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

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

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BETWEEN

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DECISION

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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:

(1)  the defendant shall bear SEKSL’s costs of the Second Summons, such costs shall be taxed if not agreed, with certificate for two counsel;

(2)  There be no order as to the costs of the Amendment Summons.

(“the 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:

(1)  SEKSL’s costs of the Second Summons be summarily assessed on indemnity basis, with certificate for two counsel, and be paid forthwith;

(2)  Alternatively, SEKSL’s costs of the Second Summons be taxed forthwith on indemnity basis, with certificate for two counsel, and be paid forthwith.

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:

(1)  There be no order as to the costs of the Second Summons;

(2)  Alternatively, the costs of the Second Summons be reserved.

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:

(1)  Should the costs of the Second Summons be reserved?

(2)  If not, should SEKSL be entitled to its costs of the Second Summons?

(3)  If so:

(a)  Should SEKSL’s costs be taxed or summarily assessed?

(b)  Should SEKSL’s costs be taxed forthwith if summary assessment is not adopted?

(c)  Should the defendant be ordered to pay costs forthwith?

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:

(1)  SEKSL’s claims for injunctive relief and/or damages be dismissed; and

(2)  SEKSL has no locus standi as plaintiff to represent the Representees and the action herein be dismissed.

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:

(1)  the Writ and Statement of Claim herein be struck out and the action dismissed on the grounds that it is scandalous, frivolous or vexatious, or it may prejudice or embarrass the fair trial of the action, or it is otherwise an abuse of process of the court;

(2)  alternatively, this action be stayed pending the conclusion of ongoing criminal and regulatory investigations of SEKSL and any of the Representees;

(3)  alternatively, SEKSL be prohibited from continuing this action as a representative action.

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:

“Since the Defendant intends to appeal the CA Judgment to the CFA (and has 14 days remaining in which to file an application for leave to appeal), in the interests of saving cost and time, we suggest that it is appropriate to wait until the intended appeal to the CFA is disposed of before any directions are made by his Lordship in respect of the continuation of this action and seek his Lordship’s agreement to the same.”

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:

“1. The Court does not accept any application for stay by letter.

2.  […]

3.  The Court direction dated 11 September 2024 still stands.”

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:

“The Defendant shall inform this Court on or before 21 October 2024:

(1)  Whether she wishes to pursue the Second Summons;

(2)  If so, the directions she seeks to obtain on the further conduct of that application.”

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:

“1. Parties shall endeavour to reach agreement on the directions to be sought in relation to the Second Summons […]

2. They shall inform the Court by 1 November 2024:

(1)  their agreed directions; or

(2)  their respective proposed directions with reasons in support.”

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:

“the Defendant have leave to lodge with the Court and serve on the Plaintiff supplemental skeleton submissions on […] the Second Summons within 28 days after the Court of Appeal’s decision on the Defendant’s leave to appeal to the CFA application”

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:

“there be liberty to apply following the Court of Appeal’s decision on the Defendant’s application for leave to appeal to the CFA.”

29.SEKSL’s solicitors did not agree to the above new paragraph, but agreed that the following paragraph be added:

“there be liberty to apply in the event that leave is granted by the Court of Appeal for the Defendant to appeal to the CFA.”

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:

“[…]

Our client accepts your proposed amendment to the directions, however, since there may be two rounds of leave to appeal, we propose a further amendment to the directions as follows:

(1)  the Defendant have leave to lodge with the Court and serve on the Plaintiff supplemental skeleton submissions on the Second Summons within 28 days after the Court of Appeal’s decision (or the Court of Final Appeal’s decision in the event that the Defendant subsequently applies for leave to appeal to the Court of Final Appeal) on the Defendant’s application for leave to appeal to the CFA;

(2)  […]

(3)  […]

(4)  […]

(5)  there be liberty to apply in the event that leave is granted by the Court of Appeal (or the Court of Final Appeal, as the case may be) for the Defendant to appeal to the CFA.”

(original emphasis)

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:

“[…] We were willing to countenance what is effectively a stay pending the decision of the Court of Appeal on your client’s leave to appeal application, since the leave application had already been issued and a decision could be expected in the near future. Your proposed further amendment is a bridge too far.

Further and fundamentally, lest it be forgotten, the Second Summons is your client’s application and once initiated must be pursued or withdrawn, not warehoused for some future uncertain event.

