Chang Wa Shan v. Esther Chan Pui Kwan also known as Chan Pui Chun

CACV 240/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2015

(ON APPEAL FROM HCA NO 1855 OF 2010)

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BETWEEN

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JUDGMENT ON COSTS

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Hon Kwan JA (giving the judgment of the Court on costs):

1.On 8 September 2017, we handed down our judgment and by a majority allowed the appeal to the extent that the plaintiff is awarded general damages of $30,000 for slander and malicious falsehood. The parties have since provided written submissions on the costs of the appeal and below pursuant to our direction.

Costs of the appeal

2.Whilst the defendant acknowledged that costs should normally follow the event, it was submitted that she should pay only 25% of the plaintiff’s costs of the appeal and that counsel’s fees payable should be limited to two counsel.

3.We have no hesitation in granting a certificate for three counsel for this appeal.  The admission of overseas specialist counsel to appear for the plaintiff in this appeal (the ad hoc admission was not opposed by the Bar Association or the Secretary for Justice) was amply justified, by reason of the points of law of great importance and complexity raised in this appeal.

4.The defendant sought to deprive the plaintiff of a substantial portion of his costs on two grounds.  First, by the ruling of the majority, the plaintiff failed to recover special damages of $5.3 million odd and was awarded only general damages of $30,000.  Second, the plaintiff’s case on defamatory meanings was confusing, due to the unsatisfactory way he pleaded his case, and this took up substantial time at the trial and on appeal.

5.The plaintiff’s response was that he must be regarded as the overall successful party in the appeal and he did not raise any point that had unnecessarily and unreasonably prolonged the appeal to warrant any deduction of his costs.  He succeeded on the issue that absolute privilege should not be available to the defendant (by unanimous ruling), and on the issue of defamatory meaning (by the majority ruling).  As for the issue whether damages may be recovered for the consequences of republication on occasions that are indisputably covered by absolute privilege, which he lost (by the majority ruling), this was a relatively short issue of principle which occupied a relatively minor part of the appeal and it could not be said he was acting unreasonably in raising it in his claim and on appeal.

6.Plainly, the plaintiff could not be said to have acted unreasonably in raising the issue whether the consequences of an absolutely privileged publication can be sued on as damages flowing from an original non-privileged publication.  If he had acted unreasonably, he may not only be deprived of part of his costs but be ordered to pay a part of the unsuccessful party’s costs.  Although this issue did not take up as much time or assume as much importance as the issue on the availability of absolute privilege to the defendant, it was nevertheless a significant issue raising a point of law of great importance and the arguments on this issue had added to the length and costs of the appeal.  We think it appropriate to deprive the plaintiff of 30% of his costs to reflect the defendant’s success on this issue by the majority ruling.

7.We do not propose to deprive the plaintiff of any further costs on account of his case on defamatory meanings, as he was successful overall on that issue by the majority ruling and substantial time was not spent despite the unsatisfactory state of his pleadings.

8.For the avoidance of doubt, the costs of preparing the present submissions are part of the costs of the appeal.

Costs below and of the action

9.The defendant argued similarly that the plaintiff should be deprived of 75% of the costs below, that counsel’s fees payable should be limited to one counsel, and costs should be taxed at the District Court Scale as the plaintiff’s claim would have been within the jurisdiction of the District Court and should have been tried there.

10.For the reasons given earlier, we reject the submission that counsel’s fees should be limited to one counsel.  We give a certificate for two counsel for the trial.

11.We decline to order costs be taxed at the District Court Scale.  We do not think the action should have been tried in the District Court given its unusual difficulty and complexity.  The Court of First Instance may, under section 43(3) of the District Court Ordinance, Cap 336, decline to order a claim be transferred to the District Court if, by reason of the importance or complexity of any issue, the action ought to remain in the Court of First Instance.

12.We think it appropriate that the plaintiff should be deprived of part of his costs because he failed on some of the issues, chief among them was that of special damage due to republications by the media of the court proceedings on an occasion of absolute privilege, which was upheld on appeal by the majority ruling.  The plaintiff’s case of defamatory meaning in the sense of ordinary and natural meanings was rejected by the judge, and there was no appeal on this.  The judge also held against the plaintiff on all three innuendo meanings, and his ruling on two of them was upheld on appeal.

13.We note also that the issue on damages arising out of the republication in open court and the further republication by the media was only raised by the judge in the opening address of the plaintiff’s counsel[1]. Further, there were late amendments to the statement of claim resulting in some waste of time[2].

14.Taking a broad brush approach, we order 30% to be deducted from the costs below and of the action that the defendant should pay the plaintiff.

Orders

15.We make the following orders on costs:

(1)  the defendant is to pay the plaintiff 70% of the costs of the appeal, with a certificate for three counsel; and

(2)  the costs order made by the court below is set aside and the defendant is to pay the plaintiff 70% of the costs below and of the action, with a certificate for two counsel.

Written submissions by Mr James Price QC, Mr Benjamin Yu SC and Mr Jonathan Chang, instructed by Baker & McKenzie, for the Plaintiff (Appellant)

Written submissions by Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law, for the Defendant (Respondent)