FARMAN v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 4463/2023

[2024] HKDC 1438

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4463 OF 2023

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DECISION

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INTRODUCTION

1.  This is an appeal of the defendant (“D”) against a master’s order dated 17 June 2024 which dismissed, inter alia, the parties’ joint application by way of the consent summons dated 20 December 2023 (“the Consent Summons”) for an order to give effect to their agreed terms of settlement of this action (“the Order”).

BACKGROUND

2.  This case is one of the hundreds of the asylum seekers’ alleged unlawful detention claims dealt with by this court since the judgment in Saeed v Secretary for Justice [2015] 1 HKLRD 1030 was handed down on 30 January 2015.

3.  In this action, the plaintiff (“P”) claims damages for the alleged unlawful detention under the Immigration Ordinance from 11 May 2020 to 7 June 2020 (28 days) and 9 June 2023 to 24 August 2023 (77 days). He issued a writ of summons in the District Court with a statement of claim (“SOC”) filed on 12 October 2023.

4.  At an early stage of this action, namely, before the filing of the defence by D, the parties were able to reach a full and final settlement of the claim at HK$48,000 (inclusive of interest but on a without admission of liability basis). Thus, they jointly applied for a consent order to be made in their agreed terms as set out in the Consent Summons. The Consent Summons was first heard before a master (“the Master”) on 15 January 2024[1] but was adjourned to 26 February 2024 for the parties to reach a settlement.

5.  The Master directed the parties to attempt to reach an agreement on the question of whether the costs of P can be recoverable in taxation based on the agreed “Small Claims Tribunal (“SCT”) scale” under §4 of the Consent Summons and further adjourned the matter to 17 June 2024. See Mok’s Affirmation (“Mok’s Aff”)[2] at §§2-6.

6.  As D was of the view that the question of whether the costs of P can be recoverable in taxation of costs at the SCT scale is a question of law, D asked the Master by way of a “referral summons” (“the Referral Summons”) to refer the question of law for determination by a judge in the District Court. In their view, it is wrong in principle to simply leave such question of law for agreement by the parties.

7.  At the adjourned hearing on 17 June 2024, the Master (i) dismissed the Consent Summons with no order as to costs; and (ii) dismissed the Referral Summons with costs to P.

8.  By a letter dated 27 June 2024, followed by the notice of appeal filed on 28 June 2024, D brought this appeal against the Order before this court.

Reasoning of the Master

9.  The Master did not make the order sought by the Consent Summons as he took the view that the parties had failed to reach any “consensus” regarding §4 thereof, namely, “the costs of this action be paid by (D) to (P) on a party and party basis at the Small Claims Tribunal scale, to be taxed if not agreed” (“the Costs Term”) and that the parties were divided on the question of whether the costs of P can be recoverable pursuant to the Costs Term. Nor did the Master make the order sought by the Referral Summons to refer the said question to a judge for determination. As a result, D says that the issue has hindered the parties’ intended settlement of the claim at HK$48,000.

Issues for the court to determine at the appeal

10.  In this appeal, D asks the court to provide further guidance following on Govindan Sakhivel v Secretary for Justice [2023] HKDC 1211 and Sundari v Secretary for Justice[2023] HKDC 1212 (both cases decided by this court on 30 August 2023 and reported in Hong Kong Law Reports and Digest respectively under [2023] 4 HKLRD 721 and [2023] 4 HKLRD 735) on the question of whether costs are recoverable in the assessment of costs at the scale of the SCT or at a level similar to actions begun in the SCT, and to:-

(a)  rule that no costs shall be allowed when costs are assessed at the SCT scale or at a level similar to actions begun in the SCT;

(b)  set aside the Order;

(c)  make an order in terms of the Consent Summons with the costs payable to P under the Costs Term fixed at HK$70[3]; and

(d)  award costs to D as sought in the notice of appeal, at §6.

11.  In accordance with the relevant practice directions, D has lodged its written submissions with the court on 31 July 2024.

