The University of Hong Kong v. Hong Kong Commercial Broadcasting Co Ltd and Another

HCMP 2801/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO2801 OF 2015

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D E C I S I O N O N C O S T S

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1.On 30 November 2015, I handed down my decision on the plaintiff’s summons for continuation of the ex parte interlocutory injunction and on the applications of various persons to join in as parties to the action and to discharge or vary the interlocutory injunction. At §93 of my decision I gave directions for the resolution of the question of costs. I have since received written submissions and copies of relevant correspondence between the parties. This is my determination of the question of costs. I shall use the abbreviations defined in my previous decision.

2.There is no issue of costs as between the University on the one hand and the Hong Kong Journalists Association and Mr Lau Yee‑ching on the other.  The latter two have accepted the University’s proposal that there be no order as to costs and this will therefore be the position as between them.

3.What remain for determination are the costs as between the University and Apple Daily Limited (“Apple Daily”), Mr Lee Hei-shun (“Mr Lee”) and the Hon Mr Ip Kin-yuen (“Mr Ip”).  I shall deal with the incidence of costs as regards these three persons separately below.  The background to and the course of these proceedings can be seen from my decision of 30 November 2015, particularly at §§1-32, and will not be repeated.  The relevant matters to be considered include the standing of these persons to take part in the hearing on 6 November 2015 and thereafter as well as the substantive outcome of the various applications.

Apple Daily Ltd

4.On 5 November 2015 Apple Daily wrote to solicitors for the University to ask for a copy of the injunction order and related documents.  On 6 November 2015, the first return date of the ex parte injunction, Apple Daily appeared by leading and junior counsel to argue that the injunction should be discharged or at least varied.  After that hearing, Apple Daily filed an affirmation on 13 November and a summons on 20 November.  The affirmation stated that Apple Daily applied (i) to vary or discharge the injunction as a person affected, (ii) to oppose the University’s application for continuation of the injunction, and (iii) to be joined as a defendant “if necessary”.  By its summons Apple Daily applied to be “joined as the 3^rd defendant to discharge the ex parte interim injunction order granted … on 30 October 2015 …, and continued and revised on 6 November 2015 …”.  Apple Daily’s application was rejected in my decision of 30 November.  The ex parte interim injunction, as revised on 6 November, was continued pending trial.

5.The University submits that Apple Daily should pay all its costs, while Apple Daily submits that the University should pay its costs up to 6 November 2015 and that there should be no order as to costs thereafter.

6.In my view no clear winner emerged on 6 November 2015 as between the University and Apple Daily.  Apple Daily was clearly in possession of two recordings published by the 1^st defendant on 28 and 30 October 2015, which Apple Daily had reported in its newspaper.  The ambit of the information publication of which was restrained by the ex parte injunction was very wide, potentially extending to all past meetings of the Council in the entire history of the University – information of which Apple Daily might well have been in possession.  The public domain exception was at that time worded in a way that gave rise to doubt about its precise effect. Apple Daily sought to be joined as a party on the contention that it was directly affected by the injunction.  Overall the terms of the ex parte injunction were such that it was less clear that Apple Daily had no ground to intervene or be joined in the proceedings than was the position on 24 November.  The outcome on 6 November was that the injunction was substantially curtailed in scope and the public domain exception amended.  On the other hand Apple Daily failed to secure a discharge of the injunction and failed in resisting the continuation of the interim injunction as regards the limited Council meetings specified in the amended order.  Taking into account all the circumstances I consider that there should be no order as to costs up to and including 6 November.

7.Thereafter I think the University has essentially prevailed as against Apple Daily in its summons either to be joined or to discharge the interim injunction.  It seems to me that costs should follow the event.  Apple Daily submits that the constitutional freedom of expression was involved in this case, but in my view that is not a reason for departing from the general rule in costs.  Apple Daily points out that it has combined efforts with the Hong Kong Journalists Association and Mr Lau Yee-ching in submitting a detailed joint supplemental skeleton for the hearing on 24 November.  I commend that approach but it seems to me to be a matter that goes to the quantum rather than the incidence of costs.  It may be that leaving aside the question of joinder, the University’s costs that are properly referable to Apple Daily’s participation may be limited, given that it would have had to deal with the same arguments raised by the Hong Kong Journalists Association and Mr Lau Yee-ching in any event.  This is a matter that may well be relevant upon the taxation of costs but is not a reason for depriving the University of its prima facie entitlement to costs.  I therefore order that Apple Daily should pay the University its costs referable to Apple Daily after 6 November 2015 including the costs of preparing submissions to address its costs position.

Mr Lee Hei-shun

8.Mr Lee had downloaded the two recordings published by the 1^st defendant on 28 and 30 October 2015 and for that reason claimed to fall within the description of the 2^nd defendant (prior to amendment).  He appeared by leading and junior counsel on 6 November 2015 to contend that the ex parte injunction should be discharged, alternatively that it should be varied so that (i) information already in the public domain (including the two recordings published on 28 and 30 October 2015) should not be covered; and (ii) its scope should be confined to the confidential information relating to the 29 September 2015 Meeting.  He did not issue a summons but filed an affirmation dated 5 November 2015.

