LAM SIK YING v. LAM SIK SHI AND ANOTHER

HCA 4713/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 4713 OF 2001

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RULING ON COSTS

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1. In a written Decision handed down on 13 March 2013, I had refused the 1^st defendant’s application for striking out the plaintiff’s claim for delay/want of prosecution/abuse of process.

2. At the same time, I made a costs order nisi that the 1^st defendant do pay the plaintiff’s costs of the 1^st defendant’s application to strike out including the hearing thereof to be taxed and paid forthwith if not agreed (“the Costs Order”).

3. The 1^st defendant now seeks to vary the Costs Order to the effect that each party bears its own costs.

Basis of 1^st defendant’s application

4. The 1^st defendant accepts that although costs prima facie follow the event, the court does have a wide discretion on costs.

5. The 1^st defendant says that, since the coming into effect of the CJR, the principle that costs should normally follow the event is no longer the prescribed usual order but is only one of the factors to be taken into consideration by the court and that the court should have regard to the underlying objectives of the CJR such that the conduct of the parties and doing justice in all the circumstances of the case need also to be taken into account when making cost orders.

6. In the present case, the lengthy delays caused by the plaintiff were both inordinate and inexcusable.

7. The 1^st defendant relies on the following cases where the usual costs order were departed from –

(a)  H&M Hennes & Mauritz AB and anr v H&M GMBH Limited and anr (HCA 1946/2008);

(b)  Darache E Haughey and Joseph Kin Ching Lo v Lai Hong San and ors (HCCW 19/1998); and

(c)  China Nonferrous Metals (Hong Kong) Finance Co Ltd and anr v South-east Asia Investment Holding Co Ltd and anr (HCCL 20/2002)

8. It is said that quite apart from the dilatory conduct of the plaintiff and also due to it, the court had to take matters in its own hand by ordering a CMC to be fixed and it was at such CMC that the plaintiff first indicated his intention to re-commence the entire action by amending his Statement of Claim which would have necessitated further discovery and further witness statements.

9. The plaintiff’s last minute decision not to amend its case was a concession necessitated by the 1^st defendant’s application to strike out, and was a concession made only by the plaintiff’s counsel at the hearing of the striking out application.

10. Such was the conduct of the plaintiff which made the 1^st defendant’s application to strike out proper and necessary.

11. The costs order should therefore take into account that conduct of the plaintiff described above and on that basis, the 1^st defendant submits that the costs order should properly be that each party bears its own costs.

Decision

12. That there was some 5 years of delay in the prosecution of this matter cannot be denied.  It follows that such delay must be inordinate and inexcusable.

13. However, since the decision of the Court of Final Appeal in Wing Fai Construction Co Ltd v Yip Kwong Robert [2012] 1 HKLRD 589, it must be accepted that the only foundation for striking out for delay must be predicated on some abuse of the court’s process and mere delay is not sufficient for that purpose.

14. While the 1^st defendant was able to show delay, he fell down entirely when it came to showing abuse of court’s process, particularly where there are other actions commenced by the present1^st defendant against the present plaintiff and which are intrinsically linked with the same subject matter of their dispute here.  Those other actions started by the 1^st defendant are still ongoing and has not been tried as yet.

15. The inability of the 1^st defendant to show any abuse of court’s process also underlines the difference between the application by the 1^st defendant to strike out the claim of the plaintiff herein and a similar striking out application by the 2^nd defendant which was granted.

16. The decision by the CFA in the Wing Fai Construction case was given on 8 December 2011.  The striking out application by the 1^st defendant was dated 9 March 2012.  Accordingly there was sufficient time for those advising the 1^st defendant to appreciate and absorb the effect of the decision of the CFA in the Wing Fai case before launching the striking out application.

17. In my view, it is of the utmost importance for a litigant or those advising him to consider the strength of any interlocutory application before it is made.

18. To start such an application for striking out as the 1^st defendant did here without being in a position to show abuse of court’s process waste time and costs for all concerned.

19. Given the circumstances, I can see no good reason for me to depart from the rule that costs to follow the event.

20. The 1^st defendant’s application to vary the Costs Order is according refused and the Costs Order is to be made absolute.

Costs of this application to vary

21. The costs of this application to vary the Costs Order is to be part and parcel of the Costs Order hereby made absolute.