12.  However, P has failed to lodge any written submissions. Instead, on the day before the hearing on 6 August 2024, P’s solicitors sent a letter to the court informing it that P’s stance is “neutral” towards D’s application “save as to costs”.

13.  Rather curiously, on the date of the hearing itself, P instructed Mr Tim Wong of counsel to attend the hearing with what Mr Wong called “limited instructions” for him to argue on the costs of the appeal only. P’s attempt to ask the court to read a short written submission accompanied with an authority was rejected by the court as it is not in the court’s practice to read any last minute submissions lodged minutes before the hearing. Further, the court took the view that it was pre-mature to hear the issue of costs on the appeal when it has not even heard the substantive arguments (let alone decide upon it) from D yet. While P had given up his rights to argue on the substantive issues by taking a so-called “neutral stance”, it is not open for them to just turn up at the appeal hearing and pick and choose what issues (whether confine to costs only or otherwise) they would like to address the court. It is in my view against both the due process of law (by not following the usual procedures and practice directions) and the natural course of justice (by not giving notice of their appearance and substance of their arguments to the court and to their opponent). Further, I consider it is inappropriate and wrong in principle for a counsel to accept instructions to appear before a court at the hearing for the substantive arguments with so-called “limited instructions” to argue on certain issues of their own choosing. P’s solicitors should not have instructed counsel to appear at the appeal hearing for such purpose. In my view, the issue of costs should be dealt with at the end of the argument on the substantive issues of the appeal which in such cases usually means after the written decision/ judgment is handed down and will be dealt with by way of paper disposal. Thus, I refused to hear Mr Wong at the hearing.

D’s Submissions

14.  The following is a summary of D’s submissions.

15.  P’s claim for damages had been settled without admission of liability. Before the court was the discrete issue arising from §4 of the Consent Summons ie the Costs Term, concerning the practical effect thereof in the assessment of costs at the agreed SCT scale. D says that P’s willingness[4] to settle at a sum which falls within the exclusive jurisdiction of the SCT (ie a low sum settlement) is a major factor weighed against him on the question of the applicable scale of costs. By applying Sundari, supra., at §§50-52, D’s submissions is that the low sum settlement should justify the court’s discretion to order that costs of P should be assessed at the SCT scale or at a level similar to actions begun in the SCT.

16.  In D’s submission, the expression of the SCT scale used in a costs award made in a District Court action should bear a two-fold meaning.

17.  First, it means that although the receiving party succeeds in his claim, he is not entitled to costs to be assessed at the District Court scale, having regard to the circumstances of the case, including the fact that since the amount likely to be recovered or awarded should fall within the exclusive jurisdiction of the SCT. In other words, the receiving party ought to have commenced the action in the SCT, but not the District Court.

18.  S 5 of the Small Claims Tribunal Ordinance, Cap 338 (“the SCTO”) expressly provides that no claim within the jurisdiction of the SCT shall be actionable in any other court in Hong Kong. See Govindan, supra., at §30, Sundari, supra., at §§32-33, 40-41 and 48.

19.  Ms Jess Chan (“Ms Chan”), Senior Assistant Law Officer (Civil Law) (Ag) of the Department of Justice (“DoJ”), who appeared for D at the appeal, further submitted the following authorities in support of D’s arguments:-

19.1  In Shine Ning Moda Ltd. and Biba Fashion Trading Co. Ltd. DCCJ 272/2006 (unreported, 14 July 2006) (the plaintiff was legally represented), judgment was entered for the plaintiff’s claim in its District Court action for a sum of HK$41,801.50 with interest, but the judge ordered that “the costs of this action be to the plaintiff, in the Small Claims Tribunal scale, to be taxed if not agreed”. The judge was of the view that the plaintiff did take out the action at a wrong venue, taking the plaintiff’s case to the highest, the plaintiff was only entitled to an amount under $50,000, the then exclusive jurisdictional limit of the SCT.