9.On 19 November 2015 Mr Lee’s solicitors wrote to the University’s solicitors indicating he would be prepared to withdraw from the proceedings on condition that the University paid his costs of the hearing on 6 November.  On 20 November the University counter‑offered that if Mr Lee withdrew from the proceedings with no order as to costs, the University would not pursue him for the costs incurred.  On 23 November Mr Lee indicated that he no longer wished to take part in the proceedings.  On 3 December the University repeated its offer of no order as to costs to Mr Lee.  On 8 December Mr Lee proposed that the University should bear his preparation costs in full for the hearing on 6 November and one-third of his costs for that hearing.  On 15 December the University reiterated its previous offer, which was ultimately not taken up.

10.In their written submissions, Mr Lee seeks his costs against the University and vice versa.

11.I would make no order as to the costs of and relating to the 6 November 2015 hearing as between Mr Lee and the University.  It is true that the public domain exception in the ex parte injunction was amended on 6 November but, of the court’s own motion, a revised form of wording had already been adopted in the consent order relating to the 1^st defendant made the day before (5 November).  It could be said that the wording of the original public domain exception was not as clear as desirable, but if Mr Lee had any doubt whether he was the target of the proceedings merely because of his possession of the two published recordings, a simple letter of enquiry would have sufficed.  Instead he instructed leading and junior counsel who appeared and advanced arguments on a wide range of issues including lack of authority on the part of the Council chairman, a contention which I eventually rejected as being without substance. 

12.It is also true that the scope of the injunction was curtailed on 6 November, but this court already expressed concern about the width of the ex parte injunction on 5 November 2015 and would in any event have revised the scope of the injunction even without Mr Lee’s participation.  I also take into account that Mr Lee sought but failed to obtain a discharge of the injunction altogether.  In these circumstances I consider that the fair outcome as regards the hearing of 6 November 2015 would be that the parties bear their own costs.

13.Mr Lee plainly had no standing to oppose the continuation of the revised interim injunction after 6 November.  The University asked him by letter dated 13 November whether he intended to persist with his application to be joined.  On 19 November he said he would only withdraw if the University paid his costs.  He did not unconditionally withdraw from the proceedings save as to costs until the eve of the hearing on 24 November.  The University had had to deal with his position up to that point, including in the further skeleton argument it lodged on 18 November.  Mr Lee also thrice failed to accept the University’s very reasonable offer on costs starting from 13 November.  I consider that Mr Lee should be required to pay the University its costs incurred after 6 November 2015 in addressing his position including the costs of preparing submissions to address his costs position.

The Hon. Mr Ip Kin-yuen

14.Mr Ip filed a summons and an affirmation on 5 November 2015.  He applied to be joined as “a party interested in the proceedings”, and for an order that the ex parte injunction be set aside on such terms as the court thought fit.  On 6 November he appeared by leading and two junior counsel.  The capacities based on which he sought to intervene are that he was (i) a permanent resident of the HKSAR; (ii) a member of the University’s Court; (iii) a member of the University’s Convocation; (iv) a convenor of a group of persons called “HKU Alumni Concern Group”; and (v) a member of the Legislative Council.

15.On 13 November 2015 the University wrote to ask whether Mr Ip intended to persist with his application to be joined in the proceedings.  On 19 November his solicitors stated he would not participate further in the proceedings except in relation to costs, and asked the University to pay his costs of the hearing on 6 November (except any fees of leading counsel, who had appeared on a pro bono basis).  On 20 November the University offered not to pursue Mr Ip for costs if he withdrew his summons with no order as to costs.  On 23 November Mr Ip lodged a skeleton argument seeking costs.  On 24 November junior counsel appeared in court on his behalf but left at the outset after I indicated that I would defer all questions of costs.

16.After my decision was handed down on 30 November, the University wrote again to Mr Ip reiterating its offer that there be no order as to costs.  Mr Ip rejected the offer.

17.In my view, Mr Ip should pay the University’s costs.  He failed in his application to be joined as a party or to set aside the interim injunction.  He was not under any misapprehension that he was caught by the ex parte injunction as a defendant.  His only basis for intervening was the five capacities mentioned above, none of which was in my view sufficient to justify joinder.  The fact that I heard his counsel de bene esse does not affect the position; nor does the alteration of the scope of the original ex parte injunction on which the court had already expressed concern on 5 November.  After 6 November Mr Ip failed to withdraw his application until after the University had lodged its further skeleton argument.  He also twice rejected the University’s offer on costs which seems to me to have been more than reasonable in the circumstances.  Accordingly I order that Mr Ip do pay the University its costs incurred in respect of Mr Ip’s summons and in preparing submissions to address his costs position.

18.In respect of all costs ordered there will be a certificate for two counsel.

Written Submissions by Mr Clifford Smith SC and Mr Martin Kok, instructed by Clifford Chance, for the plaintiff

Written Submissions by Mr Raymond Ho, instructed by Hampton, Winter & Glynn, for the intended defendant (Apple Daily Limited)

Written Submissions by Mr Hectar Pun, SC and Ms Anson Wong Yu-yat, instructed by Ho Tse Wai, Philip Li & Partners, for the intended defendant (Lee Hei-shun)

Written Submissions by Mr Earl Deng and Ms Tara Liao, instructed by Ho Tse Wai, Philip Li & Partners, for the intended intervener (Ip Kin‑yuen)