Chang Wa Shan v. Esther Chan Pui Kwan also known as Chan Pui Chun

HCA 1855/2010

ACTION NO 1855 OF 2010

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JUDGMENT ON COSTS
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1.I refer to the judgment I delivered in this action on 24 September 2015 in which I dismissed the plaintiff’s claims. I also made an order nisi that the plaintiff do pay to the defendant costs of the action to be taxed, if not agreed, on party‑and‑party basis.

2.This is an application on the part of the plaintiff to vary the said order nisi. The plaintiff asks for:

(1) The defendant do pay 70% of the plaintiff’s costs of the action with certificate for two counsel; and the plaintiff do pay 30% of the defendant’s costs of the action.

(2) Alternatively, there be no order as to costs of the action.

(3) Further alternatively, there be a reduction of the defendant’s costs in the action by no less than 70%.

The plaintiff’s application is resisted by the defendant who seeks to maintain the terms of the order nisi. 

3.The plaintiff’s application is based essentially on the fact that substantial time and costs in the action were spent on two issues (“the 2 Issues”), namely:

(i) what was the question put to her by Mr Midgley/Mr Mill; and

(ii) malice of the defendant when she made the utterance.  

The plaintiff argues that but for the defendant’s conduct, substantial costs in these proceedings would have been saved:

(1) It would not be necessary to subpoena Mr Midgley and Ms Lok, nor would Mr McDonnell’s evidence be required.  This would save more than two days of trial time. 

(2) The two days cross‑examination of the defendant could be greatly reduced. 

(3) Pleadings would have been focused on legal issues and there would be minimal discovery.

(4) If the trial had been focused on purely legal arguments, it could be completed in one day or slightly over one day.

4.I have been referred to KJ vKMLM and KCK, HCMC 4/2010 (21 May 2014) in which To J helpfully summarized the relevant legal principles involved which I shall not repeat herein.  Suffice to stress that it is ultimately a matter of discretion on the part of the court bearing in mind the specific facts of a given case. 

5.In the present case, I consider that the following matters are most pertinent to my exercise of discretion to do justice on the facts of this case:

(1) The plaintiff’s complaint arose out of an utterance by the defendant to Mr Midgley/Mr Mill under circumstances that were protected by absolute privilege.  No action should have been brought upon such an utterance.  This was my primary holding.  The action should not have been instituted at all. 

(2) Quite apart from the point about absolute privilege, I also found that the causes of action on slander and malicious falsehood failed.  In relation to slander, it failed because the plaintiff failed to prove that the said utterance was defamatory.  In particular, I held that the plaintiff’s argument that the utterance was defamatory in its ordinary and natural meaning was wholly misconceived.  I also held that on the plaintiff’s case of true innuendo, it failed because the pleaded particulars and the evidence adduced did not support the argued innuendo meanings. 

(3) In relation to malicious falsehood, I held that the plaintiff failed to establish pecuniary loss arising out of the utterance which was an essential ingredient for this cause of action. 

(4) Whilst it is correct to say that the defendant’s stance on the 2 Issues resulted in substantial time spent in the trial, it is not correct to say that Mr Midgley, Ms Lok and Mr McDonnell could be spared as witnesses.  There was still a dispute on the defendant’s status, role and involvement in the “Tony Chan’s legal team”.  A significant part of the evidence of each of these witnesses related to this particular dispute which was relevant to the establishment of the absolute privilege. 

(5) Similarly, a not insignificant portion of the cross‑examination of the defendant related to her status, role and involvement in the “Tony Chan’s legal team”. 

(6) It is correct to say that I have found against the defendant on the 2 Issues and that substantial time could have been saved.  However, according to my record and rough estimation, nearly two days were devoted to counsel’s opening and closing submissions which were devoted to legal arguments, principally on the issues of “absolute privilege” and “republication”.  Half a day was wasted due to the video‑link arrangement.  Some time was also wasted on plaintiff’s late amendments to the Statement of Claim and other vicissitudes in a trial. 

(7) All‑in‑all, but for the defendant’s stance on the 2 Issues (for which I had expressed various criticisms in my earlier judgment), I estimate that the trial could have been completed in three days instead of the six days actually spent.  I also accept that pleadings, witness statements and discovery could have been significantly circumscribed. 

6.In the circumstances, I am of the view that it is thoroughly unfair to order the defendant to bear any part of the plaintiff’s costs incurred in an action that should not have been instituted in the first place.  However, the conduct of the defendant in relation to the 2 Issues constituted proper basis for me to deprive the defendant of a portion of her costs despite being the successful party in the action.  Taking a broad brush approach, I consider it fair that the defendant should only recover from the plaintiff 50% of her costs in this action. 

7.I therefore vary my order nisi and make an order that the plaintiff do pay to the defendant 50% of her costs of the action to be taxed, if not agreed, on party‑and‑party basis. 

8.In relation to the costs of this application, neither party wholly succeeds.  I make no order of costs in relation to this application. 

Mr Jonathan Chang, instructed by Baker & McKenzie, for the plaintiff

Mr Kenneth K Y Lam, instructed by Lui & Law, for the defendant