19.2  In The Incorporated Owners of Fu Tor Loy Sun Chuen-Stage 1 and Foeng Houw Liam Steven and Anor, DCMP 467/2014 (unreported, 24 February 2016) (the plaintiff was legally represented), the judge said “[a]lthough the IO succeeds in getting the Order for Payment, the total of the sums covered by the Order for Payment is only HK$8,110.00. That amount is well within the jurisdiction of the Small Claims Tribunal. If the IO is targeting this amount, the claim should be made in the Small Claims Tribunal and not in this court.” The judge ordered costs in favour of the IO “on a scale similar to that of the SCT” and assessed the costs at HK$1,000.

19.3  In M. Beraha v Ng Wai Lun, CACV 256/2003 (unreported, 18 June 2004), the Court of Appeal (“the CA”) upheld the trial judge’s conclusion that the action ought to have been instituted in the SCT, but not in the District Court and his costs assessment to represent the costs which the plaintiff would have been awarded “if the case had been brought in the SCT”. See also Kam Chi Fung and Glory Success Transportation Limited [2005] 4 HKLRD 293 citing M. Beraha (CA), where the judge took the view at §§11-12 thereof that the plaintiff’s solicitors should have come to the conclusion that the quantum for PSLA in the personal injuries claim likely to be awarded would fall within the jurisdiction of the SCT and ordered that the plaintiff was not entitled to costs of the action from the date of the filing of the claim in the District Court except such costs as would have been appropriate for a claim to be filed in the SCT.

19.4  In Cheung Yu Tin v Ho Hon Ka [2006] 2 HKLRD 674 , at §§46-48, the CA held that the judgment sum the plaintiff eventually obtained, which was within the jurisdiction of the SCT, was the best indication of the value of the claim and that the proper way of exercising the discretion was to award costs to be assessed “in a manner similar to the costs allowed in the SCT”.

20.  Ms Chan submits, and I entirely agree with her, that, as properly understood in context, all of the references, viz, the “SCT scale” used in Shine Ning Moda (as in the Consent Summons in this case), or “on a scale similar to that of the SCT” used in The IO of Fu Tor Loy Sun Chuen or “at a level similar to actions begun in the SCT” used in Sundari or “in a manner similar to the costs allowed in the SCT” in Cheung Yu Tin bear a clear and unambiguous meaning in light of the authorities cited that the claim should have been brought in the SCT, but not in the District Court, and the costs shall be assessed as if the same were assessed in the SCT.

21.  Second, D’s argument is that in the assessment of the costs as if the same were assessed in the SCT, legal costs are not allowed plainly because legal representation is prohibited in actions commenced in the SCT.

22.  S 19 of the SCTO prohibits legal representation, particularly s 19(2) provides as follows:-

“… no barrister or solicitor, including a barrister or solicitor who is a public officer whether or not qualified to practise in a court in Hong Kong, shall have a right of audience before the tribunal unless he is acting on his own behalf as a claimant or defendant.”

23.  Although “costs” is not expressly defined in s 24 of the SCTO which empowers the SCT to award to a party costs and expenses, having regard to the main purposes of the establishment of the SCT and its exclusive jurisdiction, and the statutory prohibition of legal representation in actions in the SCT, such costs shall not include legal costs of the party. See Hong Kong Civil Procedure 2024, at T1/24/1-2, 5 & 9-10.

24.  In M. Beraha, supra., the CA said at §33 that:-

“…one of the main purposes of establishing the Small Claims Tribunal and let litigants have resort to it is to let the parties resolve their disputes on matters within the monetary jurisdiction of the Tribunal without incurring the expenses of retaining legal services (which normally would involve a rather substantial amount) and at the same time would not have the effect of an unrepresented litigant having to fear the imbalance of power caused by a lawyer representing the other side while he himself does not have legal representation…”

25.  Hence, by Ms Chan submits, and I again totally agree with her, that the assessment of costs at the SCT scale is not a taxation exercise as that in the High Court (at the High Court scale) or in the District Court (at the District Court scale), and that a broad brush approach should be adopted. In Yung Mei Chun Jessi and Merrill Lynch (Asia Pacific) Ltd., HCLA 22/2011 (unreported, 11 January 2012), the Court of First Instance (“CFI”) of the High Court summarized the legal principles at §§60-63 for the assessment of costs pursuant to section 28(1) of the Labour Tribunal Ordinance, Cap 25, (“LTO”) which wording is very similar to section 24 of the SCTO, and ruled that generally a broad brush approach on costs should be adopted and the taxation procedure as in the High Court and District Court proceedings should not be followed.