[…]”

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:

“(1)  the Defendant have leave to lodge with the Court and serve on the Plaintiff supplemental skeleton submissions on the Second Summons within 28 days after the Court of Appeal’s decision on the Defendant’s application for leave to appeal to the Court of Final Appeal;

(2)  […]

(3)  […]

(4)  […]

(5)  there be liberty to apply following the Court of Appeal’s decision on the Defendant’s leave to appeal application.”[2]

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:

(1)  In paragraph 9 of the defendant’s submissions dated 27 December 2024, her counsel stated that:

“If the CFA grants Ms Bradley leave to appeal, the outcome of the appeal may well impact this Court’s determination on the Second Summons, especially since Ms Bradley will also rely heavily on Prismall in due course in her skeleton submission to the CFA. Accordingly, this Court is invited to consider whether, in the interests of case management, it may be appropriate to delay the determination of the Second Summons until such time that Ms Bradley’s appeal to the CFA has been disposed of.”

(emphasis added)

(2)  In paragraph 4 of the defendant’s reply submissions dated 14 February 2025, her legal representative stated further that:

“It should also be noted that Ms Bradley’s pending application for leave to appeal the CA Judgment to the CFA is ongoing, with Ms Bradley having filed detailed written submissions to the CFA on 7 February 2025. Ms Bradley shall defer to the Court’s decision on whether or not to defer determination of the Second Summons pending the disposal of the CFA proceedings.”

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:

(1)  A stay of the action pending her application for leave to appeal to the CFA, and, if leave is granted, pending the determination of the appeal; and

(2)  An extension of time for her to file Defence and Counterclaim in this action to 28 days after the determination of the aforementioned application for leave to appeal, or if leave to appeal is granted, to 28 days after the determination of the appeal.

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:

“[…]

[The Temporary Stay] has the effect of deferring not only the client’s defence and counterclaim, but also our clients’ respective applications to vary the cost order nisi in respect of the Second Summons. The Temporary Stay is justified solely on the ground that, if our client’s appeal to the CFA succeeds, all time and costs spent on these ongoing matters will be wasted.

In this regard, we point out that any cost order made in the respect of the Second Summons would need to be revisited (or appealed)  in the event that the appeal to the CFA succeeds. This is, in fact, one of the reasons why, in the variation application, our client seeks an alternative order that the costs of the Second Summons be ‘reserved’: In short, it is premature to determine who should bear the cost of the Second Summons while the appeal is still afoot.

[…]

In the interests of saving time and costs, we invite your client to agree to the Temporary Stay and vacate the call-over hearing scheduled […] by consent”

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:

(1)  Whether a “free-standing” injunction can be granted to a corporate plaintiff if it could not pursue a claim for the tort of harassment as a matter of law?

(2)  Can a corporate entity bring an action on its own based on the common law tort of harassment?

(3)  In a representative action commenced pursuant to Order 15 rule 12 of the RHC for the common law tort of harassment, if the representative plaintiff is a corporate entity, does it have the “same interest” as the individual representees under Rule 12(1)?

46.On 23 June 2025, the Appeal Committee handed down its Reasons for Determination ([2025] HKCFA 13), in which it was explained that:

“5. Though the matter comes before us at an interlocutory stage, the issues raised are not confined to procedural ones. There is room for examining whether the Court of Appeal was correct in holding that the Plaintiff could maintain the action by pursuing a “free-standing injunction” even if it actually had no cause of action in respect of the tort of harassment. The holding of the Court of Appeal, if correct, arguably extends the power of the court to grant injunctive relief beyond the principles affirmed in Wolverhampton City Council v London Gypsies and Travellers. It is a point of great general or public importance as such extension could have ramifications for the grant of injunctive relief in other areas of law as well.

6.  The Points of Law determined by the Judge are questions of great general or public importance and this Court may usefully provide guidance on the development of the tort of harassment in light of the first instance judgments in this jurisdiction.

7.  We are satisfied that the result of the appeal would turn on the answers to these questions and those answers could make significant contributions to the just disposal of the litigation.”

