DESIGNING HONG KONG LTD v. THE TOWN PLANNING BOARD

HCAL 49/2014

[2020] HKCFI 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 49 OF 2014

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DECISION ON COSTS

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1.  This is an application by Ms Ho Loy to vary the costs order nisi I made on 12 February 2019.  This decision should be read together with the Joinder Decision (as defined at [2] below) and, unless otherwise stated, adopts the abbreviations used in the Joinder Decision.

2.  The matter arises in the following way.

3.  On 30 November 2018, this court handed down its decision (“the Joinder Decision”) refusing Ms Ho’s summons to join as an applicant in this judicial review proceedings with costs.  Ms Ho was then legally aided for the joinder application.

4.  By a summons dated 14 December 2018 (“the Leave to Appeal Summons”), Ms Ho sought leave from this court to appeal the Joinder Decision to the Court of Appeal.

5.  By way of its letter dated 8 January 2018, after refusing Ms Ho’s application for an interim stay of the Joinder Decision, the court directed the TPB to file its written statement in opposition of the Leave to Appeal Summons by 8 February 2019.

6.  As the events transpired, on 22 January 2019 Ms Ho’s legal aid application was refused, and on 4 February 2019, Ms Ho was informed by TPB’s letter the decision (“the CEIC Decision”) of the Chief Executive in Council (“CEIC”) made on 22 January 2019 to approve the Draft OZP.

7.  After seeking legal advice, on 8 February 2019, Ms Ho issued a summons to apply to withdraw her Leave to Appeal Summons.  This was so since, as a matter of law, the CEIC’s Decision has rendered the judicial review academic in seeking to challenge the TPB’s decision relating to the Draft OZP.

8.  On 12 February 2019, this court granted the application to withdraw the Leave to Appeal Summons and made an order nisi that Ms Ho should bear the costs of the Leave to Appeal Summons, to be taxed if not agreed.

9.  This is Ms Ho’s application[1] to vary the costs order nisi to the extent that there should be no order as to costs.  I have directed that the application be disposed of on paper and the parties have duly lodged their written submissions[2].

10.  This is my decision on the costs variation application.

11.  Ms Ho’s principal submissions in support of the contention that there should be no order as to costs are these:

(1)  Ms Ho’s joinder application is effectively one that falls within a public interest litigation[3]. She seeks to continue to pursue the judicial review which has an important public interest in it.  She also would not have any personal gain from the litigation itself.  In that respect, the Leave to Appeal Summons is only part and parcel of her effort to seek to continue the public interest litigation. In the premises, there should be no order as to costs even though she has to withdraw the Leave to Appeal Summons.

(2)  Further, for saving costs and time, Ms Ho has acted promptly and responsibly to withdraw the Leave to Appeal Summons once she was notified by the TPB about the CEIC’s Decision.

(3)  In this respect, the TPB should have informed Ms Ho earlier about its submission of the Draft OZP to the CEIC for approval to save costs and time.  However, the TPB did not do so.

(4)  Finally, Ms Ho is without means and thus unable to satisfy any costs order made.  The costs order therefore will not serve any useful purpose and thus should not be made.

12.  In opposition, Mr Jenkin Suen for the TPB in essence submits as follows:

(1)  The public interest litigation argument is groundless as her Leave to Appeal Summons is without any merit.  This is so as the refusal of joinder is an exercise of the court’s discretion.  The court of appeal will only interfere that exercise if it can be shown that the decision is wrong in principle or plainly wrong.

(2)  However, this court effectively refused the joinder on the basis that Ms Ho’s inexcusable lengthy delay in seeking to join in this judicial review outweighed any public interest in the proceedings.  It is clear that that decision did not commit any error in principle nor is it plainly wrong.  The Leave to Appeal Summons thus had no merits at all.  The question of public interest litigation is therefore not even engaged.