DISCUSSION

26.  It is trite that the question of costs is always within the discretion of the court. As the CA pointed out in M. Beraha, supra., at §23, s 53 of the District Court Ordinance, Cap 336 (“DCO”) gives the court a very wide discretion as to costs. S 53(1) provides that:-

“The costs of and incidental to all proceedings in the Court, including the administration of estates and trusts, are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid.”

27.  The CA rejected the plaintiff’s argument in that case that the District Court did not have power to award costs on the SCT scale because O 62 r 2(4)[5] and r 9(4)(b)[6] of the Rules of the District Court, Cap 336H (“RDC”) do not expressly mention such a scale nor empower the judge to award costs on the SCT scale. The CA held that the judge had a wide discretion on costs and merely used that scale as the basis for assessing the costs and awarded a “gross sum” as a result, pursuant to O 62, r 3(2)[7] and r 9(4) of the RDC. The CA said at §27:-

“… The wording of O 62, r 3(2) is wide enough to give the Judge the discretion to make the costs order as he did. He is entitled to make any costs order, according to the circumstances of the case before him, which includes an order for costs. So long as the circumstances of the case justify, he can make no order as to costs (equivalent to ordering no costs), he can order a party to have a certain percentage of the costs (equivalent to part of the costs) and he can limit costs to be not more than a sum certain (which is within the ambit of “some other order” and may cover the whole or part of the costs), etc. Thus a judge may make an order for costs to be limited to a certain sum. In our judgment, O.62, r 3(2) gives the Judge a wide discretion. Insofar he exercises the discretion under this rule, he is fully entitled to make a gross sum costs order under O62, r 9(4)(b) in the exercise of his discretion to avoid delay or expense.” [emphasis added]

28.  In my judgment, the ruling in M. Beraha, supra. (which was cited by Kam Chi Fung, supra.), O 62 r 3(2) combined with O 62 r 9(4)(b), are wide enough to empower the District Court to order costs to be not more than a specified sum, or to be assessed on a basis similar to the scale applied in the SCT. In short, the costs assessed at “the SCT scale” in a District Court action should be the costs likely to be awarded as if the action were commenced in the SCT.

29.  The costs may include reasonable expenses necessarily incurred and any loss of wage suffered by the party, or any reasonable sum paid to a witness[8] for testifying in the case (see s 24 of the SCTO), but definitely not the legal costs paid by the party to a solicitor or a barrister. In Easy Property Ltd. and Choy Lo Ka [2006] 2 HKLRD 761, the CFI ruled that the SCT erred in calculating the party’s expenses by assessing the expenses according to a solicitors’ ordinary time costs qua a solicitor and that the expenses should be re-calculated based on the actual expenses and loss of salary of the solicitor who attended the hearing as the party’s witness, pursuant to s 24(1)(b) of the SCTO.

30.  The practical effect of the SCT scale in the assessment of costs can further be illustrated by the following authorities in that no legal costs incurred by the winning party can be recovered from the paying party.

31.  In M. Beraha, supra. at the District Court level, the judge took the view that the plaintiff could only recover $47,130 (which was within the SCT’s jurisdiction) and if the plaintiff had taken out the action in the SCT, he could have recovered the same amount. The judge went on to assess the costs at $1,000. The judge said:-

“Had the plaintiff initiated this action in the Tribunal, it would take four hearings to complete the trial in ordinary litigation. The Tribunal would generally award costs to the winning party at about $250 per hearing for transportation expenses and other related losses. I therefore award the plaintiff costs in the amount of $1,000…” (see M. Beraha, supra., at §5)

32.  At the CA level, the CA upheld the judge’s ruling on the question of costs at the SCT scale.

33.  In The IO of Fu Tor Loy Sun Chuen, supra., at §22, applying the SCT scale, the court summarily assessed the costs payable to the IO at HK$1,000.

