Sir Elly Kadoorie & Sons Ltd (for and on behalf of Itself, Its Current and Former Officers, Employees and Agents, Including Its Legal Representatives, Messrs Simmons & Simmons) v. Samantha Jane Bradley
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HCA 518/2022 [2025] HKCFI 4041 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 518 OF 2022 ________________________ BETWEEN
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________________________ DECISION ________________________ A. INTRODUCTION[1] 1.By a Decision dated 2 May 2025 ([2025] HKCFI 1812) (“the Second Summons Decision”), this Court dismissed the Second Summons, and made the following costs order nisi:
2.By summons filed on 16 May 2025 (“SEKSL’s Variation Summons”), SEKSL applied to vary the Costs Order Nisi, and asked for the following orders:
3.By letter dated 30 May 2025, SEKSL’s solicitors informed the Court that it would no longer ask for indemnity costs. 4.By summons filed on 19 May 2025 (“the defendant’s Variation Summons”), the defendant also applied to vary the Costs Order Nisi with the following orders:
5.By the defendant’s written submissions, she indicated that she would abandon the “no order” limb of the application, and would only ask for “costs reserved”. 6.This Decision therefore has to deal with the following issues:
B. DISCUSSION B1. Should the costs of the Second Summons be reserved B1.1 The procedural history 7.Before I go into the defendant’s arguments in support of “costs reserved”, it would be helpful if I set out the relevant procedural history of the present case. 8.On 6 May 2022, SEKSL (for and on behalf of itself, its current and former officers, employees and agents, including its legal representatives) commenced the present action, and sued the defendant for harassment by, inter alia, repeatedly sending a large quantity of emails to such persons containing hostile, disparaging and groundless allegations. It claimed for the relief of injunction and damages. 9.On 3 February 2023, the defendant filed the First Summons, and applied under Order 14A rule 1 and Order 18 rule 19(1)(a) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”) for a declaration that, as a matter of law, a corporate entity has no cause of action against a person under the tort of harassment and, as a consequence:
10.Alternatively, the defendant asked for an order that, if SEKSL were permitted to proceed to act as the representative plaintiff in this action, the claims of all the Representees, except those of John Andrew Harry Leigh, be struck out on the grounds that, on the pleaded facts in the Statement of Claim, they have no common interest and/or cause of action against the defendant. 11.On 8 September 2022, the defendant took out the Second Summons pursuant to, inter alia, Order 15 rule 12(1) and Order 18 rule 19(1)(b) to (d) of the RHC, for an order that:
12.By a Decision dated 31 May 2023, this Court acceded to the defendant’s application under the First Summons, and proceeded to order that SEKSL’s claims herein be dismissed. By another Decision dated 25 August 2023, this Court further ordered, inter alia, that SEKSL shall bear the defendant’s costs of the action (including the costs of the First Summons and the Second Summons (including all costs reserved) with certificate for two counsel and the reserved costs of the Injunction Summons filed on 6 May 2022). Part of the defendant’s costs was ordered to be assessed on indemnity basis. 13.SEKSL then appealed to the Court of Appeal. 14.By a Judgment dated 26 August 2024, the Court of Appeal allowed the SEKSL’s appeal, and set aside the aforesaid orders of this Court ([2024] HKCA 747) (“the Court of Appeal’s Judgment”). 15.Since the Second Summons was not dealt with in this Court’s Decision dated 31 May 2023, the Court of Appeal remitted the Second Summons to this Court for fresh consideration. The defendant was directed to inform this Court by 9 September 2024 whether she wished to pursue the Second Summons, and to seek directions from this Court on the further conduct of that application. 16.The defendant’s solicitors then wrote to this Court on 9 September 2024, and stated, inter alia, that:
17.On 11 September 2024, this Court directed the defendant to report to this Court whether she had filed application for leave to appeal to the Court of Final Appeal (“CFA”) within 2 working days after the expiry of the appeal period. 18.On 16 September 2024, the defendant wrote to this Court directly although GPS Legal LLP was still her solicitors on record. She, among other things, asked for a stay of the action. 19.On 20 September 2024, this Court wrote back to the defendant, and made it clear that:
20.On 25 September 2024, the defendant’s solicitors wrote to this Court and confirmed that the defendant had filed an application for leave to appeal to the CFA. 21.In light of the above, on 26 September 2024, this Court asked SEKSL to indicate its view on the matter. 22.By letter dated 3 October 2024, SEKSL’s solicitors expressed their stance that no stay should be granted. 23.This Court therefore directed on 4 October 2024 that:
24.By letter dated 21 October 2024, the defendant’s solicitors informed this Court, inter alia, that the defendant would like to pursue the Second Summons. It was further suggested, however, that the Second Summons shall only be proceeded with after the Court of Appeal had given its decision on the defendant’s application for leave to appeal to the CFA. 25.This Court then directed on 24 October 2024 that:
26.On the same day, the defendant’s solicitors wrote to SEKSL’s solicitors for the purpose of proposing directions for their consideration. Among other things, it was suggested that:
27.SEKSL’s solicitors then replied on 28 October 2024, indicating their agreement in principle of the above proposed directions, subject to amendments to some other parts of the proposed directions which are not relevant for our present purpose. 28.On 30 October 2024, the defendant’s solicitors further suggested that the following paragraph be added to the agreed directions:
29.SEKSL’s solicitors did not agree to the above new paragraph, but agreed that the following paragraph be added:
30.What is particularly important for the present purpose is what happened next. 31.On 31 October 2024, the defendant’s solicitors wrote back to SEKSL’s solicitors:
32.Pausing here, it can be seen that it was already envisaged by the defendant at the material time that in the event the Court of Appeal refused her application for leave, she would go on to apply to the CFA directly for such leave, and that if the CFA proceeded to grant leave to appeal, that would, in her view, have an impact on the necessity of proceeding with the Second Summons. 33.However, SEKSL’s solicitors refused to accept the defendant’s suggestion. It was stated in their letter dated even date, among other things, that:
34.It appears that the defendant’s solicitors did not further reply to the letter of the plaintiff’s solicitors dated 31 October 2024, but wrote to the Court directly on the following day (1 November 2024), and reported that the parties have agreed to the following directions:
35.The aforesaid “agreed” directions were then accepted by this Court with minor amendments which are irrelevant for the present purpose. 36.Parties then proceeded to lodge and serve their written submissions. 37.Generally speaking, the content of their submissions on the Second Summons is irrelevant for the present purpose. Having said that, I would like to highlight the followings:
38.The Second Summons Decision was then handed down on 2 May 2025, by which the Second Summons was dismissed. The defendant did not seek to appeal against the Second Summons Decision. 39.In the Second Summons Decision, this Court did not deal with the defendant’s request to postpone the determination of the Second Summons at all, for the simple reason that there was no proper application made before the Court. In fact, such a request was made in contravention to the directions agreed by the defendant that parties shall lodge and serve written submissions on the Second Summons and that the Second Summons be disposed of on paper. Such directions must be taken to mean that the Second Summons shall be dealt with as soon as this Court could find the time to do so. Slipping in an argument as such was simply improper. 40.On 28 May 2025, the defendant took out a summons and asked for the following orders:
41.On 2 June 2025, SEKSL’s solicitors informed the defendant’s solicitors by letter that, while SEKSL had no objection for the postponement of the defendant’s filing of pleadings, SEKSL would oppose the defendant’s application for stay. 42.On 3 June 2025, the defendant’s solicitors replied that:
43.SEKSL disagreed with the defendant’s argument. Therefore, SEKSL’s solicitors, by letter of even date, invited the defendant’s solicitors to propose directions for the purpose of facilitating the substantive argument of the defendant’s application for stay. 44.However, the defendant’s solicitors did not insist on a stay in light of SEKSL’s stance. They therefore invited SEKSL’s solicitors to enter into a consent summons, in which the order for stay was not included. The SEKSL’s solicitors duly did so, and the call-over hearing of the defendant’s summons filed on 28 May 2025 was vacated on that basis. 45.On 19 June 2025, the Appeal Committee of the CFA granted leave to the defendant to appeal on 3 questions:
46.On 23 June 2025, the Appeal Committee handed down its Reasons for Determination ([2025] HKCFA 13), in which it was explained that:
B1.2 The defendant’s arguments 47.At the outset, it should be borne in mind that the defendant is no longer asking for an order of “no order as to costs” as the defendant’s Variation Summons initially contended. 48.The remaining purpose of the defendant’s application for variation of the Costs Order Nisi is to postpone the determination of the question of costs of the Second Summons until the end of the action. 49.The defendant relies on the following reasons. 50.First, it is alleged that it is premature for this Court to determine which party should bear the costs of the Second Summons while the CFA has not decided on the defendant’s appeal in relation to the First Summons. 51.To strengthen his arguments, the defendant’s solicitor advocate went as far as to submit[3] that:
52.Attention should be drawn to the highlighted part of the defendant’s submissions quoted above. It is not understood the basis on which the defendant’s solicitor advocate made the aforesaid submissions. It is trite that the granting of leave to appeal only means that the appeal is reasonably arguable. That does not necessarily mean that the appeal would be successful. Neither should that be interpreted as an indication as to the chance of success of the appeal. 53.I should further add that, even if the Appeal Committee had indeed expressed preliminary views on the issues involved, that does not mean that the full court, having heard the parties making full submissions, would necessarily hold the same view ultimately. 54.Even if at the end of the day the defendant’s appeal on the First Summons is successful, I do not agree that that should affect the costs of the Second Summons. 55.In this regard, it should be borne in mind that, as shown by the aforesaid procedural history, while the defendant had, at the directions stage and before the submissions on the Second Summons were lodged, raised the ideas that the Second Summons be dealt with after the determination of the application for leave to appeal by the CFA (and even a stay of the whole action), the defendant had never properly placed such ideas before this Court for determination[4]. On this matter, it worth referring again to the letter issued by the defendant’s solicitors to this Court on 1 November 2024 (see [34] above), by which this Court was informed that it was parties’ agreement that the first round of submissions would be lodged after the Court of Appeal has handed down its Decision on the defendant’s leave to appeal application. What this Court did not know at the time was that the defendant in fact had at one stage suggested but then retracted her idea that parties should avoid incurring costs on submissions on the Second Summons before the CFA has decided on the defendant’s leave to appeal application. 56.It should also be emphasized that, at the material time, the defendant should be taken to have been advised and agreed to proceed with the Second Summons on the basis that:
57.When the defendant had decided to proceed with the Second Summons on the above basis, I cannot see why this Court should withhold its ruling on the costs of the Second Summons pending the result of the defendant’s appeal to the CFA or even till the end of the whole action. In my view, the same approach should be adopted when it comes to the question of costs. 58.It should also be stated categorically that it is not open to the defendant to blame SEKSL for not agreeing to her suggestions to defer the determination of the Second Summons. It was up to her to put such a question before this Court so as to get a ruling. But she did not do so. It is not an excuse to say that she would like to save the costs to be incurred on the stay application. In any event, the defendant would have to face the consequence of deciding to pursue the Second Summons in such circumstances. 59.Neither do I think the defendant’s solicitor advocate is right when he submitted that in the event the defendant succeeds in her appeal in the CFA, she would have strong grounds to have the Second Summons Decision set aside. As I see it, the only way to “set aside” the Second Summons Decision is to appeal against such a decision out of time. However, as it is an interlocutory decision, leave to appeal is required. I have great doubt whether the defendant would be able to obtain leave to appeal out of time at all, given the fact that what the defendant would like the Court of Appeal to do would be academic, in the sense that, if SEKSL’s claim herein is struck out by reason of the defendant’s successful appeal to the CFA, no useful purpose would be served for the defendant to appeal against the Second Summons Decision. 