(3)  Further, as a matter of principle, impecuniosity cannot be an excuse to deprive a successful respondent of a costs order in its favour.  The recoverability of costs order is never a relevant consideration of the court in making (or not making) a costs order.  To the contrary, compensatory costs have long served to give litigants pause for thought before embarking on ill-conceived or unmeritorious litigation.

(4)  Finally, Ms Ho herself should have known that the TPB would submit the Draft OZP to the CEIC for approval.  This is particularly so after her interim stay application was refused by the court.

13.  With respect to Mr Suen, I am persuaded that the costs order nisi should be varied.  My reasons are as follows.

14.  First, costs is always a matter of wide discretion of the court to be exercised in accordance with principles.  The general principles are that, as a starting position, costs should follow the event. While departures from the general rule will be approached with due circumspection, the court in the post-CJR era is more readily prepared to depart from the general rule after taking into account all relevant factors to arrive at a fair and just costs order in the circumstances of each case.  Such departures also do not necessarily require showing that the failed grounds were raised unreasonably or improperly[4].

15.  In particular, under Order 62, rule 5 of the Rules of the High Court, the court should have regard to the circumstances set out therein and the underlying objectives of the CJR as set out in Order 1A, rule 1 of the Rules of the High Court.  Relevant for the present purpose, the court should take into account:

(1)  The underlying objectives to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings and to ensure fairness between the parties (under Order 1A, rules 1(c) and (d)); and

(2)  The conduct of the parties, including the manner in which a party has pursued or defended his case or a particular allegation or issue (under Order 62, rules 5(1)(e) and (2)(b)).

16.  For considering costs relating to the Leave to Appeal Summons, in my view, the following conduct of the parties is relevant.

17.  It is well established that the approval of the Draft OZP by the CEIC will render the present judicial review proceedings academic[5].  On the other hand, it is only within the TPB’s own knowledge as to whether and when the Draft OZP had in fact been submitted for approval.  In the premises, it would only be fair and reasonable for the TPB to inform Ms Ho promptly that it had submitted the Draft OZP to the CEIC for approval so as to enable Ms Ho to consider whether to withdraw the Leave to Appeal Summons at an earlier stage so as to save costs and time.  The fact that Ms Ho was only informed of the CEIC’s Decision on 4 February 2019 has therefore contributed to the fact that the TPB had to incur costs for preparing the written statement in opposing the Leave to Appeal Summons[6]. On the other hand, I accept that Ms Ho had acted promptly and reasonably by applying to withdraw the Leave to Appeal Summons on 8 February 2019, ie, four days after receiving the TPB’s letter notifying her of the CEIC’s Decision.

18.  Second, the Leave to Appeal Summons has not been determined substantively and Ms Ho has withdrawn it only on the basis that the underlying judicial review has become academic because of the subsequent CEIC Decision.  In the premises, notwithstanding Mr Suen’s above submissions, adopting a broad approach and without entering into an overly detailed forensic analysis[7], I would not say at this stage that the Leave to Appeal Summons is so hopeless that it is bound to fail.

19.  Having regard to the above, and taking the matter in the round, I agree that a fair and just costs order for the Leave to Appeal Summons should be no order as to costs.

20.  I must however mention two more things:

(1)  In coming to this conclusion, I have not taken into consideration Ms Ho’s impecuniosity as I agree with Mr Suen that this is an irrelevant factor.

(2)  I am also not convinced by Ms Ho’s public interest litigation submission.  In the Joinder Decision, I have made a costs order against Ms Ho to bear the costs upon dismissing her joinder application. There is no reason why the Leave to Appeal Summons, which seeks leave to appeal against the Joinder Decision, should by itself attract no order as to costs on the basis of public interest litigation had it failed on merits.

21.  For the above reasons, I will vary the costs order nisi to that there be no order as to costs of the Leave to Appeal Summons.  As to the costs of this variation application, I will order that it should be in the cause of the Leave to Appeal Summons, meaning that there should also be no order as to costs.