Read the full judgment text of HCA 352/2011 on BabelCite. This Court of First Instance judgment was delivered on 22 April 2016 before Deputy High Court Judge Kent Yee.
Civil procedure – costs – sanctioned offer under Order 22 of the Rules of the High Court – whether an offer containing a term as to costs (no order as to costs) is a sanctioned offer – Order 22 r.1, r.2(4), r.3, r.5, r.5(7), r.5(8), r.15(2), r.20, r.23, r.24(4) – defamation action – plaintiff obtained dismissal of claim with costs order nisi in plaintiff's favour for 40% of defendant's costs – defendant sought to vary order nisi to obtain party-and-party costs up to 29 September 2014 and indemnity costs thereafter with enhanced interest and certificate for two counsel – defendant relied on offer dated 1 September 2014 requiring plaintiff to withdraw Statement of Claim with no order as to costs – whether offer fell within O.22 sanctioned offer regime – whether an offer including a term as to costs is a valid sanctioned offer – whether Mitchell v James [2003] All ER 1064 (CA) applies to Hong Kong's O.22 – whether Central Management Ltd v Light Field Investment Ltd [2011] 2 HKLRD 34 and Chan Kwing Chiu v Chan Chi Kau (CACV 209/2012) are binding on the issue – whether Leung Lai Kwan v Lo Kai Wing (HCMP 1554/2015) is binding authority – whether O.62 r.5(1)(d) allows court to take offer into account as a Calderbank offer – whether indemnity costs and enhanced interest should be ordered – court holds offer was not a sanctioned offer because a costs term conflicts irreconcilably with the automatic costs consequences in O.22 r.20 – court follows Mitchell v James, Sunbeam Investments Ltd v Villa Veneto, and Leung Lai Kwan, and declines to follow Chen Tek Yee & Ors v Chan Moon Shing – court holds Central Management Ltd and Chan Kwing Chiu did not rule on validity of cost-bearing offer as their ratio – even treating offer as Calderbank offer under O.62 r.5(1)(d), court declines to exercise discretion to vary Order Nisi given defendant's conduct in late abandonment of certain pleas and plaintiff's understandable position on malice – Amended Summons dismissed – Order Nisi made absolute – Mr Wong to pay Madam Wong her costs of the application, summarily assessed at HK$55,000.
Legal issues: Whether an offer containing a term as to costs is a sanctioned offer under O.22 RHC · Whether the Offer, treated as a Calderbank offer, warrants indemnity costs and enhanced interest under O.62 r.5(1)(d)
Outcome: Amended Summons dismissed; Order Nisi made absolute in the form that the plaintiff pay the defendant 40% of his costs, to be taxed if not agreed.
Cited by 4 cases · Cites 4 cases