JIM YIU MING v. CONSENT COMMITTEE OF LAW SOCIETY OF HONG KONG

HCAL 207/2022

[2022] HKCFI 2580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 207 OF 2022

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COSTS  RULING

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A.  Introduction

1.  These proceedings were commenced by Form 86 dated 14 April 2022, by which the Applicant (“Mr Jim”) indicated the intention to challenge the 25 February 2022 decision of the Consents Committee of the Putative Respondent (“Law Society”), refusing consent for Mr Jim to practice as a full-time legal consultant in Siu & Company (“Firm”) and for Mr Siu to be the supervising solicitor of the Applicant.

2.  The Form 86 was supported by the affirmation of Mr Jim, with various exhibits.

3.  On 19 April 2022, I gave case management directions for a rolled-up hearing, which I preliminarily fixed for 25 July 2022. I directed Mr Jim to serve the papers on the Law Society on or before 25 April 2022, and gave leave for the Law Society to file and serve evidence in opposition on or before 2 June 2022, and for Mr Jim to file and serve evidence in reply, if any, on or before 24 June 2022. Amongst the other directions, I also gave liberty to apply.

4.  By letter wrongly dated 24 March 2022 – obviously a typographical error – so actually dated 24 May 2022, Mr Jim applied to withdraw his application for judicial review and to vacate the hearing on 25 July 2022. He asked that the withdrawal be permitted with no order as to costs.

5.  By letter dated 27 May 2022, solicitors for the Law Society wrote to oppose Mr Jim’s proposed ‘no costs’ order, and argued as to why the Law Society invited the court to make an order that Mr Jim shall pay the costs of the Law Society up until the date of the order to be made.

6.  By letter dated 1 June 2022, Mr Jim replied and argued why he should be granted leave to withdraw his application for judicial review with no order as to costs.

7.  On 6 June 2022, I granted leave to withdraw the application for leave to apply for judicial review, and directed the question of costs to be dealt with on paper in light of the exchange of correspondence which would be taken as the parties’ written submissions.

8.  Having considered those submissions, this is my Costs Ruling.

B.  The Argument

9.  The argument put forward by the solicitors for the Law Society can be summarised as follows:

(1)  Whilst, as a general rule, no costs will be ordered against an applicant who fails on an application for leave to apply for judicial review, the Court may exercise its discretion to make a costs order against the applicant where there are good reasons or unusual circumstances.

(2)  Such good reasons or circumstances might include where the leave application was clearly unnecessary in light of an alternative remedy regarding the subject of the application.

(3)  Although Mr Jim had ample time to reconsider his position, his application to withdraw was made late, being 40 days after filing the Form 86 and 30 days after the Court’s directions.

(4)  The Court’s directions were for a rolled-up hearing and for the filing of evidence, with the deadline for the Law Society of 2 June 2022. Solicitors had therefore been engaged to advise and commence preparation of necessary court documents including the affirmation in opposition. That preparation was well advanced. Hence, significant costs have been incurred, but are in effect wasted.

(5)  Mr Jim had failed to exhaust alternative remedies available to him, including the review procedure provided by the Law Society for an applicant dissatisfied with a decision of the Consents Committee.

(6)  That was so, notwithstanding that Mr Jim has been aware since at least August 2020 that he needed to exhaust any alternative remedies available to him before embarking on an application for judicial review (from the circumstances of an occasion when Mr Siu had received an objection to his previous application for the employment of Mr Jim by the Firm).

(7)  Mr Jim’s application for leave to apply for judicial review was fundamentally misconceived. The declaratory relief sought could not have been granted by the Court, and any proper claimed relief to refer the matter back for reconsideration would have led to the same conclusion.

(8)  Further, the proper putative respondent would have been the Law Society, not the Consents Committee.

(9)  Mr Jim’s application was also an abuse. It was not made out of a sense of grievance about the decision of the Consents Committee, nor the way the decision was arrived at, but in a clumsy attempt to coerce the Law Society into approving his application for employment using the threat of these proceedings as attempted leverage. This is not the first occasion that such an attempt has been made.

(10)  Mr Jim is a solicitor who is familiar with the procedures adopted by the Law Society in considering applications for consent, and his right to a review of any decision by the Consents Committee. Mr Jim is also familiar with the law and procedure for judicial review.

10.  All those matters, it is submitted, should lead to the costs order proposed by the Law Society.

11.  Mr Jim’s response and argument is first to point to the chronology of what he says are the relevant events, starting in February 2021 and (mainly) relating to the attempts by the Firm to employ Mr Jim under the supervision of Mr Siu. I do not think for present purposes I need to rehearse the full chronology, but can make reference to a suggested change of circumstances which was notified to the Law Society in October and December 2021. There followed a decision of the Standing Committee dated 14 January 2022 that the review application dated 14 May 2021 (pre-dating the suggested change of circumstances) had been concluded and the matter was closed. There then followed the further application by the Firm to the Consents Committee on 20 January 2022, which was resolved by the decision of 25 February 2022, notified on 11 March 2022. That is the decision originally sought to be challenged in the Form 86.

