Read the full judgment text of FACV 6, 7, 8 and 9 of 2020 on BabelCite. This Court of Final Appeal judgment was delivered on 22 March 2021 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Hoffmann NPJ.
Civil law – costs – public interest litigation exception – general rule that costs follow the event – whether exception applies to appeals concerning the Chief Executive in Council's invocation of the rarely used emergency power to make the Prohibition on Face Covering Regulation, the first such invocation since the Basic Law came into effect – applicants were largely successful at first instance but Government mostly succeeded on appeal – whether the Court of Final Appeal has jurisdiction to re-open costs orders made in the courts below – whether no order should be made as to costs of the appeals and the Court of Appeal's costs orders confirmed – s.17(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) – power to exercise any powers of the court from which the appeal lies, including a power to re-open costs orders made below – public interest litigation exception as approved in Leung Kwok Hung v President of the Legislative Council (No.2) (2014) 17 HKCFAR 841 and Chu Hoi Dick v Secretary for Home Affairs (No.2) [2007] 4 HKC 428 – proceedings brought to test a rarely invoked emergency power of obvious general and public importance – no applicant stood to gain any personal private gain – real prospect of success demonstrated by grant of leave to move for judicial review and leave to appeal to the CFA – threshold test on the merits to engage discretion to apply exception satisfied – Court of Appeal's costs orders arriving at same conclusion held to be correct – costs order nisi in the substantive judgment dated 21 December 2020 varied – no order as to costs of FACV 6, 7, 8 and 9 of 2020 – Court of Appeal's order of no order as to costs in CACV 542/2019 and CACV 583/2019 (the "KWH appeals") including costs in respect of HCAL 2945/2019 stands – Court of Appeal's order of no order as to costs in CACV 541/2019 (the "LKH appeal") stands – costs order of the Court of First Instance in HCAL 2949/2019 left undisturbed – applicant Leung Kwok Hung's own costs to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Application of public interest litigation exception to costs in CFA appeals
Outcome: The costs order nisi made in the Court's judgment dated 21 December 2020 was varied; no order was made as to the costs of FACV 6, 7, 8 and 9 of 2020, and the Court of Appeal's costs orders in the courts below were confirmed.
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