34.  Thus, as can be seen from the above cited authorities, the various descriptions adopted by successive courts have one thing in common, namely, to give effect to the practical result that the party is only entitled to costs which it would able to recover as if the action was commenced in the SCT. The courts at different levels were not constrained by the slightly different wordings / labels / language used by the parties provided that their intention have been clearly expressed.

35.  In the very recent decision of Sri Purwati Muhasim v Secretary for Justice for and on behalf of Director of Immigration [2024] HKDC 1314; DCCJ 5953/2021 (HH Judge G. Chow; 12 August 2024), the learned judge was satisfied that she had a discretion to order costs of the proceedings to be in accordance with “the scale of the SCT” based on the reasons she has spelt out succinctly in §22 thereof:-

“22. In M Beraha & Co Ltd v Ng Wai Lun (unrep) CACV 256/2003, 18 June 2004, Woo VP (giving the reasons for judgment of the Court of Appeal) held that whilst there is no provision in the DCO giving express power to the District Court to order costs to be taxed on SCT scale, O 62, r 3(2) combined with O 62, r 9(4)(b) of RDC are wide enough to entitle the District Court to order costs to be not more than a specified sum, or to be assessed on a basis, for want of a more certain term, similar to the scale applied in the Small Claims Tribunal. Furthermore, the learned judge held that if one adopts a purposive approach to interpreting the RDC there would be even fuller justification for a District judge to have discretion to order costs to be in accordance with the scale of the SCT in an appropriate case. One of the main purposes of establishing the SCT and let litigants have resort to it is to let the parties resolve their disputes on matters within the monetary jurisdiction of the SCT without incurring the expense of retaining legal services (which normally would involve a rather substantial amount) and at the same time would not have the effect of an unrepresented litigant having to fear the imbalance of power caused by a lawyer representing the other side while he himself does not have legal representation. Moreover, given the limited right of appeal against decisions of the SCT, finality of litigation is thus more speedily achieved. (See §§33-34.)”

36.  I echo with what the learned judge has stated in the above decision for the principle that: how a court should exercise its discretion ultimately can be answered by the question of whether it was reasonable for a plaintiff to commence and persist in pursuing the action in the District Court. See also Cheung Yu Tin, §§26-33 (per Woo VP) §§46-48 (per Cheung JA); and M Beraha, supra. §35. Further, as HH Judge G Chow has aptly pointed out, when the court exercises its discretion of whether to allow the costs at the District Court scale or at a level similar to those recoverable at the SCT, the judge must give effect to the underlying objectives as required under O 62 r 5(1) and O 1A r 2(1) of RDC. See Sri Purwati Muhasim, supra. at §§25-29.

Findings of this court

37.  It is trite that an appeal from a master to a judge in chambers is by way of a hearing de novo and the judge treats the matter as though it comes before him for the first time. See §58/1/2 of Hong Kong Civil Procedure 2024, Vol 1 at 1233.

38.  While I can understand why the Master had rejected the term of the settlement on costs “at the Small Claims Tribunal scale”, to be taxed if not agreed” used by the parties in the Consent Summons based on the reason that it was not something recognized under the STCO itself, with greatest respect, it did not help the parties to resolve the dispute by consent. Further, whilst technically he might be correct, if one looks at the various authorities cited by D as summed up in Ms Chan’s submissions referred to in §19 above, it is clear that different descriptions had been used by different levels of courts over the years in Hong Kong when discussing about the costs / scale / level / manner recoverable at the SCT. They included Shine Ning Moda Ltd, supra.; Kam Chi Fung, supra., Easy Property Ltd, supra.; The Incoporated Owners of Fu Tor Loy sun Chuen – Stage 1, supra.; M. Berha, supra.; Cheung Yu Ti, supra.; Sundara, supra.; and Govindan, supra.