12.  Mr Jim submits (using his choice of committee names, etc) that:

(1)  According to what happened from October and December 2021 onwards, the Standing Committee should have knowledge of the change of circumstances, but the Standing Committee regarded the review application as concluded and closed.

(2)  The Standing Committee might have made a mistake due to the pandemic, or because the members did not take the review application seriously.

(3)  It has not been their concern, but it is Mr Jim’s concern to earn a living. Yet, whilst the Law Society had issued practising certificates (albeit with conditions) for 2019, 2020, 2021 and 2022, the Council has not approved the Firm’s employment of him.

(4)  The Council had however approved the Firm’s employment of another person, but were treating Mr Jim differently.

(5)  The solicitors for the Law Society now admit that the Consents Committee would still reach the same decision even if the matters remitted to them on an order of certiorari.

(6)  Mr Jim is entitled to freedom of choice of occupation under Article 33 of the Basic Law, so should be entitled to choose which law firm to work for, and the Law Society should reasonably approve the solicitors firm and employing him. The Law Society are just trying to interfere with the choice of occupation.

(7)  The allegation that Mr Jim’s application is a flagrant abuse of procedure is unjustified and unfair.

(8)  It is also unfair to suggest that the application was a threat to the Law Society for not conceding to his demands.

(9)  In any event, as Mr Siu has applied for further review by the Committee, it was sensible to apply for withdrawal of the application for judicial review to save time and costs.

(10)  The request for withdrawal was made on 24 May 2022, and solicitors for the Law Society only filed the Notice to Act on 26 May 2022, a day before writing to seek costs on the indemnity basis (though I think the reference to indemnity basis must be a mistake, as that has not been requested by the Law Society).

13.  Mr Jim submits the appropriate order is, therefore, a no order as to costs.

C.  Decision on Costs

14.  First, I would make clear that the merits of the Law Society’s approval or rejection of the proposed employment of Mr Jim by the Firm is irrelevant to the question of costs. I make no comment on those merits, which are for the relevant committee or body of the Law Society to consider and determine. Insofar as Mr Jim’s present arguments relate to those merits, I have ignored them.

15.  Secondly, I do not think it necessary to consider whether Mr Jim’s filing of these proceedings was intended to be a threat, or was otherwise an abuse. It seems to me that the decision on costs can appropriately be made without delving into that particular area. Put another way, any doubt about the bona fides of these proceedings would either be irrelevant or be taken in favour of Mr Jim.

16.  Thirdly, I agree that Mr Jim must be taken to have relevant knowledge both as to the internal procedures of the Law Society in the material respect, and as to the rules relating to the bringing of proposed challenges by way of judicial review proceedings.

17.  Therefore, the straightforward answer to the decision on costs seems to me to be identified by the fact that there was an alternative remedy which could be pursued, and which is now being pursued, and which (for all practical purposes) Mr Jim recognises renders the continuation of these proceedings inappropriate. But the reality is that they were inappropriate from inception, for the same reason.

18.  Further, if there had been any doubt about whether there was a potential alternative remedy, that could easily have been explored by Mr Jim with the Law Society and resolved prior to his commencing these proceedings, some month or so after he received notification of the relevant adverse decision.

19.  Further, Mr Jim must be taken to have known – at least since 19 April 2022, when I gave directions for a relatively tight timetable for the filing of evidence to bring this matter to a rolled-up hearing, involving both the questions of leave to apply for judicial review and the presumed substantive hearing of the application for judicial review – that the Law Society was likely to have to engage in considering and preparing for any opposition to the application, which would incur costs. The notification of Mr Jim’s intention to withdraw the judicial review proceedings was given only one week or so before the deadline for the Law Society to file its evidence. I do not think the date when the solicitors formally came on the record for the Law Society changes the analysis.

20.  I also note, and take into account to the extent that seems to me appropriate in the exercise of my discretion as to costs, that the grounds on which relief is sought in the Form 86 are mainly critical of the weight given by the Consents Committee to various aspects of the matters under its consideration (which is not usually fertile ground for judicial review) – though I also acknowledge that certain grounds might be an assertion of some form of procedural impropriety or Wednesbury unreasonableness.

21.  But, fundamentally, as already identified above, the commencement of these proceedings was inappropriate and unnecessary in light of the review procedure which provided an alternative remedy to Mr Jim. His commencement of the proceedings, and the failure to seek withdrawal of them before the Law Society must in practice have incurred legal costs in meeting them, seems to me to make him properly liable for those costs.

22.  To put it another way, in the exercise of my discretion on costs, I think there are good grounds for departing from the more usual situation that the dismissal or withdrawal of an ex parte application for leave to apply for judicial review would lead to no order for costs.

D.  Result

23.  By my order of 6 June 2022, I gave leave to Mr Jim to withdraw the application for leave to apply for judicial review.

24.  I now order that Mr Jim is to pay the Law Society’s costs of and occasioned by these proceedings, up to and including its solicitors’ letter dated 27 May 2022.

25.  For the avoidance of doubt, those costs are payable on the party and party basis, to be taxed if not agreed.