Designing Hong Kong Ltd v. The Town Planning Board

FACV No. 4 of 2018

[2018] HKCFA 34

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 184 OF 2015)

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JUDGMENT ON COSTS

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Chief Justice Ma (for the Court) :

1.On 15 May 2018, judgment was handed down dismissing the appeal brought by Designing Hong Kong Limited (DHKL).  The respondent in the appeal was the Town Planning Board (the TPB); the Secretary for Justice was the intervener in the proceedings.  Notwithstanding that the appeal was dismissed, the Court made an order nisi that there be no order as to costs on the basis that important matters of principle had been considered in the appeal regarding protective costs orders (PCOs).

2.Before the substantive appeal had been heard, following the granting of leave to appeal to this Court by the Appeal Committee,[1] DHKL had applied by summons to a judge of the Court for an order that no security for costs should be provided by it.[2]  In a Decision dated 20 December 2017, I dismissed the summons and ordered that DHKL provide security for costs within 14 days.  It was also ordered that the costs of the unsuccessful application should be reserved.

3.The TPB now seeks to vary the costs order nisi[3] in applying for an order that the reserved costs of DHKL’s unsuccessful application for an order that no security for costs be provided by it, should be converted into an order for costs in the TPB’s favour.  It does not seek, however, to disturb the no order as to costs made in relation to the substantive appeal.

4.In seeking the costs of the security for costs application, the TPB submits[4] in essence that there is no good reason why costs should not follow the event.  Unlike the substantive appeal, no issues of importance or public interest were involved.  Quite simply, DHKL made an unsuccessful application and the TPB are out of pocket in relation to the costs of that application.  Moreover, DHKL only had itself to blame in making the application.  It is clear from the reasoning of the Decision[5] that I was of the view that the basis of DHKL’s submissions in support amounted to an attempt to pre‑empt the determination of the issues which were yet to be canvassed in the main appeal before the Court of Final Appeal.

5.There is some force in the TPB’s submissions but I am not persuaded that we should vary the costs order nisi :-

(1)   It is important to look at the appeal as a whole in order to see the proper context in which to consider the security for costs application.[6] Viewed in this way, it can be seen that when it sought to avoid the standard order that security for costs be provided for the appeal, DHKL was utilising more or less the same arguments that it was running in the substantive appeal.  At the time of the security for costs application, those arguments had yet to be determined by the Court of Final Appeal and it could therefore not be said at that stage that they were bound to fail.  After all, leave to appeal had been granted by the Appeal Committee on the basis that those arguments gave rise to questions of great general and public importance.

(2)   True it is that eventually DHKL was unsuccessful in the appeal, but, as noted above, the appeal was regarded as of sufficient importance that no order as to costs should be made in relation to the appeal (and this is not sought to be varied by the TPB).  I would also note here that it was the view of the lower courts that issues of importance were raised.  The Court of Appeal made no order as to costs regarding both the appeal before it and the costs at First Instance.[7]

(3)   Equally true it is that in dismissing DHKL’s application, I was of the view that DHKL had sought to pre‑empt the outcome of the arguments involved in the main appeal.  However, if DHKL had been successful in the appeal, then in this scenario (albeit with hindsight) it would have been justified in making the earlier application.  The outcome of the appeal was accordingly relevant and it was for this reason that the costs of the application were reserved.  In the 20 December 2017 Decision, I made reference to the case of R (Plantagenet Alliance Ltd) v Secretary of State for Justice,[8] in which an order for security for costs was not made after it had already been determined that it was appropriate to make a PCO.[9]

(4)   The TPB relies on a number of cases in which an order for costs had been made against the unsuccessful party in applications relating to security for costs in this Court.[10] They are of little assistance in the present case.  In those cases, the issues for determination in the security for costs application were not intimately connected to the issues that were involved in the main appeal.

6.For these reasons, the costs order nisi will remain.  As for the costs of the TPB’s application to vary, it is right that there should similarly be no order as to costs.  As mentioned earlier, there is some force in the TPB’s submissions and it has been out of pocket in relation to the security for costs application through no fault of its own.

Written submissions by Mr Johnny Mok SC and Mr Jenkin Suen, instructed by the Department of Justice, for the Respondent

Written submissions by Mr Nigel Kat SC, Mr Azan Marwah and Ms Katherine Olley, instructed by Boase Cohen & Collins, for the Appellant