Cs v. Wdt

FCMC 5660/2020

[2021] HKFC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 5660 OF 2020

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J U D G M E N T
( Leave to appeal Costs’ Order)

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Introduction

1.By her Summons filed on the 26 of March 2021 the Petitioner Mother seeks leave to appeal against the costs order made on the 12 of March 2021 which arose from her unsuccessful application for leave to appeal the Judgment of 29 December 2020 (“the Judgment”).

2.I do not propose to repeat the background of the case which I set out in the Judgment and in addition in the Leave to Appeal Judgment (“the Leave to Appeal Judgment”) dated the 12 March 2021.

Notice of Appeal

3.The Mother puts forward three grounds of appeal broadly as follows:

i)     In Children’s cases a party will not be penalised in costs save where unreasonableness in the attitude towards the litigation is established

ii)     The Court erred in law and was plainly wrong in awarding costs against the Mother where

(a)     The Court did not find the Mother unreasonable in conducting the intended appeal

(b)     The Court found both parents to be loving and responsible parents and their own ways

(c)     The Court understood the parties were competing on the breakdown of the marriage when arrangements for the Children were yet to be resolved

iii)     Accordingly the Court should have concluded the Mother’s intended appeal was driven by genuine concern for the best interests children and had not displayed any unreasonable attitude towards litigation and it in the circumstances a proper exercise of discretion would have concluded that there should be no order as to costs.

4.The Father opposes the application for leave to appeal and seeks a summary assessment of his costs at HK$135,789.

Decision

5.At paragraph 91 of the Judgment I set out what I understand to be the approach to costs in Children cases which I repeat below:

“The approach to costs is succinctly summarised by Chu J in LCH and JMC [2019] HKCFI 251:

10.  It has been long recognised that in children matters, the general practice is that there be no order as to costs.  In TPL and WYY, CACV 47/2014 and CACV 61/2014, unreported, 15.12.14, the Court of Appeal has set out the relevant principles that should be taken into account when considering if a cost order is appropriate in applications to do with children.  As pointed out by the Court of Appeal, the approach that in applications to do with children, the usual order should be no order as to costs stems from the aspiration that in these applications, the court is seeking to find an arrangement which is best for the children, and that the rationale is that when a court considers custody and care and control of the children, the proceedings are inquisitorial rather than adversarial.”

6.It is for this reason that I made an order that there be no order as to costs in respect of the trial as to custody, care and control and access.

7.The Mother sought unsuccessfully leave to appeal the Judgment. I consider there is a fundamental distinction between the consideration of what is in the best interests of children at a Trial and any subsequent leave to appeal application.

8.As I said in the Leave to Appeal Judgment the question of an appeal is a discrete issue and that costs should follow the event.

9.Having read the submissions and authorities provided by both parents’ Leading Counsel I remain of the same view and that there is no realistic prospect in this proposed appeal of the Mother; consequently I refuse the Mother’s application for leave to appeal.

10.I propose to summary assess the costs. In the context of a leave application in respect of costs order I do not consider three counsel are justifiable on a party and party basis; I therefore assess the costs as follows

i)     Solicitors’ costs	HK$21,789
ii)     Two Counsel	HK$70,000	HK$91,789

11.I therefore make the following orders:

i) The Mother’s application filed on the 26 of March 2021 for leave to appeal is dismissed

ii) The Mother do pay the Father’s costs summary assessed at HK$91,789, such amount to be paid by the Mother to the Father within 28 days of the date of this Judgment

Miss Anita Yip, Senior Counsel leading Mr. Ken S.H. Chan, Counsel instructed by Messrs ONC Lawyers for the Petitioner

Mr. Robert Pang, Senior Counsel leading Mr. Eric Leung, Counsel and Miss Gigi Ho, Counsel instructed by Messrs Alvin Cheng & Rosaline Choy for the Respondent