Dr U v. The Preliminary Investigation Committee of the Medical Council of Hong Kong and Another

HCAL 195/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 195 OF 2015

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DECISION ON COSTS

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1.On 23 June 2016, I dismissed the applicant’s application for judicial review and by this decision I address the question of costs.

2.The applicant advanced his judicial review challenge on four grounds.  The main ground concerned a legal challenge on jurisdiction (Ground 1).  The other three grounds related to the jurisdictional challenge and concerned nondisclosure of materials in relation to the issue of jurisdiction (Ground 2), failure to consider the question of jurisdiction (Ground 3) and unreasonableness in failing to consider the question of jurisdiction (Ground 4).  Whilst the main focus of the application was the jurisdictional challenge, the grounds were basically interrelated. 

3.After the filing of evidence by the respondents, it was acknowledged that the question of jurisdiction had been considered and decided upon and therefore the applicant conceded that this rendered Grounds 3 and 4 otiose.  I made mention in the body of my decision at paragraph 15 that it was unfortunate that this fact had not been disclosed prior to the leave hearing as this would have brought into sharp focus the issues to be decided. It should be borne in mind that the respondents were legally represented at the leave hearing but this fact was not made apparent.  However, it was at a time prior to the filing of evidence.

4.The respondents argue that costs should follow the event and that they should be entitled to costs against the applicant in the substantive hearing, with certificate for two counsel.

5.The applicant argues that he should have the costs of the leave application, with certificate for two counsel, and that the respondents should have only 70 per cent of the costs of the substantive hearing, with certificate for two counsel.

6.The applicant’s argument on costs may seem unusual but there is a reason behind it.  It stems from a change of position taken by the respondents upon the filing of evidence after leave to apply for judicial review had been granted.  The respondents argue that there was never a change of position on the main ground, namely the jurisdictional challenge, and the filing of evidence had no bearing on this ground. 

7.True the main issue was the jurisdictional one but it was very much tied up with the circumstances and events that took place in the handling and processing of the complaint against the applicant.  The respondents were represented at the leave hearing and a component of the jurisdictional challenge by the applicant was that the issue of jurisdiction was not considered when it was raised by the applicant at the time of the handling of the complaint.  It only emerged after the filing of evidence which was after leave had been granted that it had been considered.  This appeared to be a change of position from the one the respondents took at the leave hearing.  It had a bearing on the argument and resulted in the two grounds later being conceded by the applicant.  

8.It is for these reasons that I am of the view that the respondents should only receive 70 per cent of their costs.  If the position of the respondents had been made clearer at the leave hearing, it would have more appropriately focused the issue or issues between the parties.

9.The applicant asks for his costs at the leave hearing but I see no justification for making such an order as the applicant sought leave on the grounds he had formulated in the Form 86.  It was at a stage of the proceedings where the applicant applied for leave and a hearing was held for that purpose.  The respondents, as is sometimes the practice, were invited to attend if they wished to do so.  The leave grounds would have been advanced in any event. 

10.For the foregoing reasons, I make the following orders:

(1) There is no order as to costs for the leave hearing;

(2) The applicant pay 70 per cent of the respondents’ costs of the substantive hearing, to be taxed if not agreed, with certificate for two counsel.

Mr Gerard McCoy, SC, and Mr Albert N.B. Wong, instructed by Mayer Brown JSM, for the applicant

Mr Stewart Wong, SC, and Mr Jenkin Suen, instructed by Department of Justice, for the 1^st and 2^nd respondents