TELEVISION BROADCASTS LTD v. COMMUNICATIONS AUTHORITY AND ANOTHER

HCAL 3/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3 OF 2013

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JUDGMENT ON COSTS

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1. On 13 May 2013, I handed down judgment (“the Judgment”) dismissing TVB’s application for leave to apply for judicial review. I made an order nisi that there be no order as to costs.

2. Before me are the respective applications by the Communications Authority and the CEIC to vary the costs order nisi, asking for their costs.

3. For convenience, I would adopt the abbreviations used in the Judgment.

Principles

4. The principles governing whether costs should be awarded to a putative respondent in an unsuccessful leave application are now well settled.  They could be briefly summarised as follows.

5. The court would only award costs against an unsuccessful applicant for leave where there are unusual or exceptional circumstances to justify to do so.  Unusual circumstances are those that the court finds that there are “good reasons” to order costs, as opposed to the usual case of no order as to costs in an unsuccessful leave application: Sky Wide Development [2011] 5 HKRD 202 (CA) at paragraphs 28 and 31 per Tang VP (as he then was); Re Ho Chung Yan Albert (HCAL 84/2012, 28 September 12), at paragraph 26 per Lam J (as he then was); Lister Assets v The Chief Executive in Council (CACV 172/2012, 25 Apr 13, Fok, Barma JJA, McWalters J) at paragraph 48.

6. In considering whether there are good reasons or unusual circumstances to justify awarding costs against an unsuccessful applicant for leave, the court takes into account of various factors.  The non-exhaustive list includes:

(1)   The “hopelessness” of the application, in particular, in situation where the applicant should have been aware of that: R (Mount Cook Land Ltd) v Westminister City Council [2003] EWCA Civ 1346 at paragraph 76(5)(a) as adopted by Lam J in Re Ho Mei Ling (No 2) [2012] 1 HKC 400 at paragraph 25; Leung Kwok Hung v The President of the Legislative Council [2013] 2 HKC 580 (CA), at paragraph 81 per Cheung CJHC; Leung Chun Ying v Ho Chun Yan Albert (FAMV 34/2012, 10 Jan 13, Ma CJ, Ribeiro and Tang PPJ), paragraphs 4-7 (referring with approval of Chan Noi Heung v the Chief Executive in Council [2009] 3 HKLRD at paragraph 9); Sky Wide, supra, paragraph 31.

(2)   Whether the applicant has sought to pursue the judicial review to advance principally his own interest or in the interest of the public: Leung Kwok Hung, supra, at paragraph 82; Re Ho Mei Ling (No2), supra, at paragraph 28(f).

(3)   Whether the unsuccessful applicant has substantial resources which it has used to pursue the unfounded claim and which are available to meet the costs: R (Mount Cook Land Ltd), supra, at paragraph 76(5); Ho Mei Ling (No 2), supra, at paragraph 25 (pp 408-9).

(4)   Whether the putative parties attended the leave hearing only upon the court’s invitation or direction, provided helpful assistance and refrained from conducting themselves in an unreasonable manner that would lead to increase in costs: Sky Wide, supra, at paragraph 31; Re Ho Mei Ling (No 2), supra, at 410B-C.  In this respect, whether the hearing is in nature ex parte or otherwise is not determinative of the question of costs: Re Ho Mei Ling (No 2), supra, at paragraphs 13-19.

(5)   Whether the applicant was seeking interim injunctive relief against any putative party: Leung Kwok Hung, supra, at paragraph 82.

(6)   Whether the applicant had to apply for an extension of time on which the putative party is entitled to be heard: Re Ho Chung Yan Albert (unreported, HCAL 84/2012, 28 September 2012, Lam J), at paragraph 49(b) and Re Ho Mei Ling (No 2), at 405B-C and 406F-G.

(7)   Whether the applicant in effect had a rolled-up substantive hearing of his judicial review application: Re Ho Mei Ling (No 2), supra, at paragraph 28(d).

These applications

7. Thus, whether to vary the costs order nisi is a balancing exercise of the various factors pertinent to the present case.

8. In this respect, it is clear that the primary focus of the submissions of the parties in the present application is whether it can be said that the leave application is an obviously unmeritorious one.

9. In my view, it is. 

10. As I explained in the Judgment, the principles governing whether the court would intervene at an interlocutory stage by way of judicial review are clear and well established.  The applicant is also fully aware of those principles.  See paragraphs 22-26 of the Judgment.

11. As expressed in the Judgment, the court has come to the “clear view” that the intended judicial review should not be entertained before the CEIC has made a decision.  See in particular paragraphs 28 and 41 of the Judgment; and generally paragraphs 20-21, 35-36 and 55-56 of the Judgment.

12. In the premises, it is clear to me that the leave application is one which is obviously unarguable.

13. At the hearing before me today, Mr McCoy seeks in essence to repeat his arguments raised in the leave application as to why the applicant was justified to seek the intervention of the court at this stage.  That in my view does not take the matter further for today’s purposes. As I explained, I have dismissed these arguments as clearly unarguable. 

14. At paragraph 18 of Mr McCoy’s skeleton, he submits that if it were settled law that preliminary steps could not be subject to judicial review, then there would be no basis for the comments made by the learned authors of Wade and Forsyth, which support that the court could at times intervene when the circumstances so justify.

15. The submission is in my view misplaced. 

16. Even at the leave application, it was not the contention by any parties that the court could never intervene by way of judicial review preliminary steps.  I also did not refuse the application on that basis.  The question has always been that whether, upon the settled principles of law as to when a court would so intervene, TVB has mounted a reasonably arguable case that it falls within those circumstances.  I have concluded that it clearly has not established that. 

17. For these reasons, I accept the Communications Authority and CEIC’s submissions that TVB’s application is an obviously unarguable one, and TVB should have been clearly aware of that given (a) the well established principles, and (b) the various pre-hearing correspondences exchanged between the parties and the court.

18. Coupled with this fundamental factor, I also find the following factors in favour of awarding costs against TVB:

(1)   TVB in the intended judicial review was in principal and predominantly advancing its own commercial interest.

(2)   TVB effectively sought a prohibition to restrain the CEIC from proceeding to make the substantive decision as to whether or not to grant the free domestic TV licences.

(3)   The putative parties were invited to attend the hearing by the court and had rendered significant assistance to it. They also had not conducted themselves in the hearing in any way to have increased the costs unnecessarily.

(4)   TVB clearly has the substantial means to meet costs.

19. Contrary to Mr McCoy’s submissions in court today, as emphasised by Lam J repeatedly, the discretion can be exercised against an unsuccessful applicant even in cases where the court does not find the application to be frivolous, vexatious or motivated for a tactical purpose that indicates bad faith: Leung Kwok Hung (HCAL 64/2012, 18 July 2012, Lam J) at paragraph 4; Re Ho Mei Ling (No 2), supra, at paragraph 22.

20. For these reasons, I accept the there are unusual circumstances or good reasons in the present case to justify requiring TVB to pay the costs of the unsuccessful leave application.

21. TVB also has not argued (I think rightly so) that, in the present case, there should not be two sets of costs.

22. In the premises, I allow the present applications and vary the costs order nisi to that TVB be required to pay the Communications Authority and CEIC’s costs for the leave application, to be taxed if not agreed.  There be certificate for two counsel for the Communications Authority.

23. I further order that costs of these variation applications be to Communications Authority and CEIC to be taxed if not agreed.

24. Lastly, I thank counsel for their submissions and assistance.