Chen Enhong v. Jd.Com International

HCMP 1232/2020

[2020] HKCFI 2784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1232 OF 2020

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R U L I N G

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1.The parties appeared before me this morning by counsel, Mr Nip for the plaintiff and Ms Chan for the defendant. The plaintiff has asked for leave to withdraw the action because the plaintiff had arrived at a settlement with Mr Zhou on 30 September 2020. Ms Chan has not raised any objection to the application for leave to withdraw, although she has made it plain that the defendant is not consenting to the application.

2.I give leave to the plaintiff to withdraw the action.  I make an order in the terms of the draft order submitted by Mr Nip as amended, approved and signed by me.  The amendment I have made is by deleting the very last sentence in the draft and substituting it by the words “leave is granted to the plaintiff to withdraw the plaintiff’s Originating Summons”.

3.Regarding the question of costs, Mr Nip submits that there should be no order as to costs whilst Ms Chan submits that the plaintiff should pay costs to the defendant.  Mr Nip submits that there should be no order as to costs because of the conduct on the part of the defendant, namely, that although the defendant had been communicating with Mr Zhou about the matter, the defendant never responded to the plaintiff in relation to this action until 30 September 2020.  Mr Nip further relies on various letters which passed between the solicitors on both sides on 30 September 2020 and 5 October 2020. 

4.I have considered all those points and I have come to the conclusion that the plaintiff should pay the costs of the defendant for the following reasons:

(1)     the general rule is that a plaintiff who seeks to withdraw the action started by him should pay the costs of the defendant;

(2)     further, the general rule in a Norwich Pharmacal application is that the applicant should pay the costs of the respondent who is normally an innocent third-party. 

5.This is acknowledged in paragraph 51 and 52 of Mr Nip’s skeleton submission dated 29 September 2020 at which stage the defendant had not yet communicated with the plaintiff’s side at all. 

6.I do not see any sufficient reason to depart from the two general rules referred to above.  The plaintiff simply could not have been able to proceed with the application today and must withdraw the action because the whole basis for the application has gone as a result of the settlement with Mr Zhou. 

7.I therefore order that the plaintiff should pay the costs of this action to the defendant to be summarily assessed.  For the purpose of the summary assessment of costs, I direct as follows:

(1)     the defendant should serve on the plaintiff and submit to the court its statement of costs within seven days from today;

(2)     the plaintiff should serve on the defendant and submit to the court its objection to the statement of costs (if any) within seven days thereafter;

(3)     the defendant should serve on the plaintiff and submit to the court his response to such objection within three days thereafter. 

8.I shall then give my ruling on the question of costs in writing. 

Mr Thomas T L Nip, instructed by David Fenn & Co, former solicitors for the plaintiff

Ms Tiffany Chan, instructed by Miao & Co, for the defendant