directly addressed. These officers conclude: "The court will not grant costs against the justices or similar tribunals [including coroners] who are not represented nor appear at the hearing unless they have acted perversely or with some disregard of the elementary principles which every court ought to obey, and even then only if it was a flagrant breach of those principles". (Emphasis added).

4. "Judicial Review" by Michael Supperstone, Q.C. and James Goudie, Q.C. (1992) and "Judicial Review" in Section C of "Crown Office Proceedings" (1990) by Richard Gordon seem to suggest that once a coroner has appeared and unsuccessfully resisted a judicial review application, the usual principle of O.62, r.3(3) RSC would apply. No reference is made to "strong disapproval", "perversity", "gross impropriety", obstinacy or other censurable behaviour. Page 385 of "Judicial Review" by Supperstone and Goudie contains the following passage:

"If justices do appear at the hearing of an application and are unsuccessful, the court will apply the normal principles when exercising its costs discretion, thus making it likely that costs will be awarded against them."

5. It may be said that this passage seeks to bring into focus the statutory alternative open to justices to file an affidavit setting out the grounds of his decision under review in accordance with s.3 of the Review of Justices' Decisions Act, 1873. However, an earlier passage at the same p.385 reads:

"Special rules have developed relating to the position vis-a-vis costs of justices when one of their decisions is subject to an application for review. Following general principles it could be said that if the application succeeded, the justices should be liable in costs since their action had materially contributed to the error giving rise to the application. However, when, although served with the notice of motion, the justices do not appear at the hearing or resist the application, costs will not be awarded against them. In R. v. Liverpool Justices, Ex-parte Roberts, this principle was extended to include the prosecuting authority. This was approved by the divisional court in R. v. West Yorkshire Coroner, Ex-parte Kenyon which referred to the 'general principle' that on an application for a judicial review costs would not be granted against a public body, where that public body had not appeared and was not represented, and error of law was not something which called for strong disapproval by the court. As indicated in that decision costs will, however, be awarded if it is a flagrant incident. The fact that the justices made a mistake of law, or overlooked the provisions of a statute in reaching their decision will not of itself entitle the successful applicant to recover his costs." (Emphasis added).

6. C5-096 and C5-097 in Section C of "Crown Office Proceedings" also seem to suggest that what triggers the operation of the usual principles in O.62, r.3(3) RSC is the attendance itself of a public body in support of their decision:

"Costs Usual Practice C5-096 Usually costs will follow the event. A successful party will (subject to the qualifications set out below) generally recover costs against the other (including, as appropriate, the costs of the application for leave). Costs are, of course, in the discretion of the court which must be exercised judicially."

"Restrictions on Costs under O.53 - C5-097 Where the applicant succeeds against a public body, the court is unlikely to award costs where such public body has not appeared and has not been represented, provided that any error of law made is not something that called for strong disapproval by the court. This principle applies, inter alia, to justices and to coroners. The position is otherwise where there is an appearance and the respondent is not successful". (Emphasis added).

7. The passage in p.582, de Smith's "Judicial Review of Administration Action", 4th Edition (1980), is also less than explicit:

"The general rule with regard to costs is that they follow the event as between the applicant and the party who improperly procured the impugned order, unless there are special circumstances that make it proper for an exception to be made. As far as members of the tribunal are concerned, the general rule in prerogative order proceedings used to be that a successful applicant would not be awarded costs against them unless they had been guilty of serious impropriety and had been represented before the court to oppose the application; but more recently, the Divisional Court has awarded costs against magistrates who had unsuccessfully opposed applications for certiorari and mandamus by instructing counsel on their own behalf instead of merely putting in their affidavits reasons for their decisions. Again, a similar practice will no doubt be followed in applications for judicial review."

