Waddington Ltd v. Chan Chun Hoo Thomas and Others

CACV 466/2018

[2019] HKCA 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466OF 2018

(ON APPEAL FROM HCA 3291/2003)

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Before: Hon Lam VP and Barma JA in Court

Dates of Written Submissions: 12, 26 June and 10 July 2019

Date of Decision on Costs: 13 August 2019

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DECISION ON COSTS

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Hon Lam VP (giving the Decision on Costs of the Court):

1.We handed down our judgment on 29 May 2019 allowing the appeal to the extent we indicated at [99] of the judgment. We invited submissions on costs.

2.Counsel lodged submissions in accordance with our directions.  We have read and considered the same and we do not find it necessary to hold an oral hearing to dispose of the issue of costs.

3.We now give our decision on costs.

4.The Plaintiff’s position is that it should have the costs of the appeal and there should be no order as to costs for the application below save that the 5^th Defendant should pay the costs of the Amendment Summons of 9 January 2018.

5.The 5^th Defendant’s position is that the Plaintiff should pay the costs below (as ordered by Chow J) and the Plaintiff would only be awarded 50% of the costs of the appeal.

6.Dealing first with the costs in the court below, we agree with Mr Chan SC that we should not disturb the costs order made below.  As mentioned in our main judgment, the position of the Plaintiff below was that there should not be any taxation.  The Plaintiff did not even advance an alternative argument that costs should be taxed on solicitor and client basis.  According to the submissions before the Judge, the only way to challenge the costs of the Plaintiff, as contended previously before the Judge, was a taxation under Section 68(1) of the Legal Practitioners Ordinance[1].  These contentions have no merit and we upheld the Judge in these regards.

7.We do not agree with Mr Yu SC that the Plaintiff should have the costs of the Amendment Summons.  As we have held, the basis of taxation was an issue which the court had to determine and it was right for the 5^th Defendant to raise the same for determination by the Amendment Summons.  Though we departed from the Judge on basis of taxation, the Judge did not have the benefit of any submission on indemnity basis when he was asked to determine the basis.  Given the position taken by the Plaintiff before the Judge, we do not deem it appropriate to deprive the 5^th Defendant of the costs of the Amendment Summons and the arguments on the basis of taxation at the court below.

8.We therefore uphold the decision on costs below by Chow J.

9.As regards the costs of the appeal, we would give the Plaintiff 80% of the costs of the appeal.  Though Mr Yu also argued that there should not be any taxation and the indemnities were full indemnities, we take account of the intertwining of the materials and arguments in the presentation of the argument on taxation on indemnity basis.  As a matter of fairness, bearing in mind the Plaintiff’s failure to persuade us that there should not be any taxation under Order 62 and the indemnity basis is a fresh point taken on appeal, we would deprive the Plaintiff 20% of its costs in the appeal.  Such costs would include the costs of the leave application in CAMP 121/2018 before us and the leave application before the Judge.

10.Since the costs are rather substantial, we shall order that the costs are to be taxed with certificate for two counsel if not agreed.     

11.In respect of the argument on costs, as Mr Chan is wholly successful in resisting the alteration of the costs order of Chow J, we would order the Plaintiff to pay 50% of the costs of the 5^th Defendant for the submissions on costs.

Mr Benjamin Yu SC and Mr Justin Lam, instructed by Kao, Lee & Yip, for the plaintiff

Mr Edward Chan SC and Mr Law Man-Chung, instructed by ONC Lawyers, for the 5^th defendant