39.  Hence, with greatest respect, I do not agree with the Master’s narrow and technical approach to this matter as, in my view, one of the main aims of the court, as well as the parties, in a civil case is to try to promote and help to achieve the underlying objectives of the Civil Justice Reform (“CJR”). One of those objectives is to promote a sense of proportionality to the litigation by not encouraging a litigant or his lawyers to pursue a claim at a higher level of the court system and thus incurring unnecessary costs as a result.

40.  My judgments in Sundari and Govindan were written precisely with the above in mind. Being the portfolio holder of the asylum seekers’ alleged unlawful detention claims in the District Court since or about 2015 until very recently, I had come across dozens of cases during those years where the settlement sums reached by the parties did not go anywhere near to the minimum threshold of the lower jurisdiction limit of the District Court.[9] I had come across settlements for agreed damages in such cases as little as HK$8,000. Further, settlements for sums between HK$10,000 and HK$20,000 were not uncommon also. Yet, before the above 2 decisions were handed down and for a long period of time, the parties were very happy just to agree the costs of such small and insignificant claims settled by consent to be paid at the District Court scale.

41.  I found such practice not only against the underlying objectives of the CJR, but the costs (often over one hundred thousand dollars and sometimes a lot more) are totally disproportionate to the agreed settlement sums. Hence, for a period long before judgments in Sundari, supra. and Govindan, supra., were handed down in August 2023, I refused, as a matter of course, to endorse any consent summons where the parties had purportedly agreed costs to be paid at the District Court level. I would inevitably ask the plaintiff or his/her legal representatives to justify, why, when they were prepared to accept such low sums as settlement, they would consider it was reasonable for them to issue proceedings in the District Court in the first place and/or maintain it in the District court throughout. If the plaintiff or his/her solicitors cannot justify the above, then the court would usually order costs to be recoverable “at a level similar to those commenced at the SCT” or would be prepared to summarily assess the costs according to the particular circumstances of the case.

Assessment of costs at the SCT scale in this case

42.  In this case, when P’s solicitors signed the Consent Summons on 20 December 2023 with the DoJ (who was representing the defendant, namely, the Director of Immigration), they must be fully aware that D was only prepared to settle the case (i) on a without admission of liability basis at HK$48,000; and (ii) pay the costs of the action “at the Small Claims Tribunal scale”.

43.  In my judgment, while it was unfortunate that the parties would use the very loose terms of the costs of the action to be paid by the defendant to the plaintiff “on a party and party basis at the Small Claims Tribunal scale, to be taxed if not agreed”, when such scale or process of taxation do not, strictly speaking, exist at the SCT, the intention that P was prepared to accept costs at the SCT or at a level similar to costs recoverable as if the case was commenced at the SCT is beyond any shadow of doubt. In my view, instead of taking a narrow or pedantic view of the matter, the Master should, as far as possible, have given effect to the parties’ agreement.

44.  In this case, I have little doubt that P must have realized the damages they would eventually be able to recover from D at the end of the day would fall within the jurisdictional limits of the SCT rather than the District Court. In other words, he and his solicitors have impliedly accepted that the claim should have been commenced at the SCT. This is because at a very early stage of the proceedings and before the defence was even filed, they were prepared to sign the Consent Summons and accepted the costs to be paid by D at the SCT level. As such, I do not see how the plaintiff can now try to get out of that agreement just because his lawyers and the junior government counsel from the DoJ had used what I would call a rather “loose description” on the terms of the costs based on that recoverable at the SCT under the Consent Summons.

45.  Ms Chan asked the court to make a summary assessment of the costs of the action pursuant to the Costs Term at HK$70 only. According to her, this amount represents the filing fee of this claim had it been brought in the SCT, pursuant to the Schedule of Fees to the Small Claims Tribunal (Fees) Rules, Cap 338B.

