GPB v. WILLIAM LAM

HCAL 130/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 130 OF 2013

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DECISION ON COSTS
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A. INTRODUCTION

1.  This is the decision relating to the costs of this judicial review.

2.  Given the contentions raised, it is necessary and important to set out the background leading to these arguments on costs.

3.  The applicant is a torture claimant under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  His claim was dismissed firstly by the Director of Immigration (“the Director”) in September 2011.  He then petitioned for the reconsideration of his CAT claim.  The petition, which was filed way out of time in July 2012, was later also rejected by the adjudicator (the respondent) in August 2012.[1]  In rejecting the petition, the adjudicator did not offer an oral hearing to the applicant.

4.  On 2 September 2013, the applicant filed his Form 86, seeking leave to apply for judicial review challenging the adjudicator’s decisions.  In the Form 86, the Director and the Chief Executive (“the CE”) were named as the intended interested parties.

5.  On 11 November 2013, in relation to the leave application, Deputy High Court Judge Leung (“the Judge”) sought various clarifications from the applicant’s solicitors on the grounds of the proposed judicial review, and the applicant’s solicitors replied on 27 January 2014.

6.  On 11 July 2014, the Judge granted leave on paper. In the directions given, the Judge asked the parties to report on agreed directions for the conduct of the substantive hearing, failing which to fix a direction hearing before him.  The learned Judge also indicated in the Call-1 Form that, in relation to the ground based on the lack of an oral hearing, the parties might consider the then recent judgment of the Court of Appeal in ST v Betty Kwan[2] in relation to the principles relevant to such a ground.

7.  On 22 July 2014, the applicant served the Call-1 Form, the Originating Summons and the related papers on the respondent and the Director and CE as interested parties.

8.  On 8 August 2014, the applicant’s solicitors reported to the Judge that the applicant and the Director (as the 2^nd interested party) had agreed on the directions dealing with the substantive hearing of the judicial review.  The directions included the filing of evidence by the Director and the applicant and the fixing of a substantive hearing of the judicial review.  The respondent and the CE on the other hand had separately indicated that they would remain neutral to the judicial review and would not take part in it.[3]

9.  The Director and the applicant then went on to negotiate as to how to dispose of the judicial review by consent.  This is something I would look into more later.

10.  On 16 September 2014, the applicant and the Director filed with the court a draft consent order which provided that the adjudicator’s decisions not to afford the applicant an oral hearing and to dismiss the applicant’s petition be quashed, and that the applicant’s petition be remitted to the Torture Claims Appeal Board (“TCAB”) for determination by a member not being the respondent.  The draft consent order also provided that the parties shall file written submissions on the issue of costs.

11.  This court pronounced the consent order on 18 September 2014.  As provided in the consent order, the applicant and the Director subsequently filed their respective written submissions dealing with costs.

12.  In gist, the applicant seeks costs of the judicial review against the respondent and/or the Director.  The Director on the other hand asks for no order as to costs.  The respondent is contented not to make any submissions.

13.  This is now the decision on costs.

B. THE APPLICANT’S COSTS APPLICATION

14.  The applicant seeks costs against both the respondent and the Director.  I will look at his application against the respondent first.

B1. The application against the respondent

15.  After leave was granted to the applicant to apply for judicial review, the respondent soon indicated that he would remain neutral and abide by the court’s determination.  As observed by the Court of Appeal recently in Orrico v Municipal Services Appeals Board (unreported, CACV 5/2015, 16 July 2015, per Cheung CJHC, Lam VP, and Cheung JA)[4] at paragraphs 12 ‑ 13, this is consistent with the usual practice of a quasi-judicialtribunal to remain neutral in a judicial review seeking to challenge its decision.

16.  In Orrico, the Court of Appeal has also confirmed at paragraphs 17 ‑ 19 that the principles laid down in R (Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543 (“Davies”)at paragraph 47 per Brook LJ are equally applicable in Hong Kong to guide the exercise of discretion as to when the court may make a costs order against a neutral inferior court or tribunal.  In gist, the court’s established practice is to make no order as to costs against such tribunal, and would only consider doing so when “there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of proceedings”.

17.  Although finding it unnecessary to elaborate on the test of flagrant improper behaviour, the Court of Appeal has said that the criteria for meeting that are “stringent” and not even obvious blatant errors on the part of a tribunal will necessarily come within this test.  See Orrico, paragraphs 40 ‑ 42.

18.  As further explained in Orrico (upon reviewing a line of authorities) at paragraphs 23 ‑ 29, there are very good reasons underlying why it is generally advisable for a tribunal to adopt the usual practice of remaining neutral in order to maintain its impartiality. Thus, under such considerations, it would also not be right to impose an obligation on the tribunal to consider whether a consent summons should be signed (Orrico, paragraph 26).