8. Of the Hong Kong cases, I was referred to Wong Kui Wai v. W.B.G. Bank Esq.Her Majesty's Coroner of Hong Kong, in MP No.3476 of 1992 (unreported), the judgment of which was delivered on 20th April 1993 by Mayo, J. At the conclusion of his judgment, the judge proceeded to award costs in favour of the applicant. It did not appear that costs were argued or resisted. In Lam Ho and Others v. Immigration Tribunal, MP No. 1190 of 1990 (unreported), by a ruling on costs given on 21st January 1994, I refused an application for costs against an Immigration Tribunal who did not appear to defend their questioned decision. The ruling was unconcerned with the position of a public body who had appeared and been represented. In this case, the coroner appeared and contested the application. It is, therefore, necessary to examine what the practice is.

9. The English practice is followed in Hong Kong, and the practice on awarding costs against coroners may be gleaned from the cases decided. It is perhaps convenient to begin with R. v. Llanidloes Licensing, Justices. ex-parte Davies, [1957] 1 WLR 809, which explains the unique position of justices. Lord Goddard, C.J. reminded the justices in these terms:

"If the justices appear in the Divisional Court, they make themselves parties to the lis. They take the risk of being ordered to pay costs,...... That Act [Review of Justices' Decisions Act, 1872] was passed for the very purpose of allowing justices, against whom certiorari or mandamus was moved, to put in affidavits (on which they do not have to pay any stamp duty) giving their reasons, so that the court could decide the case on the affidavits; but if justices insist on instructing counsel to come before the court and argue the case, they are making themselves parties to a lis and will have to pay costs. At one time, this court very rarely ordered costs, and I think the reason was that the Act of 1972 was overlooked, but for at least three years now I have been trying to remind justices of the presence of this Act on the Statute Book, and if they are not content with exercising the power Parliament has given them, but insist on appearing and arguing the case, they will have to pay costs if they lose. The justices in the present case have made themselves parties before this court and opposed the application, and the applicant is entitled to costs against them."

10. Justices have had costs awarded against them for outrageous conduct, recalcitrant behaviour or caprice such as gross impropriety, real bias, refusal to state a case and callous haste.

11. In R. v. Goodall, (1874) LR 9 QB 557, at p.559 Cockburn, CJ observed:

"This court does, in some cases, inflict costs on justices when they have been guilty of some gross impropriety in the exercise of the summary jurisdiction."

12. In R. v. Meyer, (1875)1 QBD 173, justices appeared by counsel to show cause why certiorari should not issue on alleged real bias of one of them. Certiorari was granted on real bias with costs against the justice concerned.

13. In R. v. Huntingdon Magistrates' Court, ex parte Percy, Times 4th March 1994, costs were awarded by Balcombe L.J. against justices for their continued refusal to state a case after leave for judicial review had been granted.

14. In R. v. Bell etc Justices, ex parte Flinn and Sons, (1899)15 TLR 487, justices refused to act in either stating a case or giving a certificate that the point raised was frivolous. Mr Justice Darling suggested that an award of costs might induce the justices to comply expeditiously with the order to state a case. Costs were accordingly awarded against the justices unless they would state a case within a week. The order seemed to have been made in terrorem with little justification.

15. In R. v. Coventry Rent Tribunal, ex parte Whitcombe, 1st December 1948 (unreported), Lord Goddard C.J. is quoted in footnote 12 of p.299, para.193, Vol.1(1) Halsbury's Laws of England, 4th edition to have said:

"The court will not grant costs against justices or similar tribunals merely because they have made a mistake in law, but only if the tribunal has acted improperly, that is to say perversely or with some disregard of the elementary principles which every court ought to obey, and even than only if it was a flagrant instance; in that case the court awarded costs against a tribunal which had refused to follow decisions of the Divisional Court which were cited to it."

16. In R. v. Willesden Justices. ex parte Utlay, [1948]1 KB 397, at p.400 Lord Goddard, C.J. had this to say: "It is the rarest thing for this court to give costs against the justices. The only case is when justices have done something which calls for strong disapproval from this court." The justices appeared by counsel before the Divisional Court in defence of their sentence, but costs were not awarded against them.

