Li Chi Sum v. Secretary for Justice for and on behalf of the Director of Fire Services

DCEO 11/2017 & DCEO 5/2018 (Consolidated)

[2025] HKDC 175

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NOS 11 OF 2017 & 5 OF 2018

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(Consolidated by the Order of Mr Registrar Ho
of the District Court dated 28 February 2018)

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DECISION ON COSTS

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A.  Introduction

1.By a Decision dated 28 February 2024 (“Decision”, the abbreviations in which will be adopted below), this Court allowed (i) the Respondent’s Strike Out Application and (ii) the Claimant’s Amendment Application, except paragraphs 40A and 40B of his Draft Re-amended Consolidated Notice of Claim (“RACNOC”) (for which no leave to amend was granted).

2.This is the Court’s decision on the costs of these applications.

B.  Costs of the Strike Out Application

3.The Claimant accepts that costs should follow the event in respect of this application. I agree that the Respondent, as the successful party, should be entitled to costs.

C.  Costs of the Amendment Application

4.In an application for leave to amend which is contested, there are usually two sets of costs:

(1)  The party seeking to amend normally bears the costs of and occasioned by the amendment, because he would be regarded as seeking the indulgence of the court.

(2)  The party opposing the application unsuccessfully may have to bear the costs of the hearing if he unreasonably opposes the application.

See Daimler AG v Leiduck (re: expert evidence) (No 3) [2018] 1 HKLRD 1188 at paragraphs 10-16 (Lisa Wong J).

5.The Claimant refers to two letters from his solicitors to the Department of Justice marked as “without prejudice save as to costs”.

(1)  The first letter, dated 6 June 2023, stated inter alia as follows:

“As you may have learned that there are factual changes on Fire Department on the verdict of our aided client’s Disciplinary Proceedings.

Our client would need to auto re-amend the Consolidated Notice of Claim to reveal all issues to the Esteemed Court.

Kindly if your department would agree to the proposed amendment.

Kindly let us have your reply as prompt.”

(2)  The second letter, dated 21 June 2023, referred to the first letter and stated inter alia that:

“We treated your Esteemed Department does not consent to the re-amendment of the Consolidated Notice of Claim.

We write to inform you that our aided client would be taking further action without further notice.”

6.It is undisputed that the Department of Justice responded to neither of these letters.

7.However, I do not see how these letters could assist the Claimant on costs:

(1)  The Claimant could not amend his pleading as of right, if that was what the reference to “auto re-amend” in the first letter suggested. Leave to amend was required.

(2)  Neither letter was accompanied by a draft RACNOC to allow the Respondent to form a view on whether the proposed re-amendments were agreeable or not.

8.The Draft RACNOC was attached to the Claimant’s Amendment Summons dated 1 August 2023. As noted in my Decision at paragraph 6, the Respondent’s opposition was limited to paragraphs 40A and 40B of the Draft RACNOC. This position was communicated to the Claimant for the first time in the Respondent’s Skeleton Submissions dated 24 November 2023.

9.The Claimant argues that, had the Respondent raised his objections to paragraphs 40A and 40B, the Claimant “should have no difficulties in dropping these 2 paragraphs and reach[ing] an agreement with the Respondent on this application”.

10.Yet, I note that after the Claimant had sight of the Respondent’s Skeleton Submissions, he insisted upon including the disputed paragraphs in his Amendment Application: see Claimant’s Supplemental Skeleton Submissions dated 25 November 2023, paragraphs 11-12. A hearing of the Amendment Application was therefore unavoidable.

11.It was only at the hearing and upon the Court’s inquiry as to the basis of paragraphs 40A and 40B of the Draft RACNOC that the Claimant’s counsel informed the Court (after a short adjournment) that his client no longer sought leave to amend in respect of those paragraphs.

12.In the circumstances, I am unable to accept that the Claimant was the successful or substantially successful party on the supposed matter of contention at the hearing of the Amendment Application.

D.  Disposition

13.For the foregoing reasons, I make the following orders as to costs:

(1)  Costs of the Strike Out Application (including the costs of the hearing) be to the Respondent, with certificate for counsel, to be taxed if not agreed.

(2)  Save as provided for in sub-paragraph (3) below, costs of and occasioned by the Amendment Application be to the Respondent in any event, to be taxed if not agreed.

(3)  Costs of the hearing of the Amendment Application be to the Respondent, with certificate for counsel, to be taxed if not agreed.

(4)  The Claimant’s own costs to be taxed in accordance with the Legal Aid Regulations.

Mr Chu Wai Kei, instructed by Lau, Pau & Co. Solicitors, assigned by the Director of Legal Aid, for the Claimant

Ms Kay Seto, instructed by the Department of Justice, for the Respondent