Read the full judgment text of CACV 253/2002 on BabelCite. This Court of Appeal judgment was delivered on 14 May 2004 before Yuen JA, Gall J, Sakhrani J.
Civil procedure – costs – appeal – variation of order nisi – employee bringing three discrete claims against former employer – 'follow the event' principle – issue-based costs orders – whether court should depart from 'follow the event' where plaintiff makes discrete claims for different sums and fails on some – whether plaintiff should bear defendant's costs of failed claims – whether successful plaintiff should be deprived of part of his own costs for failed issues – former employee claiming terminal payments under Part VIA of the Employment Ordinance, end of year payment under contract, and damages for breach of implied obligation of good faith under Malik v Bank of Credit and Commerce International SA – action transferred from Labour Tribunal to High Court – trial awarding terminal payments and end of year payment but dismissing Malik claim – Court of Appeal allowing defendant's appeal against terminal payments but dismissing appeal against end of year payment – no cross-appeal on Malik claim – whether court should make issue-based costs order reflecting partial success on appeal – held plaintiff entitled to one-third of costs of appeal reflecting time spent on successful claim – whether 'follow the event' principle should yield to issue-based apportionment where discrete claims can be isolated – held yes – traditional 'follow the event' practice should give way to fairer, more precise approach reflecting realities of litigation – 'follow the event' principle encourages litigants to increase costs by leaving no stone unturned – supported by In re Elgindata Ltd No. 2, John Richardson Computers Ltd v Flanders, and Phonographic Performance Ltd v AIE Rediffusion Music Ltd – whether plaintiff should bear defendant's costs on failed claims – held no – would be harsh given novelty of Part VIA of the Employment Ordinance, its lack of direct English equivalent, and absence of Hong Kong case law – approach consistent with Elgindata principle (3) – plaintiff instead deprived of part of his own costs for failed claims – order nisi varied accordingly – plaintiff to pay two-thirds of appeal costs and defendant to pay one-third, with set-off – defendant to pay plaintiff one-third of costs of the action – plaintiff's own costs taxed under Legal Aid Regulations – costs of variation application form part of appeal costs.
Legal issues: Apportionment of costs of the appeal · Issue-based costs orders for discrete claims · Whether plaintiff should bear defendant's costs of failed claims
Outcome: The costs order nisi was varied. The Plaintiff is to pay the Defendant two-thirds of the costs of the appeal and the Defendant is to pay the Plaintiff one-third of the costs of the appeal, liability under the costs orders to be set off. The Defendant is to pay the Plaintiff one-third of the costs of the action. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations. The costs of the application to vary the costs order nisi form part of the costs of the appeal.
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