SIR ELLY KADOORIE & SONS LTD (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS) v. SAMANTHA JANE BRADLEY

CACV 194/2023, [2024] HKCA 1070

On Appeal From [2023] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2023

(ON APPEAL FROM HCA NO 518 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 26 August 2024, this Court handed down a judgment (“the CA Judgment”) allowing the Plaintiff’s appeal against the order made by Deputy High Court Judge H Au-Yeung (as he then was) (“the Judge”) dated 31 May 2023 (“the Order”) dismissing the Plaintiff’s claim against the Defendant under Orders 14A, rule 1 and Order 18, rule 19(1)(a) of the Rules of the High Court, Cap 4A. This Court also made an order nisi (“the Order Nisi”) that there be no order as to the costs of the “First Summons”[1], including the hearing before the Judge on 7 March 2023, the “Amendment Summons”[2] and the appeal.

2.  This is the Plaintiff’s application, by summons dated 9 September 2024, seeking a variation of the Order Nisi such that all of the above costs be paid by the Defendant to the Plaintiff forthwith, to be summarily assessed if not agreed.

3.  In what follows, we shall continue to use the expressions and abbreviations as defined in the CA Judgment, unless the context indicates otherwise.

4.  The Court’s reasons for making the Order Nisi are set out at §78 of the CA Judgment:

“On the question of costs, a number of factors come into play, including (i) the Plaintiff has successfully resisted the Defendant’s objections to the Amendment Summons, (ii) the Plaintiff is successful in the appeal and in relation to the First Summons, but the success is largely based on the new Ground 3A which was not relied upon before the Judge, (iii) the Defendant has failed in respect of §2 of the Amended Respondent’s Notice, while the rest of the matters raised in the Amended Respondent’s Notice are remitted to the Judge for fresh determination, and (iv) the Defendant has improperly filed ‘Cross-Appellant’s Skeleton Arguments’ on 9 February 2024 (purportedly on the basis that her Amended Respondent’s Notice amounted to a ‘cross-appeal’) without leave of the Court. In all the circumstances, we consider that the fair order to make is that there be no order as to the costs of the First Summons, including the hearing before the Judge on 7 March 2023, the Amendment Summons and the appeal. We make an order nisi to this effect.”

5.  In support of the application to vary the Order Nisi, the Plaintiff relies on the fact that it successfully resisted the Defendant’s objection to the Amendment Summons and was successful in the appeal and in relation to the First Summons. The Plaintiff questions the Court’s view that its success was largely based on the new Ground 3A (namely, that it was entitled to seek a free-standing injunction against the Defendant to restrain her from continuing her acts of harassment levied at the Representees) because, according to the Plaintiff, it remains the position that the Defendant’s case is not suitable for strike out and the Plaintiff’s claim should not have been dismissed at first instance regardless of the Plaintiff’s claim for a free-standing injunction against the Defendant. The Plaintiff also relies on the underlying objectives referred to in Order 1A, rule 1. In particular, it is said that (i) since a successful applicant in a strike out application is (usually) awarded its costs of the proceedings (the presumption that costs follow the event), there should be symmetry in costs outcome such that a successful respondent in a strike out application should likewise be entitled to the costs of resisting the application, and (ii) an unsuccessful strike out applicant should be visited with a costs sanction to deter unmeritorious strike out applications.

6.  We are not persuaded by the Plaintiff’s submissions that its success in relation to the First Summons and the appeal was not largely based on the new Ground 3A. Although we took the view that the question of whether the Plaintiff could, in its own capacity, make a claim against the Defendant for harassment was not suitable for determination in a strike out application under Order 18, rule 19(1)(a), such view alone would not have entirely disposed of the First Summons because the Defendant also sought a final determination of that question under Order 14A, rule 1. As it was, we declined, in the exercise of our discretion, to determine this question of law under Order 14A for the reasons given at §68 of the CA Judgment. Nevertheless, it is clear that the Plaintiff’s argument that it was entitled to seek a free-standing injunction against the Defendant played an integral part in the Court’s decision to reject the First Summons and allow the Plaintiff’s appeal.

7.  We also do not accept the Plaintiff’s suggestion that there should be any rule that a plaintiff/respondent who has successfully resisted a strike out application should be entitled to the costs of the application, although the fact that a plaintiff/respondent has been successful in resisting a strike out application is undoubtedly a relevant consideration in deciding whether to award costs to the successful plaintiff/respondent. The court exercises a broad discretion on costs. It is not appropriate to lay down any rule which may fetter the court’s discretion on costs.

8.  In dealing with an application to vary a costs order nisi, the court considers the matter afresh. The applicant does not bear any burden to show that the court’s provisional views for making the costs order nisi are wrong or not justified. Having considered the matter afresh, we remain of the view that the fair order to make in the present case is that there should be no order as to the costs of the First Summons (including the hearing before the Judge on 7 March 2023), the Amendment Summons and the appeal for the reasons given at §78 of the CA Judgment. In so holding, we have taken an overall view of the proceedings before the Judge and in the Court of Appeal.

9.  For the above reasons, the Plaintiff’s summons dated 9 September 2024 is dismissed. The Order Nisi made by the Court at §78 of the CA Judgment is made absolute. The Defendant shall have the costs of the summons. The amount of costs claimed by the Defendant, in the sum of HK$29,696, is reasonable, and is allowed in full by way of summary assessment.