JUDITH RIPKA CREATIONS INC v. UNICORN LTD AND OTHERS

HCA403/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 403 OF 2004

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R U L I N G

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1. This is an application by the plaintiff by Summons dated 8 May 2007 seeking clarification as to the scope of the costs order given by me on 31 January 2005 and contained in a written Ruling on Costs giving reasons for same.  That costs order was formally sealed as an order on 5 November 2005 (“the Costs Order”). 

Background

2. Arising out of an Anton Pillar order obtained by the plaintiff ex parte from Barma J on 20 February 2004 against the defendants and which was executed at the office of the 1^st defendant on 23 February, a number of applications were taken out by summons, mostly by the defendants.  These applications were all interrelated and were heard by me together between 23 and 30 April 2004.  On 31 August 2004 I handed down a written ruling dealing with all the applications heard.  I made a costs order nisi in respect of these applications. 

3. Thereafter, the defendants applied for variation of the costs order nisi and the parties came before me on 14 January 2005.  After hearing submissions on costs, I gave a written Ruling on Costs on 31 January 2005.  In that written Ruling on Costs, full reasons were given for the Costs Order made therein.  That Costs Order was formally sealed as an order of the court on 5 November 2005. 

4. Pursuant to the Costs Order, the parties appeared before the Taxing Master on 24 April 2007 for taxation purpose.  On that day, the solicitor for the plaintiff applied to the Taxing Master for an adjournment of the taxation on the grounds that he was unable to undertake the taxation without the assistance of an approved law costs draftsman.  The Taxing Master, while refusing the full adjournment sought, granted the plaintiff’s solicitor time to prepare and stood the matter over to the following day, i.e. 25 April 2007. 

5. On the following day, 25 April, the plaintiff solicitor applied to the Taxing Master for an adjournment of the taxation, this time on the grounds that there were ambiguities in the Costs Order and that the plaintiff wished to bring the matter back before me for clarification of those ambiguities in the Costs Order. 

6. During that hearing, the Taxing Master indicated to the plaintiff’s solicitor on two different occasions that he did not think that there was any ambiguity in the Costs Order but finally acceded to an adjournment, when after the mid-morning adjournment, the case of Korner v. Korner & Co. Ltd [1951] Ch 10 was brought to his attention by the plaintiff’s solicitor.  The judgment in that case was to the effect that when difficulty arises on the interpretation of an order as to costs, great trouble and expense could be saved if either party were able to go back to the judge, even after the costs order had been drawn up. 

7. The Taxing Master granted the adjournment sought by the plaintiff’s solicitor after obtaining an undertaking by the plaintiff’s solicitor that they will definitely bring the matter of the Costs Order back to me for clarification. 

8. The above culminated in the plaintiff issuing the present Summons asking for clarification of the Costs Order. 

9. The parties came before me on 17 July 2007 on the hearing of the Summons for clarification.  The matter was adjourned on that occasion for the transcript of the hearings before the Taxing Master to be obtained as there were a number of disputes between the parties as to what had transpired before the Taxing Master. 

10. Upon that transcript being obtained, the parties came back before me on 24 August 2007 and once again the hearing had to be adjourned on the application of the defendant’s solicitor to enable him to file further affidavit to answer the plaintiff’s allegations contained in the plaintiff’s skeleton submission that the defendant’s solicitor had misled the court, also when counsel for the plaintiff indicated that he was not prepared to withdraw such allegations. 

11. The substantive hearing for clarification on the plaintiff’s Summons finally proceeded on 26 May 2008. 

Basis of plaintiff’s application for clarification

12. The basis of the plaintiff’s application for clarification is contained in paragraphs 8 and 9 of the skeleton submission of plaintiff’s counsel dated 13 July 2007 as follows :

“8.   It should usually be possible for the Taxing Master to know the Court’s intention in relation to costs simply by looking at the sealed Costs Order.

