LEE CHICK CHOI v. SOCIETY OF WINE EDUCATORS - HONG KONG CHAPTER AND ANOTHER

HCMP 2764/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2764 OF 2013

(ON AN INTENDED APPEAL FROM HCMP NO. 1203 OF 2013)

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Hon Macrae JA (giving the judgment of the court):

1.  This is an application by the plaintiff for leave to appeal against a costs order only made by Deputy High Court Judge Whitehead SC on 10 September 2013 against him after the judge made an order striking out the plaintiff’s Originating Summons on the grounds that it disclosed no reasonable cause of action and that the claim was both frivolous and vexatious and otherwise an abuse of process. Leave to appeal against the costs order was refused by the judge on 7 October 2013.

2.  The plaintiff relies on two main grounds in his Statement of reasons why leave should be granted: (1) that he would not have commenced his application for an injunction by way of Originating Summons had his correspondence with the 2^nd defendant not been ignored; and (2) that he had proposed mediation to the plaintiff at a call-over hearing which was refused by the defendants.

3.  We have considered the materials relied on by the plaintiff and his written submissions.

4.  Ground (1) is not borne out by the evidence filed in this case, which shows that the 2^nd defendant did indeed respond to the plaintiff’s emails and questions.  This ground has no reasonable prospect of success.

5.  As to ground (2), it is true that the plaintiff offered mediation at the call-over hearing on 12 July 2013 and the defendants by then preferred to have the summons to strike out heard first.  The judge considered all the materials and submissions relevant to this issue put before him both at the hearing on 10 September 2013 and at the leave application on 7 October 2013.  He came to the view that both parties had made some effort to bring about a mediation, which in the end came to nothing, so that the absence of mediation should not impact upon his decision on costs.

6.  A refusal by one party to take part in mediation is an important consideration in the exercise of discretion on the issue of costs.  However, the judge properly considered all the relevant materials and the factors relevant to the issue of costs including the issue of mediation. His finding that both parties including the defendants had taken steps in an attempt at mediation cannot be faulted, and the costs order he made was well within the proper exercise of his discretion in this matter, especially in the light of the fact that the Originating Summons was ordered to struck out as disclosing no reasonable cause of action and being frivolous, vexatious and otherwise an abuse of process.  There is no basis for interfering with the judge’s exercise of discretion at all.  This ground has no reasonable prospect of success either.

7.  By letter dated 9 December 2013 the plaintiff drew our attention to Points J to L of another letter of the same date addressed to the Chief Judge of the High Court in relation to another matter arising out of the dispute in this case, on which the plaintiff intends to rely. According to Points J to L, on 7 September 2013, the plaintiff’s wife lodged with the court a written submission for the purpose of the hearing on 10 September 2013.  After the hearing, the clerk to the judge wrote to the plaintiff on 31 October 2013, asking him to collect the bundle of materials lodged by his wife.  The plaintiff says that he was asked to collect the bundle because the judge had not considered his wife’s written submission.  The point which the plaintiff now wishes to make is that since the judge had not considered his wife’s written submission, a deduction or apportionment should have been made to the defendant’s costs as assessed by the judge.

8.  For the purpose of the present application, we would proceed on the basis that the judge did not in fact consider the written submission of the plaintiff’s wife.  However, that written submission and the materials included therewith were copied to the defendants’ solicitors and lodged with the court for the purpose of the hearing on 10 September 2013.  On the face of the documents, since they could have an impact on the result of the hearing, it therefore became necessary for the defendants’ solicitors to consider those documents, irrespective of whether the judge decided in the end to consider or rely on them.  There is no ground for making a deduction or apportionment to, or otherwise interfering with, the judge’s assessment of costs.

9.  Nor is there any reason in the interests of justice why the proposed appeal should be heard.

10.  This application for leave to appeal is hereby determined without a hearing on the basis of written submissions only under Order 59 Rule 2A(5).  For the reasons stated above, the application is dismissed.

11.  As the proposed appeal is entirely without merit, we hereby make an order under Order 59 Rule 2A(8) that no party may request the determination of this application to be reconsidered at an oral hearing inter partes under Order 59 Rule 2A(7).

12.  We make an order nisi that the plaintiff is to pay the defendants’ costs of this application, which we assess on a gross sum basis at $10,000.  Any party that is dissatisfied with the above costs order nisi may apply to this court to vary the order within 7 days of the handing down of this judgment.  The application must set out that party’s contention as to how the order nisi should be varied and the grounds thereof. The opposing party may serve his response within 7 days thereafter.

(Susan Kwan) Justice of Appeal

(Andrew Macrae) Justice of Appeal