Woo Kwok Ping v. The Incorporated Management Committee of Tsuen Wan Trade Association Primary School

CACV 282/2023, [2025] HKCA 168

On Appeal From [2022] HKDC 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2023

(ON APPEAL FROM DCCJ NO 3296 OF 2020)

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BETWEEN

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DECISION ON COSTS

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

1.By our judgment dated 25 November 2024,[1] we allowed the plaintiff’s appeal and entered judgment in her favour. At §65 of the judgment, we made an order nisi that: (1)  the defendant do pay the plaintiff the costs of the appeal including the costs of the applications for leave to appeal, and (2)  the defendant do pay 60% of the plaintiff’s costs of the action and counterclaim below with a certificate for two counsel.

2.By summons dated 9 December 2024, the defendant applies for the order nisi to be varied to: (1) the defendant do pay the plaintiff 70% the costs of the appeal including the costs of the applications for leave to appeal; (2) the defendant do pay 30% of the plaintiff’s costs of the action and counterclaim below with a certificate for two counsel “insofar as to work that in fact involved two counsel both of whom charged fees is concerned”; and (3) the plaintiff’s own costs during the periods in which legal aid was granted be taxed in accordance with the Legal Aid Regulations.

3.Item (3)  above is not controversial and we add this order.

4.The words in quotation in Item (2)  above are also uncontroversial and indeed reflect what was already stated in footnote 35 to §65 of our judgment.  The defendant’s proposal to incorporate such wording in the order itself is in our view unnecessary, and would no doubt not have been made but for the substantive changes it seeks by this application, which are the real focus of the summons.

5.What remains to be decided is: (1)  whether the costs of the appeal awarded to the plaintiff should be reduced to 70%, and (2) whether the defendant should be required to pay only 30%, instead of 60%, of the plaintiff’s costs of the action and counterclaim.

6.As to the costs of the appeal, we consider that the general rule that costs follow the event should apply.  As Bokhary PJ, giving the judgment on costs of the Court of Final Appeal in Commissioner of Inland Revenue v Hongkong International Terminals Ltd [2014] 4 HKLRD 412, stated:

“ There is a discretion in the court to deprive a successful party of the whole or part of his costs because he had caused a significant increase in the length or costs of the proceedings by raising issues on which he did not succeed. That can be done even if it was not unreasonable to have raised those issues. Whether or not it should be done depends on all the circumstances. This discretion exists for the purpose of avoiding the rigour of too inflexible an application of the rule that costs generally follow the event. It is to be approached with due circumspection so as not to undermine the utility of that general rule.”

7.Here the plaintiff is the winner.  She succeeded on appeal in overturning the decision below and obtaining judgment broadly in the amount she claimed.  She did not prevail on each and every argument raised on appeal, but none of the points on which she was unsuccessful was in our view so substantial, discrete or time-consuming as to call for a reduction of the costs of the appeal to be awarded to her. 

8.We recognise that in the application to the judge below for leave to appeal there was a proposed ground of appeal relating to the seven complaints which the judge had found to justify summary dismissal.  In counsel’s written submissions to the judge this was reduced to a challenge against Warnings nos. 8 and 13 and the overall effect on dismissal (see §§35-89 of the judge’s decision on leave to appeal dated 10 October 2022).  This factual challenge was no longer relied on in the application to the Court of Appeal for leave to appeal.  This is quite a distinct matter and in all the circumstances we are prepared to make a minor adjustment so that the costs of the application to the judge for leave to appeal awarded to the plaintiff shall not include any costs relating to that factual challenge (i.e Ground 3 as described by the judge in his decision).  Subject to this we decline to further vary the order nisi in §65(1).

9.As for the costs of the action, we do not think that the alternative causes of action of breach of statutory duty and common law duty were so separate and substantial a matter as to affect the general rule that the plaintiff having obtained judgment should have the costs.  On the other hand, it may be said that the disputes concerning the factual complaints against the plaintiff’s performance as the principal of the School underlying the summary dismissal were quite a distinct part of the case that took up significant time and costs.  It is in recognition of the fact that the plaintiff had failed in relation to 7 out of the 15 complaints and in relation to the overall justification for summary dismissal that we made a substantial reduction and ordered the defendant to pay only 60% of the plaintiff’s costs. Furthermore, the plaintiff had in principle a claim for the whole of the costs of the counterclaim which was dismissed by the judge.  To avoid the need for apportionment we have treated the costs of the counterclaim as part of the overall costs below.  It follows that the reduction imposed on the plaintiff’s entitlement to the costs of the action itself was in reality more than 40%.

10.The defendant has failed to provide any specific basis as to why the proportion of costs awarded should be 30% rather than 60%. We note that the trial judge ordered the plaintiff to bear only 70% of the defendant’s costs below even though the defendant was successful before his Honour.  In all the circumstances we consider the order we made on a nisi basis for the defendant to pay 60% of the plaintiff’s costs to be fair and appropriate.  We decline to vary the costs order nisi in §65(2).

11.It seems to us that subject to a minor exception the defendant’s application has substantially failed, and that the defendant should therefore pay the plaintiff the costs of the summons, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Written submissions by Mr Erik Shum and Ms Yvonne Leung (acting on a pro bono basis after Notice of Setting Down), instructed by Messrs. Ho, Tse, Wai & Partners assigned by DLA, for the Plaintiff (Appellant)

Written submissions by Mr Harrison Miao, instructed by Messrs. Stephenson Harwood, for the Defendant (Respondent)