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:

“13. After hearing from the parties’ counsel at the hearing on 19 June 2025, after hearing submissions, the CFA granted Ms Bradley leave to appeal, not only on two of the questions of great general or public importance set out in the Notice of Appeal—namely, the Locus Issue and the CA’s findings on representative actions at §§58(3)  & 68(ii)  of the CA Judgment (the “O.15, r.12 Issue”)—but also on the [free-standing injunction] Issue.

14.  The appeal before the CFA (the ‘CFA Appeal’)  has been set down for hearing on 20 November 2025.  Given the initial views of their Lordships expressed at the hearing of the CFA Leave Application, the CA Judgment will not be left undisturbed and may very well result in the 5.2023 Decision being restored.

[…]

28.  Further, pursuant to the initiative taken by the CFA to raise the [free-standing injunction] Issue as a question of great general or public importance and the views expressed by their Lordships at the hearing of the CFA Leave Application, their Lordships have clearly taken a preliminary view that the CA may well have taken the decision in Wolverhampton too far.

[…]

31.  Further, since this Court relied entirely on the CA’s findings on the O.15, r.12 Issue in dismissing §2 of the Second Summons (see §§35-38 of the decision on the Second Summons), if the CFA finds in favour of Ms Bradley on the O.15, r.12 Issue, Ms Bradley will have strong grounds to have the 5.2025 Decision set aside.”

(emphasis added)

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:

(1)  The Court of Appeal’s Judgment shall remain valid until it is reversed by the CFA;

(2)  Before the defendant’s successful appeal against the Court of Appeal’s Judgment, this Court would be bound by that Judgment, such that, in the event there were any issues or arguments which touched upon issues which had been ruled on in the Court of Appeal’s Judgment, this Court would have to follow such rulings.

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:

“More fundamentally, this Court is not in a position to assess the reasonableness or otherwise of Ms Bradley’s numerous offers to settle (or SEKSL’s failure to engage with those offers)  and whether SEKSL will ultimately achieve a result better than those offers until the Pending CFA Appeal is determined.”[6]

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:

“78. On the question of costs, a number of factors come into play, including (i)  the Plaintiff has successfully resisted the Defendant’s objections to the Amendment Summons, (ii)  the Plaintiff is successful in the appeal and in relation to the First Summons, but the success is largely based on the new Ground 3A which was not relied upon before the Judge, (iii)  the Defendant has failed in respect of §2 of the Amended Respondent’s Notice, while the rest of the matters raised in the Amended Respondent’s Notice are remitted to the Judge for fresh determination, and (iv)  the Defendant has improperly filed “Cross-Appellant’s Skeleton Arguments” on 9 February 2024 (purportedly on the basis that her Amended Respondent’s Notice amounted to a “cross-appeal”)  without leave of the Court. In all the circumstances, we consider that the fair order to make is that there be no order as to the costs of the First Summons, including the hearing before the Judge on 7 March 2023, the Amendment Summons and the appeal. We make an order nisi to this effect. […]”

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:

“8. In dealing with an application to vary a costs order nisi, the court considers the matter afresh. The applicant does not bear any burden to show that the court’s provisional views for making the costs order nisi are wrong or not justified. Having considered the matter afresh, we remain of the view that the fair order to make in the present case is that there should be no order as to the costs of the First Summons (including the hearing before the Judge on 7 March 2023), the Amendment Summons and the appeal for the reasons given at §78 of the CA Judgment. In so holding, we have taken an overall view of the proceedings before the Judge and in the Court of Appeal.”

(emphasis added)

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:

“This action is part of a wider dispute between the parties and the full correspondence evidencing the settlement negotiations in respect of this wider dispute are extensive. It is Ms Bradley’s case that, as with the correspondence referred to at Section D2 above, these correspondences will ultimately reveal that SEKSL has brought this action, and unreasonably insisted on pursuing it to trial, on the pretext of creating new law in order to pressure Ms Bradley into compromising, or otherwise stifling the legitimate worldwide claims that she has against SEKSL and other persons, including non-parties to the action.”

72.However, the defendant’s solicitor advocate then continued at paragraph 47 of the said submissions that:

“These correspondences are also relevant to the appropriate cost order on the Second Summons, but it will spare court time and costs to reserve costs and to address them at the end of the Action.”

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:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any interlocutory proceedings, it may, subject to this Order, order the costs to follow the event or make such other order as it sees fit.”