19.  Bearing these principles in mind, in the present case, I can see no basis to say that the respondent committed flagrant improper behaviours.  Mr Kat SC for the applicant emphasised in his submissions that, given that the applicant was acting in person in his petition, the adjudicator’s error in not granting him an oral hearing amounted to a flagrant behaviour in disregarding the trite principles of fairness.  Further, leading counsel also submitted that the adjudicator’s errors of law in denying his own jurisdiction to extend time for the petition and in relation to the elements of the Convention test (as set out in the Form 86) also represented fundamental errors.  With respect to Mr Kat, these grounds raised in support of the judicial review, including the lack of an oral hearing, are mostly facts related or sensitive.  Even though the decisions cannot be supported under public law by reason of those grounds (given that it is now settled by consent), applying the stringent test, I cannot say in the present case that those errors committed by the respondent can be regarded as amounting to flagrantly improper behaviours.  As observed by the Court of Appeal in Orrico, even obvious blatant errors on the part of a tribunal generally will not necessarily come within this test (see paragraphs 40 - 42).  Further, the fact that the respondent had remained neutral and did not on his own volition positively or proactively consents to the application is also consistent with the general principles discussed above, which does not trigger the exercise of discretion to order costs against him.

20.  I therefore refuse the applicant’s application in seeking costs against the respondent.

B2. Application for costs against the Director

21.  The applicant’s basis for asking the Director to bear the costs is in gist a simple one.  He says the Director was in effect the active opponent resisting the judicial review before it was finally settled. As such, she should bear the costs as the effective losing party under the costs follow the event general principles.

22.  The applicant’s case that the Director had become the active opponent in this case is premised on the following:

(1) After being served with the Originating Summons and the papers in support of the judicial review as the interested party on 22 July 2014, the Director by 8 August 2014 agreed with the applicant on the directions for the filing of evidence in the judicial review as well as for the fixing of its substantive hearing.  As such, the Director must be regarded as intending to oppose the judicial review. Given the neutral stance adopted by the respondent and the CE, the Director was in fact the only real opponent to the judicial review.

(2) It was only by 16 September 2014 that the applicant and the Director filed a draft consent order with the court agreeing to have the under challenged decisions quashed.

(3) In the premises, the Director was the active party opposing the judicial review before it was settled.  She should bear the costs upon the judicial review being allowed albeit by consent.[5]

23.  The Director’s response is effectively that she had not actively participated in the proceedings in opposing it.  She had all along acted reasonably in seeking to resolve the matter without a substantive hearing and had taken no substantive steps in the proceedings.  In this respect, the Director emphasises that it is not her decision that was under challenge in the judicial review, and she was joined only as an interested party.

24.  These contentions require me to look at the events occurred between these contenders after the serving of the Originating Summons.  They are as follows:

(1) As mentioned above, on 7 August 2014, the applicant’s solicitors (D&A) wrote to all the parties, including the Director, asking them to agree on their proposed directions dealing with the conduct of the judicial review.

(2) On 8 August 2014, D&A reported to the court confirming that counsel for the Director had agreed to those proposed directions.  They therefore asked the court to make those agreed directions, noting that the respondent and the CE would usually take a neutral stance.

(3) On 19 August 2014 (ie, about 10 days after the agreed directions), the Department of Justice (“DOJ”) acting for the Director wrote to D&A proposing to dispose of the judicial review by consent in having the decisions quashed with no order as to costs.  DOJ also attached to this letter a draft letter to the respondent seeking his agreement to dispose of the matter by consent in the manner as proposed.

(4) D&A replied on 21 August 2014, asking the Director to bear the costs.  In this letter, they had however mistakenly stated that “…the [Director], who you proposed to join as a Respondent and who is conceding these proceedings, should be liable for costs”.

(5) DOJ immediately wrote to D&A on 22 August 2014, pointing out the mistake that the Director did not ask to be joined, but it was the applicant who had joined her as the interested party.  They also stated that it was not the Director’s decision that was under challenge in the judicial review. They therefore repeated the stance that the Director should not be liable for costs.

(6) After sending out a holding letter on 1 September 2014, D&A replied on 12 September 2014.  They fairly accepted the mistake as stated in the earlier letter and retracted that statement.  They however maintained the view that the Director should be liable for costs, but proposed to dispose of the judicial review by consent to (a) have the decisions quashed; (b) have the applicant’s petition remitted to a differently constituted TCAB for reconsideration; and (c) deal with costs by written submissions.

(7) DOJ then immediately on the same day wrote to the respondent asking for his agreement to dispose of the matter as proposed by D&A, attaching therewith the draft statement and draft consent order prepared pursuant to paragraph 23(1) of the Practice Directions SL-3.

(8) Eventually, D&A and DOJ jointly applied to the court on 16 September 2014 to endorse the draft consent order, which was pronounced by this court on 18 September 2014.

25.  Whether a party could be regarded as having taken active steps to defend an action must be viewed as a whole in the circumstances of each case.  It is usually a matter of degree and extent and it is relevant to assess under this question whether the party in question has taken any steps or actions that are of substance to defend the action.