46.  Ms Chan further submitted that as this claim was settled shortly after the commencement of the action and the court documents filed at the time of the settlement were minimal, viz. the writ of summons and the SOC filed on 12 October 2023 and the D’s time summons dated 23 November 2023. See Mok’s Aff at §§2-4. There was no court attendance of the plaintiff or any witness. D says that, save for the said HK$70 which represents the filing fee in the SCT, all other costs and expenses, if any, incurred by P should fall within the category of legal costs which should not be allowed in the assessment at the SCT “scale”.

47.  On the other hand, P’s solicitors alluded that they had received no reply from DoJ to their pre-action letter dated 23 September 2023 and referred to Practice Directions 18.1 (“PD 18.1”) for personal injuries cases as the importance for a defendant to respond to such letter. However, I agree with Ms Chan’s submission that the absence of a reply to their pre-action letter is irrelevant in the particular context of this case as it remained for P to decide under advice of his solicitors whether he should commence the claim in the SCT or in the District Court. Further, such pre-action letter is a simple letter without specifying the quantum of the claim (neither was it specified in the SOC). In any event, the absence of a reply from DoJ does not change the position that the SCT scale is applicable in this case P has eventually accepted the low settlement sum and instructed his solicitors to sign the Consent Summons. Moreover, in my view, PD 18.1 is not applicable in this case as this case has been issued under the general civil jurisdiction of the District Court and not under the personal injuries action and therefore subject to its pre-action protocol. In addition, DoJ had initiated settlement negotiations shortly after the commencement of the action for the purpose of saving costs. Hence, in my judgment, it lies ill in the mouth of P to say that they should now be entitled to costs at the District Court scale just because DoJ had failed to respond to the pre-action letter.

48.  Further, in my judgment, it was unreasonable for P’s solicitors (without giving any valid reasons as they had failed to lodge any written submissions or made any representations for the substantive issues at the hearing) not to agree to jointly apply for an early referral to a Judge for the determination of the costs dispute. See DoJ’s letter dated 13 March 2024 and Messrs Y W Mok & Co’s letter dated 26 March 2024.

49.  P’s solicitors did not reply to the DoJ’s alterative proposal of a joint application for a consent order for the main settlement terms leaving the question of the applicable scale of costs in this case to be determined by a District Judge. See DoJ’s letter dated 21 March 2024 with enclosure of the revised draft joint letter.

50.  In my view, had this matter been referred to a judge at an earlier juncture (particularly the judge in charge of the portfolio), instead of an appeal from the Master, costs could have been saved. See the CFI’s reminder in Hong Kong Polytechnic University and Others and Next Magazine Publishing Ltd. and Anor [1996] 2 HKLR 260.

CONCLUSION

51.  In conclusion, I find myself in the unfortunate position that I do not agree with the Master’s decision on both the Consent Summons and the Referral Summons. I therefore would allow D’s appeal and set aside the Order made by the Master in the Consent Summons and the order he made under the Referral Summons.

52.  I would further make the order sought by D in the notice of appeal at §§1-5 with the costs to be paid by D to P under the Consent Summons at a similar level as if the action was commenced at the SCT. I would summarily assess those costs at HK$500.[10]

53.  For the costs of and occasioned by the appeal, including the costs for the Consent Summons, the Referral Summons; the hearings before the Master on 15 January 2024, 26 February 2024; and the hearing before me and 17 June 2024, they should follow the event of this appeal. D should be entitled to those costs.

54.  I will therefore make an order nisi that P should bear the above costs pertaining to the appeal and such costs will be summarily assessed by the court by way of paper disposal. Should the parties wish to vary the costs order nisi, they should apply to do so by summons within 14 days after this decision is handed down. Otherwise, the costs will be summarily assessed by this court in accordance with the statement of costs submitted by the DoJ prior to the appeal hearing. However, the plaintiff will be given a chance to lodge his list of objections, if any, to that statement of costs within 14 days after the court has the chance to hear (and to decide upon) any application to vary the order nisi.

55.  Lastly, I wish to thank Ms Chan and her teram of colleagues at the DoJ for their very helpful submissions.