60.Any suggestion that the “useful purpose” would be for the Court of Appeal to scrutinize the court order on the costs of the Second Summons would be futile because of the analysis above. 61.Second, the defendant submitted that while the defendant had made multiple offers to settle this action prior to the determination of the Second Summons, SEKSL had rejected all those offers. 62.With respect, it is not understood why this submission is made, since the defendant is no longer asking the Court to make “no order as to costs” in relation to the Second Summons. All that the defendant is hoping for is to postpone the determination of the issue on costs until after the conclusion of the action. 63.Indeed, even the defendant herself admitted in her written submissions dated 7 July 2025[5] that “the correct time to review all [correspondence between the parties] is upon the conclusion of the action”. Similar sentiment had been expressed by her solicitor advocate in his submissions dated 23 June 2025:
64.Furthermore, since none of the defendant’s offers which her solicitor advocate referred to relate to the Second Summons, it is a non-starter for her to rely on settlement offers when she argues on costs herein. 65.Insofar as it is her submission that her multiple offers to settle would have a bearing on the overall costs order of the whole action, such a submission is made to be rejected, for a subsequent costs order for the whole action would not affect the costs orders in relation to individual interlocutory applications which have been made and sealed. 66.This argument is therefore rejected. 67.I cannot leave this topic without making clear that I am of the view that it is incorrect, to say the least, for the defendant’s solicitor advocate to allege that the Court of Appeal has decided not to award SEKSL any of its costs for its appeal to the Court of Appeal owing to its conduct before the Court of First Instance and the Court of Appeal. What the Court of Appeal actually stated is as follows:
68.It can be seen that SEKSL’s conduct was not referred to as one of the factors which has “come into play” at all. 69.To complete the picture, it should also be mentioned that SEKSL had applied to vary the Court of Appeal’s costs order nisi but in vain. In the Court of Appeal’s decision on costs dated 29 November 2024 ([2024] HKCA 1070), Chow JA had the following to say:
70.Nowhere in the said decision did the Court of Appeal refer to SEKSL’s conduct. 71.Third, the defendant submitted at paragraph 46 of the defendant’s written submissions dated 23 June 2025 that:
72.However, the defendant’s solicitor advocate then continued at paragraph 47 of the said submissions that:
73.I do not think I need to go into those correspondence, except to express my view that they are irrelevant as far as the cost of the Second Summons is concerned. 74.By reasons of the aforesaid, I refuse the defendant’s application to reserve the costs of the Second Summons. B2. Should SEKSL be entitled to costs 75.Order 62 rule 3(2A) of the RHC provides that:
76.It is now well established that, in the post-CJR era, “costs follow the event” is just one of the options in an interlocutory application, but it is no longer treated as the general rule or the usual order. The court is entitled to take into account all the circumstances of the case, including those set out in Order 62 rule 5 of the RHC. 77.In Melvin Waxman & Another v Li Fei Yu & Another [2013] 6 HKC 424, To J held that:
78.In the present case, while the defendant has asked the Court to vary the Costs Order Nisi, she has only gone as far as the extent of asking the Court to postpone its determination on the question of costs. She no longer maintains that the Court should make “no order as to costs”. That being the case, once this Court has rejected her submissions that the costs of the Second Summons should be reserved, the only natural conclusion is that the Costs Order Nisi that SEKSL be awarded costs should be made absolute. 79.In any event, I do not think there exists any circumstances in the present case which renders it appropriate for the Court to make any costs order for the Second Summons other than one which awards costs in favour of SEKSL. B3. Taxation vs summary assessment 80.The rationale of summary assessment of costs in interlocutory applications can be found in the Final Report of the Chief Justice’s Working Party on Civil Justice Reform (“the Working Party”) as follows:
81.The Working Party then made a recommendation as follows:
82.As a result, Order 62 rule 9A has been added to the RHC. Paragraph (1) thereof provides that:
83.The provision of Order 62 rule 9A(1) on summary assessment is expressly made subject to rule 9C which stipulates in paragraph (1) that:
84.Paragraph 6 of Practice Direction 14.3 further provides that:
85.Since the introduction of the aforesaid new provisions, the normal practice of the Court in interlocutory applications has been to make summary assessment of costs and order for immediate payment of the assessed costs, unless the circumstances of a particular case justifies a departure from this practice. 86.In the case of Midland Business Management Ltd & Another v Lo Man Kui (also known as Howard Lo) [2011] 2 HKLRD 667, Lam J (as his Lordship then was) had the following to say:
87.Lam J’s decision was referred to by Ribeiro PJ in The liquidator of Wing Fai Construction Company Limited v Yip Kwong Robert & Others (2012) 15 HKCFAR 454. Having endorsed what Lam J stated, his Lordship further held that:
88.Coming back to Order 62 rule 9C(1) of the RHC, as SEKSL is apparently not an aided person nor a person under disability, paragraphs (b) and (c) thereof are inapplicable. 89.The remaining question is whether there is any good reason not to conduct summary assessment, in particular, whether there is any substantial ground for disputing the sum claimed for costs that cannot be dealt with summarily. 90.In this regard, it seems that the defendant is suggesting that the costs of the Second Summons are intertwined with the costs of the First Summons. 91.I do not agree. 92.As pointed out by SEKSL’s solicitors, pursuant to paragraph 13 of Practice Direction 14.3, a broad-brush approach will be taken by the Court in the summary assessment procedure, and the Court will not embark on a mini-taxation. 93.Further, the Court has had a lot of experience in apportioning costs between 2 or even more different summonses. I do not think such a need would create any difficult problem for assessing costs. Having said that, I do not incline to say rigidly that the costs of the First Summons and the Second Summons should be apportioned on a 50/50 basis across the board, even though that would be an appropriate starting point. 94.In my view, another reason why there should be summary assessment of the costs of the Second Summons is that this Court, having dealt with the summons for such a long time, is obviously in a much better position (and can assess costs much more efficiently) than any taxing master in assessing costs. In other words, much judicial resources (as well as parties’ money) would be saved if summary assessment is done rather than taxation which cannot be undertaken by this Court. 95.The defendant has not suggested that the half-way house approach (i.e. summary assessment with a right to taxation) should be adopted. In any event, I do not think it is necessary to provide for such a right. Although the amount of costs claimed by SEKSL is not small (more than HK$1.46 million), I do not think the matter is so complicated that warrant taxation after summary assessment. 96.To conclude, I agree that, pursuant to Order 62 rule 9A(1)(a) of the RHC, SEKSL’s costs should be summarily assessed rather than taxed. 97.Moreover, I cannot see why the defendant should be allowed to delay payment of the costs of the Second Summons. 98.The fact that SEKSL is not in urgent need of cash flow does not mean that it is fair for it to have to wait for payment of costs by the defendant. 99.I therefore further conclude that the assessed costs should be paid forthwith. C. ORDER 100.I therefore order that:
Simmons & Simmons for the plaintiff Mr Sonny Payne of GPS Legal LLP (solicitor advocate) for the defendant (for the written submission dated 23 June 2025) The defendant acted in person (for the written submission dated 7 July 2025) [1] Unless otherwise stated, this Decision adopts the definitions and nomenclatures used in the Decision dated 2 May 2025 ([2025] HKCFI 1812) [2] The formulation of paragraph 5 of the “agreed directions” was actually rejected by SEKSL’s solicitors who had revised the same (see [29] above), and such revised version had been accepted in principle by the defendant’s solicitors on 31 October 2024 (see [31] above). It is not apparent as to why the defendant’s solicitors adopted the old and rejected formula in their letter to the Court dated 1 November 2024 and presented it as an agreed direction. [3] The defendant’s written submissions dated 23 June 2025 [4] For the sake of completeness, it should be emphaisized that it was up to the defendant to take out a summons for stay upon her perusal of this Court’s reply dated 20 September 2024 (see [19] above). However, she did not do so. [5] At paragraph 33 [6] At paragraph 44 |
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Further hearings and rulings under HCA 518/2022