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:

“19. Summing up on the post-CJR position, I think the court has much wider discretion as to costs in interlocutory proceedings. Unlike other proceedings, the general rule of costs following the events do not apply. The court is entitled to take into account all the circumstances of the case, including those set out in rule 5, to make such order as it thinks fit. In the exercise of its discretion, the court may take the issue-based approach or may take into account merit of the parties’ case or the possible outcome of the action. The circumstances of interlocutory proceedings are so numerous that it is impossible to make any general rule. Costs to follow the event and costs be to the successful party’s costs in the cause are obvious options.

20.  As for the onus of proof, I think it is the same post-CJR as it was pre-CJR.  It must be the successful party’s burden to satisfy the court as to the type of costs order it is entitled.  To begin with, the successful party is assisted by the general rule of costs to follow the event.  By the mere fact of being successful, the successful party has discharged the evidential burden of showing it is entitled to costs.  Thus, effectively, the evidential burden is on the unsuccessful party to adduce sufficient evidence or argument that some other or lesser order is appropriate, such as no order as to costs, costs be to the successful party’s costs in the cause or costs to the unsuccessful party.  In the absence of evidence or convincing argument to the contrary, the successful party would also have discharged the legal burden.  Costs to follow the event would be the appropriate order to make.  If the unsuccessful party is able to discharge that evidential burden, it will be the legal burden of the successful party to show that he is entitled to the costs order which he seeks.  In reality, having heard the interlocutory application, it would be quite obvious to the court what costs order would best serve the justice between the parties without relying on the burden of proof.”

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:

“529. A summary assessment of costs on the disposal of an interlocutory application has two main features :-

(a)  The first involves immediacy of payment. The costs order most commonly made at present is for the party losing the interlocutory application to pay the costs of that application “in any event”, that is, at the end of the proceedings, whoever wins the case. Where there is a summary assessment of costs the party against whom the order is made is generally required to pay promptly, within a period such as 14 days after the order.

(b)  The second involves an assessment of the sum of costs payable in a summary and broad-brush way, rather than through a process of taxation whereby every item in the receiving party’s bill of costs is potentially subject to challenge. A summary assessment of costs occurs in lieu of a taxation and finally determines the amount of costs payable and receivable in respect of the application or matter in question.

530.  The first feature is important because experience in other jurisdictions indicates that it is an effective means of discouraging unnecessary and disproportionate interlocutory applications. As discussed in the Interim Report, the lack of immediacy of orders to pay costs ‘in the cause’ or ‘in any event’ weakens costs as a sanction against unwarranted applications or resistance. An order made in response to an interlocutory application which ought not to have been brought or resisted, requiring the losing party to pay at once the costs of that application summarily assessed, regardless of the eventual outcome of the case as a whole, gives the costs order a real impact.

531.  The second feature is aimed at enabling prompt payment to be exacted and avoiding the costs of a detailed taxation.

532.  Of course, not every case demands a summary assessment of costs. There will be interlocutory applications where the appropriate order would be for the costs to be ‘in the cause’ or ‘in any event’ or ‘reserved’. In other cases, the costs may be substantial and complex, making them unsuitable for final assessment summarily. And as discussed below, it may in some cases be appropriate to undertake a provisional summary assessment, ordering the assessed costs to be paid promptly while reserving to any party who feels aggrieved by the amount summarily assessed the right to seek a taxation and an adjustment of the sum payable or receivable at the end of the proceedings.”

81.The Working Party then made a recommendation as follows:

“The court should, whenever appropriate (whether as a response to an unwarranted application or unwarranted resistance to an application, with a view to saving costs or otherwise), make a summary assessment of costs when disposing of interlocutory applications.”

82.As a result, Order 62 rule 9A has been added to the RHC.  Paragraph (1)  thereof provides that:

“Where the Court has determined an interlocutory application at any stage of proceedings and orders a party to pay costs in respect of the interlocutory application to any other party, it may, if it considers it appropriate to do so but subject to rule 9C—

(a)  make a summary assessment of the costs by ordering payment of a sum of money to that other party in lieu of taxed costs;

(b)  make a summary assessment of the costs by ordering payment of a sum of money to that other party in lieu of taxed costs but subject to the right of either party to have the costs taxed pursuant to paragraph (2); or

(c)  order that the costs be taxed in accordance with this Order.”

