Cheung Ping Sum v. Wong Chi Hang

HCA 289/2017

[2018] HKCFI 212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 289 OF 2017

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DECISION ON COSTS

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1.For reasons set out in the Reasons for Decision handed down on 17 January 2018, I dismissed the defendant’s application for an order that the plaintiff’s claim herein be struck out. I also made an order nisi that the plaintiff should have the costs of this application.

2.Messrs Tai, Tang & Chong, solicitors acting for the plaintiff, have since written in, seeking an order that either the costs be summarily assessed in accordance with the statement of costs they provided, or that the costs of and incidental to the Summons be taxed and paid forthwith.  Messrs Mandy Wan & Co, solicitors acting for the defendant, have also written in.  They opposed the plaintiff’s application.  The plaintiff and the Court were further reminded of the fact that the defendant is on legal aid.  They requested the addition to the nisi order words to the effect that the defendant’s own costs be taxed in accordance with the Legal Aid Regulations.

3.As the defendant has been on legal aid:

(a)   Section 16C(1)(b)(ii) of the Legal Aid Ordinance bites, and that “neither the Director nor the aided person shall be liable for such costs unless a contribution is payable by the aided person under section 18(1)(b); in which case the Director on behalf of the aided person shall pay such costs to the extent that the contribution is in excess of the costs incurred by the Director on behalf of the aided person”.  The court has not however been informed as to whether any contribution is or may be payable by the defendant; and

(b)   Order 62, rule 9D(3) of the Rules of High Court is applicable, so that no order for taxation at an earlier stage may be made. 

4.In the circumstances, the application for a forthwith costs order has to be refused.   Given the forthcoming Estate Action trial, the similarity in the nature of some of the factual issues involved, and the effect of Section 16C(1)(b)(ii), I also do not deem it appropriate to order summary assessment at this stage, but would leave the matter till the end.  I would therefore simply modify the nisi order as follows, that the plaintiff shall have the costs of this application, to be taxed if not agreed, and the defendant’s own costs to be taxed in accordance with the Legal Aid Regulations.

Written submissions from Tai, Tang & Chong, for the plaintiff

Written submissions from Mandy Wan & Co, for the defendant