LHYC v. CCL

HCMP 747/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 747 OF 2015

(ON AN INTENDED APPEAL FROM FCMC NO. 14324 OF 2013)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  Though the application was made in Chinese, it was clear to us that the Petitioner at least has access to someone who has the ability to read and write English. One document included in her materials filed with the court is her submissions for her application for leave written in English prepared in her name. The judgment below is in English. Hence, we would give our judgment in English though we have read and fully considered her written materials in Chinese. However, if she needs assistance in interpretation, she could make an appointment through the clerk of Lam VP with the court interpreter for an oral interpretation of this decision at the court building.

2.  This is an application for leave to appeal against an order for costs made by Deputy District Judge G Chan [“the Judge”] in FCMC 14324/2013. The costs order was made on 28 November 2014 in respect of an application for discovery by a summons of 31 October 2014 taken out by the Petitioner in the context of her application for ancillary relief.  At that stage, both parties were legally represented.

3.  Though there had been some confusion as to the terms of the costs order, it was clarified at a hearing on 17 March 2015 that the order the Judge intended to make was costs of that summons be in the cause of the ancillary relief application.

4.  However, with respect to the Judge, we cannot leave it unsaid that she was in error in originally thinking that the term “costs reserved” meant “costs in the cause”.  Whatever may be the situation elsewhere, this is not the case in Hong Kong.

5.  That the Judge had fallen into that error can be seen at p20R-T and p21P of the Transcript.  It was repeated in her clerk’s letter dated 24 February 2015 which sets out her order on costs.

6.  It was that error which obviously caused confusion to the parties.  However it is clear from the Decision of 23 March 2015 that notwithstanding that error, the Judge had intended to order “costs in the cause”.

7.  The costs order was made by the Judge in light of the fact that when the matter came before her on a call-over appointment, amongst the 17 items of discovery, the Respondent agreed to answer 7 of them to save time whilst the solicitor for the Petitioner agreed to withdraw the rest.  Thus, the court made an order to that effect without hearing arguments as to the merit of the discovery application. 

8.  It is also necessary to explain the nature of that call-over hearing.  As can be gathered from the transcript of that hearing, it was a composite appointment dealing with various matters.  The summons of 31 October was only one of the items to be considered and there was not enough time for full arguments.  Solicitor for the Petitioner was not prepared to present full arguments, see transcript at p.10S.  The Judge had problems in understanding the Questionnaire as it was then put forward.  Further, the Judge was anxious that given the means of the parties, it would be disproportionate for the matter to be set down for full arguments.  After some discussions, the matter was resolved in the way it did. Also, solicitor for the Petitioner indicated that she would issue another questionnaire which would set out the relevant questions in a more intelligible manner, see p.16D to H of the transcript.  On 4 December 2014, an amended Questionnaire was filed.

9.  As shown in the transcript, in making the costs order she did, the Judge took account of the poor preparation of the matter by solicitor for the Petitioner and the unclear manner in which the some of the questions were framed, see p.21N to O.

10.  As mentioned, by this application the Petitioner seeks leave to appeal against a costs order made by the Judge in an interlocutory application.  The Petitioner sought leave before the Judge and the Judge refused leave on 23 March 2015 after hearing her and the solicitor for the Respondent on 17 March 2015.  The reasons for refusing leave were set out in her written decision of 23 March 2015.

11.  Costs order is always a matter of the discretion of the Judge.  There are stringent limits regarding appellate interference against an order for costs.  In the present case, notwithstanding the arguments of the Petitioner, we do not think the Judge erred in principle or took account of irrelevant matters or failed to take account of relevant matters in making the order for costs as she did.  Neither do we consider her order to be outside the reasonable range of options that a judge may make in the circumstances of the case.  The arguments of the Petitioner failed to have regard to what actually happened at the hearing of 28 November 2014 and did not take account of the unhelpful manner in which her solicitor presented the application before the Judge.

12.  We agree with the Judge that there is no reasonable prospect of success in the intended appeal.  Granting leave would only increase the liability for costs on the part of the Petitioner. The application for leave is dismissed.

13.  Further, we are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

14.  The Respondent did not lodge any written representation and we make no order as to costs in respect of this application.