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:

“No direction or order may be made under rule 9(4)(b)  or 9A(1)(a)  or (b)  for the payment of a sum of money if—

(a)  the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily;

(b)  the receiving party is an aided person, and the legal representative acting for the receiving party has not waived the right to any further sum of money in respect of the costs of the interlocutory application; or

(c)  the receiving party is a person under disability as defined in Order 80, rule 1, and the legal representative (or the next friend or guardian ad litem)  acting for the person under disability has not waived the right to any further sum of money in respect of the costs of the interlocutory application.

84.Paragraph 6 of Practice Direction 14.3 further provides that:

“Upon the disposal of any application, cause or matter, the Court may make one of the following orders in respect of the costs of and incidental thereto:

(1)  summary assessment of such costs […];

(2)  provisional summary assessment of such costs; or

(3)  taxation of such costs […]

The Court will give preference to the first two options where an interlocutory application is concerned, unless there is good reason not to do so, e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.”

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:

“9. Under the Civil Justice Reform, the court is encouraged to order immediate payment of costs of interlocutory proceedings and if possible by way of summary assessment of costs. The objective is to discourage unnecessary and disproportionate interlocutory applications. It is recognized that the lack of immediacy of orders to pays costs ‘in the cause’ or ‘in any event’ weakens costs as a sanction against unwarranted applications or resistance, see paras.529 to 536 of the Final Report of the Chief Justice’s Working Party on Civil Justice Reform.

10. By reason of Order 62 Rule 5(1)(aa), the court should take into account of the underlying objectives in Order 1A rule 1 in the exercise of its discretion. The objectives in rule 1(a), (c)  and (d)  are particularly relevant in the present context. In my view, the approach recommended by the Working Party should be adopted in furtherance of these objectives. Unwarranted interlocutory applications should normally be sanctioned by an immediate costs order.

11. In so saying, I must not be taken as saying that an immediate costs order should be made against every unsuccessful party in interlocutory application. I can readily see that there are cases where such party may have a proper justification for making an interlocutory application even though he fails at the end of the day. There could also be cases where the court considers that it would be more appropriate to make an order ‘in any event’ or ‘in the cause’ or to reserve costs.

12.  However, what I do say is that after the Civil Justice Reform the court is more astute to the impact of costs on legal proceedings and order for immediate payment of costs will be made more readily as a discipline against unmeritorious interlocutory applications.”

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:

“7. Whether or not the immediate payment of costs should be ordered is quintessentially a matter within the court’s discretion. The former practice was generally to order interlocutory costs to be ‘in the cause’, to be settled up at the end of the proceedings where orders which may have been made in favour of the respective parties might be set-off against one another and when the overall result of the proceedings can be taken into account. However, it is now generally recognized that such an approach may lead to procedural laxity and a damaging proliferation of interlocutory or satellite litigation. The first four of the underlying objectives are relevant to redressing such tendency by emphasising the need:

‘... (a)  to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court; (b)  to ensure that a case is dealt with as expeditiously as is reasonably practicable; (c)  to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings; (d)  to ensure fairness between the parties...’

8.  In pursuing the underlying objectives, it is of course necessary to factor in any possible unfairness or prejudice which the party against whom an order for immediate payment of costs is sought may suffer in consequence of such an order.”

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:

(1)  The Costs Order Nisi be varied to the extent that SEKSL’s costs of the Second Summons shall be summarily assessed, and the assessed costs shall be paid forthwith (i.e. within 14 days after assessment).

(2)  The defendant shall also bear SEKSL’s costs of the SEKSL’s Variation Summons and the defendant’s Variation Summons, which shall also be summarily assessed and paid forthwith (i.e. within 14 days after assessment).

(3)  The defendant shall, on or before 19 September 2025, lodge and serve her Statements of Objection in relation to:

(a)  SEKSL’s Statement of Costs in relation to the Second Summons dated 13 June 2025;

(b)  SEKSL’s Statement of Costs in relation to the defendant’s Variation Summons dated 30 June 2025; and

(c)  SEKSL’s Statement of Costs in relation to SEKSL’s Variation Summons dated 30 June 2025.

(4)  The summary assessments shall be conducted on paper no matter whether the defendant lodges her Statements of Objection within time.

(5)  The defendant’s Variation Summons be dismissed.

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)