CHAN SHUN KEI t/a CHAN SHUN KEI CONSTRUCTION WORKS v. HONG KONG CONSTRUCTION (HONG KONG) LIMITED (formerly known as HONG KONG CONSTRUCTION (HOLDINGS) LTD )

HCMP 2302/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2302OF 2014

(ON AN INTENDED APPEAL FROM HCCT NO. 2 of 2011)

________________________

________________________

_______________

JUDGMENT

_______________

Hon Lam VP (giving the Judgment of the Court):

1.  By a summons of 18 June 2014, the plaintiff sought amendment or clarification of a sealed order on costs made by Deputy Judge Burrell. The summons was dismissed by Mimmie Chan J on 25 June 2014. Leave to appeal was refused by the judge on 2 September 2014. All these happened against the background that on 22 April 2014, the plaintiff also sought leave to appeal against the costs order. That application was refused by Mimmie Chan J on 3 July 2014. On 17 July 2014, the plaintiff issued a summons in HCMP 1745 of 2014 seeking leave from this court to appeal against the costs order.

2.  By the time the present summons was taken out on 16 September 2014, leave had already been granted on 11 September 2014 in HCMP 1745 of 2014 to challenge the costs order of Deputy Judge Burrell.   Whatever problems or clarifications which the plaintiff needs in respect of that order can be properly canvassed and addressed in the context of that appeal.   As far as issues related to the costs order of Deputy Judge Burrell were concerned, there was no need to take out a further satellite application to pursue an appeal against the decision of Mimmie Chan J of 25 June 2014.

3.  Further, we are of the view that the interpretation of Mimmie Chan J put on the costs order of Deputy Judge Burrell was plainly right.   The words “and preparation” are simply otiose and we have never seen such words to be included in a costs order.   We also do not see any arguable basis for disturbing Mimmie Chan J’s exercise of case management discretion in dealing with the matter substantively on 25 June 2014 instead of referring the matter back to Deputy Judge Burrell for clarification. 

4.  We find it surprising that the plaintiff (and those advising him) deems fit to launch the present application when (i) there was nothing unclear in the costs order; (ii) Mimmie Chan J had made it crystal clear to the plaintiff what was the correct interpretation of the costs order; (iii) Mimmie Chan J gave a fully reasoned judgment on 2 September 2014 explaining at length (in our respectful view, correctly and adequately) why the intended appeal has no reasonable prospect of success; and (iv) in any event, the plaintiff would have the opportunity to canvass whatever concerns he has about the costs order in the appeal brought pursuant to leave granted on 11 September 2014.

5.  We shall dismiss the application with costs.

6.  Substantial costs and public resources (including valuable judicial resources) have been spent on this piece of unnecessary satellite application.  For the application before us only: solicitors for the defendant placed before us a statement of costs running up to $275,205; solicitors for the plaintiff presented to us a statement of costs running up to $206,504. At the court below, in respect of the unsuccessful application for leave before Mimmie Chan J, she ordered the plaintiff to pay the costs of the defendant in the sum of $70,000. On top of that, someone has to pay the plaintiff’s own costs for that application. The plaintiff was also ordered to pay the costs of the defendant in respect of the hearing of 25 June 2014, such costs have yet to be taxed. Apparently, the plaintiff (and/or those advising him) did not have adequate regard to the duty under Order 1A Rule 3 and somewhere along the line someone has lost the sense of proportionality.

7.  We note that the plaintiff is on legal aid. We are not told whether the plaintiff has been advised of the costs implications, including the legal aid charge that may be imposed on the monies he recovered from the defendant pursuant to the judgment of Deputy Judge Burrell.  In any event, we are concerned about the use of public fund in this manner and we may consider whether an order should be made under s.17(3) of the Legal Aid Ordinance or Order 62 Rule 7, 8 or 8A. We decide to hear submissions on the same.  We will draw this matter to the attention of the Director of Legal Aid and invite his submissions on costs of the present application as well. For those purposes, we asked parties to submit a set of draft agreed directions to facilitate that process by next Tuesday.

8.  We direct our clerk to send a copy of this judgment to the Director of Legal Aid.