Yifung Developments Ltd v. Liu Chi Keung Ricky and Others

HCA 1341/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1341 OF 2014

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R U L I N G

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1.This is a purported application by YDL to vary the cost order nisi made on 25 April 2016. The application by YDL was full of errors. First, it was purportedly done by letter. Secondly, the summons to vary the costs order nisi (YDL’s variation summons) was filed seven weeks out of time. Thirdly, there is another application for leave to amend YDL’s variation summons which was filed yet another three months afterwards, to vary the costs order nisi further.

Application for extension of time for YDL to vary the costs order nisi

2.The reason stated on affidavit was that Linklaters, their solicitors, relied on a commentary to the Hong Kong Civil Procedure, at paragraph 42(5)(b)(i), that an application to vary a costs order nisi could be made by summons.  I am not satisfied that ignorance of such an established principle was a good reason for extension of time.

3.The second reason given in Mr Bartlett’s submission is that there was a letter dated 9 May 2016 wherein Linklaters purported to seek to vary the costs order nisi.  It was said that the basis for variation had been stated in that letter.  YDL’s variation summons was no different in substance and no prejudice can be caused to Ricky Liu’s side.  When this court pointed out to Linklaters that variation had to be done by summons, YDL’s variation summons was taken out three days later on 23 June 2016. 

4.With respect, the letter dated 9 May 2016 was Linklaters showing cause as to why they, as solicitors, should not personally bear costs of the authority’s summons.  It was in the penultimate paragraph that they slipped in a purported application to vary the costs order nisi between the parties.

5.Ricky Liu’s side had issued a summons to vary the costs order nisi. YDL and, of course, Linklaters were aware of it and Linklaters even invited Ricky Liu to withdraw it on 10 May.  Ricky Liu’s solicitors very quickly brought to Linklaters’ attention, on 11 May, what they perceived to be procedural errors on the part of Linklaters.  It was specifically pointed out to Linklaters that the purported invitation to the court to vary the costs order nisi by letter of 9 May was misconceived because Linklaters was making submissions in their personal capacity and not in their capacity as YDL’s agents.  They had no locus, not being a party to the authority’s summons, to invite the court to vary that costs order nisi. 

6.Linklaters did nothing to issue a summons.  By their letter dated 7 June, Linklaters further made comments on the question of varying the costs order nisi.

7.From all these correspondence, one can see that the failure to take out a summons within time or shortly after expiry of time was not simply a wrong reference to the Hong Kong Civil Procedure.  It was a deliberate decision not to take out a summons.  Even when this court notified the parties on 20 June that variation could not be done by way of letter, Linklaters still only took out a summons three days later.  The contents of the summons were not complicated.  It purported to reflect what was in the letter dated 9 May.  There was simply no reason for spending these extra three days.  I am not satisfied that there was good explanation for the delay in taking out YDL’s variation summons.

8.It cannot be heard that Ricky Liu was not prejudiced.  Delay in itself, caused by failure to follow the time laid down by the rules, in itself, would cause prejudice to the opposing party.  As could be seen, Ricky Liu, had to prepare submissions to contest YDL’s purported variation summons and to explain to the court why it should not be entertained.  I also add that, even if this court were to refuse the opportunity to YDL to vary the costs order, YDL can still have an opportunity, if they deem fit, to go against their solicitors. 

9.Taking all circumstances into account, I am not satisfied that there was a good explanation for the delay and I dismiss the application for extension of time to file YDL’s variation summons.

Application to amend

10.It goes without saying that the application to amend YDL’s variation summons ought to be dismissed as well.  But just to add a few words, to take out this further summons to amend, in itself is an abuse.  The only explanation for the delay in seeking to amend YDL’s variation summons was an inadvertent omission to ask for costs on indemnity basis.  That could not in any case be a good explanation for delay, especially if the delay was 4.5 months since expiry of time.

Mr Jeremy Bartlett, SC, instructed by Linklaters, for the plaintiff

Ms Linda Chan, SC, leading Mr David Chen, instructed by Li, Wong, Lam & W I Cheung, for the 1^st defendant