17. In R. v. Kingston-Upon-Hull Rent Tribunal, ex parte Black, [1949]1 AER 260, the Tribunal appeared by counsel. After having commented that if there had been no appearance by the Tribunal, the court would not have awarded costs in the case, Lord Chief Justice Goddard concluded :"We decide this case on the ground that the landlord had to come here, at considerable expense to herself, to have the decision of the Tribunal quashed, and the Tribunal have appeared by counsel and have disputed her right to have an order for certiorari. On the whole, as the Tribunal have appeared here and have contested this case, we think the landlord ought to have her costs." (Emphasis supplied).

18. In R. v. Paddington South Rent Tribunal. ex parte Millard, [1955]1 AER 691, at p.693 C Lord Goddard, CJ observed: "It does not matter to the tenant (who is legally aided) whether costs come out of one fund or another, but so that we should not be making a precedent, I do not think we should give costs against the Tribunal. We never give cost unless they act improperly." The Tribunal appeared by counsel, later the Lord Justice Winn.

19. In R. v. Amersham Justices, ex parte Fanthorne, (1964)108 Sol. J.841, Lord Barker, C.J. said "that the court would make an order for costs against justices only if they had behaved badly, either flouting decisions of the court or being guilty of some outrageous conduct."

20. In In Re Inquest into the Death of Calvi (Roberto). deceased, Times 2nd April 1983, the coroner sat 12 hours from 10 a.m. till 10 p.m. on the same day. His misdirection to the jury was said to be "as good an example as any of a tired man". The objectionable contents of two statements had been wrongly admitted. Lord Lane, C.J. ruled "that the coroner should pay half the costs on the understanding that he would be reimbursed by the City of London". See the synopsis given at p.251, "Coroners' Inquiries - a guide to law and practice".

21. In R. v. Turnbull ex parte Kenyon and Another (unreported), the judgment of which was delivered on 9th April 1984, the Divisional Court overruled the coroner on "a somewhat difficult and novel point of law". It was regarded as "a serious error of law" on the part of the coroner who did not appear nor was he represented. The provisional order for costs made against the coroner was set aside. Kerr, L.J. cited with approval the passage in Vol.1(1) of Halsbury's Laws of England, 4th Edn., and he concluded: "An error in law is not something which calls for strong disapproval by the court. I may add that I had occasion some months ago to make precisely the same order against another coroner who had somewhat peremptorily fined the police doctor who arrived late and he did not, and perhaps rightly, seek to contest that order, nor to have it set aside."

22. In R. v. H.M. Coroner for Dyfed, ex parte John Royston Evans (unreported), the judgment of which was given on 24th May 1984, the coroner also did not appear and was not represented. The above passage in Halsbury's was cited to Watkins L.J. in the Divisional Court, and for the special circumstances in the case, Watkins L.J. saw fit to depart from the general practice and grant costs against the coroner. In Evans, a young healthy man of 25 was killed on a railway level crossing. At the inquest, the jury returned a verdict of suicide left to them. The coroner withheld a statement from the deceased's father and there was no explanation as to why the coroner neglected to seek to put before the jury readily available evidence of other witnesses in a small community. In fact, after the verdict, some 19 statements inconsistent with a suicidal intent were obtained. The coroner also misdirected the jury on the standard of proof and on presumption in relation to suicide. Watkins L.J. awarded costs against the coroner in absentia.

23. Counsel very kindly caused to be placed before me transcripts of the judgments in Kenyon and Evans.

24. In In the matter of an Inquest into the Death of Adam Bithell. deceased, (1986) 150 J.P.273, Whitcombe, Kenyon and Evans were cited to the Divisional Court. The coroner did not appear and was not represented. At p.285, McCullough J. acknowledged the usual principle but took into account the expenses the applicants had had to bear, first the costs of one inquest, secondly, the costs of applying to the Attorney General for his authority, thirdly, the costs of prosecuting the proceedings in the Divisional Court and lastly the costs of an ordered further inquest. McCullough, J. took the view that "the overall interests of justice" would permit him not to apply the general principle. By the same parity of reasoning of the applicants' "considerable expense" as in R. v. Kingston-upon-Hull, ex parte Black, supra., Bithell was decided.

