Leung Lai Kwan v. Lo Kai Wing and Another

HCA 1158/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1158 OF 2011

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D E C I S I O N

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1.On 18 May 2015, I handed down a decision in respect of costs in this matter. The issue that gave rise to the argument in respect of costs revolved around the interpretation of Orders 22 and 62, and in particular the effect of the rules in respect of sanctioned offers.

2.Application is now made by Madam Leung for leave to appeal against my decision.

3.The arguments advanced are essentially a repetition of the arguments advanced by Mr Lam previously.  The finding he seeks necessarily involves a conclusion that, irrespective of the nature of a pre‑trial offer, unless the offer is made in the form of a sanctioned offer, with an appropriate payment into court, the court cannot take the offer into account at all in assessing costs. 

4.This case graphically illustrates that there may be many situations in which a pre‑trial offer may not be capable of meeting the requirements of a sanctioned offer.  It simply cannot be the situation that in those circumstances it is not open to a party to make a pre‑trial offer with a view to protecting himself against costs.

5.I am not satisfied that the matter is arguable at all, and accordingly leave to appeal must be refused.

6.Madam Leung also applies for a stay of execution on the costs order pending appeal.  It is well established that a stay of execution will only be granted if there are strong grounds for the proposed appeal: see Toeca National Resources BV v Baron Capital Ltd [2013] 5 HKLRD 178. 

7.Mr Lam has failed to satisfy me that the appeal is even reasonably arguable.  Madam Leung has been legally aided throughout these proceedings and the successful defendants have had to look to their own resources to resist the matter not only at trial but through a substantive appeal.  There is no basis at all for the successful defendants to be further kept out of their costs.

8.The application to stay execution of the costs order is refused.

9.There will be an order that Madam Leung must pay Mr Lo and Ms Hon’s costs of and incidental to the application on a party and party basis.  Where necessary, costs will be taxed on Legal Aid Regulations.

Mr Allen Lam, instructed by Patrick, Mak & Tse, for the plaintiff

Ms Carmen Kei, instructed by Fairbairn Catley Lo & Kwong, for the 1^st and 2^nd defendants