9.    In the present case, it is not possible to know for certain J’s intention in relation to costs simply by looking at the sealed Order [47-49] without reference to J’s Ruling on Costs handed down on 31^st January 2005 [41-45].  The problem is that the sealed Order makes no distinction between :  (i) those orders where there is ‘No order as to costs’ because this has already been dealt with in an earlier order in the Ruling on Costs; and (ii) those orders which say ‘No order as to costs’ and really mean ‘No order as to costs in relation to all parties’; and (iii) those orders that make no reference at all to D2, D3 and D4.  It is the P’s contention that the sealed Order does not accurately reflect J’s intention as expressed in the Ruling on Costs [9-10 Paras 6-9].”

13. Counsel for the plaintiff made it clear in submission that they were not seeking any amendment of the Costs Order, only clarification of it.  Indeed no draft amendments of same had been put before me.  However, it was suggested by counsel for the plaintiff that in clarifying the Costs Order, I could do so under the “slip rule”.  In so submitting he relied on the case of Memminger-IRO GmbH v. Trip-Lite Ltd (No.2) [1992] T L R 342 (9 July 1992). 

Stance taken by the Defendants

14. Ms Wong, who appeared for the 2^nd 3^rd and 4^th defendants (since the taxation concerned only these three defendants and the plaintiff) submits that as of 5 November 2005, upon the Costs Order being sealed, the Court is functus officio and has no power to alter or vary the Costs Order save under the slip rule which only applies to clerical mistakes or accidental slip or omission, but that is not the case here. 

15. As for the clarification sought the slip rule can have no application.  Moreover, no clarification is necessary since the written Ruling on Costs given on 31 January 2005 is already before the Taxing Master in which the reasons for the costs order made and the intention of the court in respect of the costs order has been made clear. 

16. The defendants say that the plaintiff’s application is entirely without merits and should be dismissed. 

Decision

17. Looking at paragraphs 8 and 9 of the skeleton submission of the plaintiff’s counsel referred to and cited above, it is abundantly clear to me that the plaintiff’s position is that when only the sealed Order alone is looked at, it is ambiguous because it does not contain the reasons and therefore the intention behind the costs orders made.  However, the plaintiff accepts that the reasons and therefore the intentions have been expressly stated in the written Ruling on Costs given on 31 January 2007. 

18. Indeed the entire application by the plaintiff is predicated on this narrow basis. 

19. In my view, that is a totally wrong basis for making this application for clarification since it is both correct and proper for the Taxing Master to have before him a copy of that written Ruling on Costs for him to see the reasons and therefore the intentions of the costs order made therein. 

20. To this extent the application for clarification is both misconceived and unnecessary. 

21. Neither can I see how the “slip rule” can avail the plaintiff in this case since no amendment to the Costs Order is sought by the plaintiff. 

22. The case of Memminger does not help the plaintiff either since in that case, the slip rule was properly invoked in order to amend the costs order there by deleting the word “forthwith” as the tape recording of the order made by the judge showed that the judge had not used the word “forthwith” when he made the order. 

23. Having heard submissions by counsel in the matter, I am in agreement with Ms Wong that no ambiguity exist and no clarification is necessary for the Costs Order made. 

24. It is unfortunate that the Taxing Master had allowed himself to be persuaded by the plaintiff’s solicitor to grant the adjournment for the purpose of clarification of the Costs Order, particularly when on the transcript, it does not appear that the alleged ambiguity had ever been spelled out to the Taxing Master by the plaintiff’s solicitor in the way that it had been put before me.  If that had been done, likely the Taxing Master would not have granted the adjournment for clarification since the written Ruling on Costs was in fact before the Taxing Master and which would have put paid to any such alleged ambiguity. 

25. Accordingly, for the reasons given, the application to clarify is dismissed. 

26. The only thing which this application to clarify has succeeded in achieving is to delay the taxation of the Costs Order for over one year.  It is high time for this matter to go back to the Taxing Master for the taxation on costs to be carried out with no further delay. 

Costs order nisi

27. Since the claim of the plaintiff against the 2^nd, 3^rd and 4^th defendants have already been struck out in the action, there will be a costs order nisi that the costs of this application be paid by the plaintiff to the 2^nd, 3^rd and 4^th defendants to be taxed if not agreed.