26.  Viewed against the above events, I do not think the Director can be regarded as having actively taken steps to oppose the judicial review.  It is correct that when she was served with the judicial review, she agreed on 8 August 2014 the directions for the purpose of its hearing.  However, within a short period of time after agreeing those directions (about 10 days), she already proposed to the applicant effectively not to oppose the judicial review with no order as to costs.  Thus, other than agreeing on those directions, there was nothing that had been done by the Director in the proceedings that could be regarded as taking substantive steps to oppose the judicial review.  For myself, I do not regard the mere agreement on those directions alone and without more can be regarded as having taken a substantive step to oppose the judicial review in this case.  This is so as the Director had soon thereafter proposed to the applicant to dispose of the judicial review by consent to have the decisions quashed.

27.  Moreover, in the present case, no additional costs could be said to have been incurred by the applicant by reason of the Director’s agreement on those directions.  In relation to the costs of writing the letter proposing the directions to boththe respondent and the interested parties, it is worthy to note that, before proposing the directions to all the parties, the applicant had not sought to ask the parties (the respondent and the interested parties) whether they were prepared not to oppose the judicial review.  As such, the costs for writing this letter would have to be incurred in any event but not by reason of the Director’s act.  For example, even if, upon receiving this letter, the Director were then to immediately say that she was not going to oppose the judicial review, the costs of writing this letter would have still been incurred.

28.  Moreover, it was also necessary in any event for the applicant to make the leave application (with the drafting of the Form 86) given that he wished to challenge the decisions of the respondent.  This too has nothing to do with the Director, who was proposed by the applicant, albeit fairly and rightly so, to be joined only as an interested party should leave be given.

29.  For all these reasons, I do not think the Director can be regarded as having taken any active steps to oppose the judicial review in the circumstances of the present case.  I therefore do not think it would be fair and just in all the circumstances to require the Director to bear the costs of the judicial review.

C. THE APPLICANT’S RELIANCE ON THE AUTHORITY OF BOXALL

30.  Other than the above considerations, Mr Kat in his latest submissions seeks to support the applicant’s application by reference also to the authority of R (Boxall) v Waltham Forest LBC [2000] ALL ER (D) 2445 (“Boxall”).

31.  In Boxall, the English Court of Appeal laid down some guidelines as to the costs position following settlement. Scott Baker J set out the principles at paragraph 22 as follows:

“22. Having considered the authorities, the principles I deduced to be applicable are as follows:

(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) It will ordinarily be irrelevant that the Claimant is legally aided.

(iii)The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost.

(iv)At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) In the absence of a good reason to make any other order the fall back is to make no order as to costs.

(vi)The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.”

32.  Presumably, leading counsel is relying on Boxall to emphasise his contentions that the “winner” should get the costs even in settled cases, and that the applicant is the obvious winner in the present judicial review and he should thus get his costs.  Mr Kat further submits that as the Court of Appeal in Orrico was not referred to Boxall, the Orrico judgment does not therefore prevent this court from taking into account the Boxall principles in the present costs application.  Mr Kat also relies on a number of other cases[6] read together with Boxall as well as the fact that there is unfettered discretion on costs in relation to legally-added cases[7] to reinforce his submissions that the applicant as the eventual winner in the judicial review (albeit settled) should have his costs, whether or not he is legally aided.

33.  With respect, I do not think Boxall assists the applicant in the present case.  Boxall relates to cases where the parties have actively participated in the relevant proceedings, including situations where there are pre-action communications or correspondences.  Orrico (as well as Davies) however deals with cases on whether costs should be made against a party who has remained neutral in the proceedings.  The Boxall principles in my view are not intended to cover those cases.  It is pertinent to note that Davies itself (which is a case decided after Boxall) also did not refer to Boxall.

34.  Insofar as the applicant’s claim for costs against the Director is concerned, I have for the above reasons concluded that the Director had not actively participated in this judicial review.  As such, the Boxall principles (even read together with the other authorities) similarly would not assist the applicant.

D. CONCLUSION

35.  For the above reasons, I do not accept the applicant’s application to ask for costs against the respondent or the Director.  In my view, in all the circumstances of the present case, it is just and fair to make no order as to costs in the present case.

36.  In relation to the costs of this application, I of course note that it was originally the position of the Director (in the first draft consent order) that there should be no order as to costs.  However, I also have regard to the fact that in my above determination, the court takes into account the judgment in Orrico (which was not available at the time of the dispute on costs)and the fact (as pointed out by the Director in her written submissions at paragraph 31) that there appears to be no direct authority which holds that an interested party shall be held liable for costs in the circumstances like the present ones.  As such, I do not regard it that the applicant has acted unreasonably in contesting the Director’s original proposal for no order as to costs.  In the circumstances, I think it is just and fair to treat the costs of this application to be part of the costs of the judicial review, and thus there should also be no order as to costs.  I would further order that the applicant’s own costs be taxed in accordance with legal aid regulations.

37.  Lastly, I thank counsel’s assistance.