25. In R. v. West London Coroner, ex parte Gray & Others, (1987)151 JP 209, the coroner appeared and was represented. At p.222 Watkins L.J. declined to award costs against the coroner for his non-directions, his misdirection on the law of manslaughter, his unsatisfactory direction on the standard of proof and his error in leaving with the jury 8/9 pages of closely typed directions lacking in clarity. Serious errors of law had indeed been made.

26. In R. v. Shrewsbury Coroner's Court. ex parte British Parachute Association, (1988)152 JP 123, the coroner appeared and was represented. Lloyd L.J. gave the following reasons for not awarding costs against him:

"We have decided not to make any order for costs, really for three reasons : First of all, although this may be regarded as somewhat technical, that he only won on an amendment which was put forward at a late stage. Secondly, this is not a case where we could express strong or indeed any disapproval of the coroner, save as to omission under r.41 to draw the jury's attention to r.36(2). He was only following what is said to be, and I accept, is a common practice. Thirdly, there are not any special factors present here, as there were in the case before McCullough, J. the case of Bithell (1986) JP 273."

27. In R. v. St. Pancras Coroner's Court, ex parte Higgins, (1988)152 JP 637, the coroner appeared and was represented. The coroner was held to have misdirected the jury as to recklessness and standard of proof. There was also no evidence to justify a verdict of unlawful killing. After protracted submissions made as to costs, no order was made against the coroner.

28. In R. v. Inner North London Coroner, ex parte Diesa Koto, (1993)157 JP 857, the coroner appeared and was represented. In addition to other misdirections, before the Divisional Court it was held inappropriate to leave "lack of care" to the jury. In fact, the coroner had rejected submissions that "lack of care" should be left to the jury. The inquest was discontinued to enable an application for judicial review to be made. The coroner consented to sum up at the resumed inquest in the light of the judgment on his other misdirections, and no order as to costs was made against him.

29. It is possible to cull the practice from these authorities, looked at in the round, particularly that for coroners from the unreported cases decided in 1984. It would seem that save for special circumstances, no coroner (whether or not appearing or represented) should be mulcted in costs unless his behaviour called for strong disapproval of the court. Instances of these special circumstances are : a public body may be visited with costs if they have peremptorily refused to state a case as in Percy and Flinn. However, the order made in Flinn may be open to criticism as an order made in terrorem. Costs may also be awarded against a coroner for his outrageous conduct e.g. sitting through a 12-hour session from 10 a.m. to 10 p.m. as in Roberto Calvi. If an applicant is obliged to pay enormous costs by private means, an order may be made against the coroner as in Black and Bithell, where the courts had balanced "the overall interests of justice" in the case "as a whole".

30. The coroner in this case could not have failed to appreciate that the civil law of negligence, being difficult and complex, was not an appropriate issue for a fact finding inquest. He should have paid due and proper regard to the warning of Lord Lane, C.J. in R. v. South London Coroner, ex parte Thompson & Others, (1982)126 SJ 625 at 626:

".... It should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilty. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses, an accused defends, the judge holding the balance or the ring whichever metaphor one chooses to use."

