Komal Patel and Others v. Chris Au and Others

HCA 183/2014 &
HCA 2063/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 183 OF 2014

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2063 OF 2015

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APPLICATION FOR VARIATION OF
COSTS ORDER NISI

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1.This is the 1^st defendant’s (Au) application to vary the costs order nisi following my decision on 29 July 2016 in relation to an application by Au for specific discovery against the 1^st, 3^rd and 4^th plaintiffs (by original action) (the plaintiffs) and the 5^th defendant (by counterclaim) (Essence) in relation to 3 classes of documents. The other parties oppose the variation application which was dealt with by way of written submissions.

2.This Court made a costs order nisi that Au pays the costs of the discovery application of the plaintiffs and Essence forthwith.  The order was made in view of the inordinate and unexplained delay in taking out the application; the generality and width of the application which unnecessarily occupied the parties to address its terms and scope; and the limited extent to which Au was successful in his application.

3.The delay in making the specific discovery application was inexcusable and no adequate or plausible explanation was proffered to my satisfaction.  As I stated in my decision, I seriously considered not granting the application because of the inordinate delay.  In his written submission, Au seeks to reduce the period of delay involved but the fact remains even on his account of relevant events the delay was substantial and was exacerbated by the timing of the application, being made just prior to trial when the parties would be preparing their cases. 

4.In light of my comments in my decision, there is no answer to the generality and width of the application.  It was framed in general and broad terms and lacked specificity.  It unnecessarily burdened the other parties and the court in having to consider an application whose ambit was broad and wide.  Bear in mind this was an application for specific discovery, not general discovery.

5.Au argues that this was not a case that his application was not successful to “a very limited extent” but rather it was “partly successful”.  It is clear from my decision whichever way you describe the outcome of the application that the resultant discovery order very much narrowed down what was originally sought.

6.In any event, it was because of the foregoing matters considered together that I made the order nisi as to costs. 

7.I should add that I gave a direction on 4 August 2016 that costs should be summarily assessed on paper without the need for an oral hearing.  Under Order 62, rule 9A of the Rules of the High Court, a court may if it considers appropriate to do so make a summary assessment of the costs by ordering payment of a sum of money to that other party in lieu of taxed costs. 

8.I consider a summary assessment of costs a highly effective and efficient means to deal with the question of quantum.  This is particularly so following an interlocutory application where the court can promptly and accurately assess the quantum of costs claimed.  It also brings finality to the issue of costs and therefore saves time and avoids further proceedings and further costs. 

9.Au takes issue with the statement of costs of the plaintiffs and Essence.  I have considered the objections to the statement of costs and I see no reason why they should not be allowed. 

10.Au submits that the costs order nisi should be varied by making instead an order that there be “no order as to costs” between the parties.  He also submits in the alternative that if the Court does not agree to this order then it should be varied so that he only pays a fraction of the costs of the plaintiffs and Essence “in any event” to reflect the partial success of his application, and in the further alternative that if the Court considers that Au should bear the costs of the plaintiffs and Essence that the costs order should be that Au pays the costs of the plaintiffs and Essence “in any event” and not “forthwith”. 

11.I am not convinced by the submissions on behalf of Au in relation to the substantive argument or the proposed alternatives.  I should add that I ordered that costs be paid forthwith because of the nature and circumstances of the application which have been addressed in my decision. The application is refused and I order that the costs order nisi be made absolute. There will be an additional order that Au pays forthwith the costs of Essence in relation to this application in the amount summarily assessed. 

In respect of HCA 183/2014:

Mr Barry Hoy of Robertsons, for the plaintiffs (by original action) and the 1^st to 4^th defendants (by counterclaim)

Mr Tony Tam of Lo & Lo, for the 1^st defendant (by original action) and the plaintiff (by counterclaim)

The 2^nd defendant (by original action) and the 2^nd defendant (by counterclaim to counterclaim) was excused from attendance

The 3^rd defendant (by original action) and the 7^th defendant (by counterclaim) was not represented and did not appear

Mr Jin Pao, instructed by Reed Smith Richards Butler, for the 5^th and 6^th defendants (by counterclaim) and the plaintiffs (by counterclaim to counterclaim)

The 3^rd defendant (by counterclaim to counterclaim) was not represented and did not appear

In respect of HCA 2063/2015:

The parties were not represented and did not appear in this application