He ought to have realised that any attempt to enlarge the ambit of "lack of care" for determining negligence in the civil sense could not satisfy the requirements of fairness in action and would invariably draw upon the proceedings administrative law challenges. There are passages in the judgment delivered in In re Medical Defence Union Limited and Another, [1990]2 HKLR 44, which give some oblique support to an enlarged "lack of care" verdict. But the coroner in this case had been specifically directed to the later judgment in In re Doctor Steven S.H. Li (1991)1 HKLR 122. At p.125 E/F and G/H-I, all participants in the later case were clearly recorded as being dissatisfied with the decision in the earlier Medical Defence Union case. Much criticism was levelled at it. The judgment in Medical Defence Union was subject-matter of an appeal and a cross-appeal. In the judgment of Doctor Steven S.H. Li, counsel for another coroner, Mr Whaley is said to have described the earlier judgment in Medical Defence Union as "an extraordinary decision". The coroner in Doctor Steven S.H. Li was said to have had to "struggle" with it. Dissatisfaction with the Medical Defence Union judgment was evidently widespread. The court in the case of Doctor Steven S.H. Li was invited to disregard it. Apart from the fact that the Doctor Steven S.H. Li judgment was later in time and abided by the English law and practice with reference to "lack of care", a clear holding made in Doctor Steven S.H. Li was that "lack of care" did not depend on the common law duty of care. See p.133D. It must be recognised that only an interlocutory decision was sought to be reviewed in Doctor Steven S.H. Li. When the Medical Defence Union case reached the Court of Appeal [1991]1 HKLR 429, both Fuad V.-P. and Kempster J.A. accepted the English law and practice. At p.456 Penlington J.A. agreed with Fuad V.-P. and Kempster J.A., but he spoke of the category of "person or persons who owed a duty of care" as possibly including, in an instance "put forward by Fuad V.-P. in the course of the argument, a signal-man who apparently failed to take proper steps and a train crash resulted." Fuad V.-P. did not repeat nor rely upon the same instance in his judgment. The coroner in this case must have preferred, with little justification, an earlier inconsistent High Court judgment which had evoked dissent from every conceivable corner. He also accepted a submission made on an observation prompted by an example broached by Fuad V.-P. presumably in his process of elimination during counsel's arguments. But both the case of Medical Defence Union and the case of Doctor Steven S.H. Li were not decisions designed to drop a marker for "lack of care" in the Hong Kong coronial context. Doctor Steven S.H. Li was merely an interlocutory application for judicial review. The suggested extended sense of "lack of care" for a coronial inquest in Medical Defence Union was at best inferentially overruled by the Court of Appeal. It cannot be said that in this case the coroner had capriciously refused to follow any binding decisions. He was, in my view, in error and the error was a serious one. But in his over-zealous attempted application of "lack of care" beyond the coronial sense, the coroner was not perverse or in breach of any settled practice for Hong Kong. He was certainly more robust than the coroner who declined to leave "lack of care" to the jury in R. v. Inner North London Coroner. ex parte Diesa Koto, supra. It would not be fair to condemn his action as a flagrant disregard of elementary principle. After all, the coroner was extended an open invitation by Mr Grossman in the terms summarised before me viz. "the ruling of neither Barnett, J. nor (Liu, J.) nor the Court of Appeal precluded such a (lack of care) finding". Moreover, it is believed that the decision of this court will be further tested. The coroner cannot be accused of any inconsistency in his withholding of the "lack of care" verdict from the jury in a dissimilar set of circumstances at the first inquest. The coroner's conduct called for no strong disapproval.

31. I have taken into consideration the applicants' need to quash the "lack of care" verdict which had caused unwanted repercussions. As for the coroner, he had chosen to appear and vigorously contest the application. The applicants' prosecution of the judicial review proceedings cannot be justly criticised. There was no other avenue for setting aside the "lack of care" verdict. The applicants have incurred considerable expense, but out of corporate finance. In conclusion, the coroner's conduct does not call for strong sanction. The applicants' efforts in successfully challenging the coroner's "lack of care" verdict have not brought upon them unusual hardship. The exercise was no more exacting than the usual commitment of any applicant in seeking to question a coronial verdict. In this case, there are no special factors for departing from the general practice. The coroner should not be ordered to pay costs. The order nisi is not, therefore, to be made absolute. It is set aside. Subject to what counsel have to say, I make no order as to costs up to this morning's attendance.