Ww v. Lpq Formerly Known As Lln and Lsm and Others
Read the full judgment text of FCMC 8485/2019 on BabelCite. This Family Court judgment was delivered on 27 February 2026.
1. On 6 May 2025 the Court handed down its judgment on the ancillary relief claims of the Petitioner and the 1 st Respondent, and of the 1 st Respondent’s s. 17 Summons (“ the Judgment ”).
Cited by 5 cases · Cites 10 cases
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FCMC 8485 / 2019 [2026] HKFC 41 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 8485 OF 2019 ---------------------------- BETWEEN
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------------------------------------------------------------ J U D G M E N T ------------------------------------------------------------ 1.On 6 May 2025 the Court handed down its judgment on the ancillary relief claims of the Petitioner and the 1st Respondent, and of the 1st Respondent’s s. 17 Summons (“the Judgment”). 2.In respect of the costs of the proceedings, including all reserved costs, the order nisi on the Judgment was that there should be “no order as to costs”: Judgment, §§307 – 310. 3.After the delivery of the Judgment, two Corrigenda were issued to make corrections to it under the slip rule, on 9 May 2025 and 7 July 2025. 4.This further decision deals with an application brought by the Petitioner, R2 and R3 to seek further corrections to the Judgment under the slip rule, and a variation of the costs order nisi. 5.I will continue to adopt the abbreviations used within the Judgment, including referring to the Petitioner as “Husband” or “H” and the 1st Respondent as “Wife” or “W”. A The Application 6.The Husband’s Summons dated 31st July 2025 (“the Summons”) seeks (a) further corrections to the Judgment (paragraph 1 of the Summons); (b) an order that the Wife “repay or account to P in respect of the litigation funding of HK$2,365,000 which P has provided to R1 in respect of the various Orders herein” (paragraph 2); and (c) an order that the costs Order nisi “be varied so as to order that the costs of P, R2 and R3 of these proceedings (including all reserved costs) be paid by R1, to be the subject of summary assessment” (paragraph 3). 7.The Court heard from the parties on 26 September 2025, and directed written submissions to be filed to confirm and elaborate on their contentions. These submissions have been received and considered. I have also had regard to H’s submissions filed prior to and for the purposes of the 26 September 2025 hearing. 8.I will deal with the Summons in this sequence: Paragraph 1, Paragraph 3, Paragraph 2. B Paragraph 1 9.By Paragraph 1 of the Summons, the Husband asks for additional corrections/amendments to the Judgment as follows:
10.Paragraph 311 of the Judgment set out the Orders for ancillary relief. Paragraphs 311 (1) to (3) directed the transfer by H to W of the FMH at Taikoo, to be executed within 2 months of the Judgment. By paragraph 311(4), the Husband was ordered to pay to the Wife two lump sums which (as corrected by the 2nd Corrigendum dated 7 July 2025) are:
11.Pending this further judgment, neither of these sums has been paid by H. As noted, H is seeking a variation of paragraph 311(4) so that he can satisfy paragraph 311(4) with the transfer of one of the Kwai Chung properties to her. B1 Legal principles applying to “slips” in judgments or orders 12.Order 20 rule 11 of the Rules of the District Court (Cap. 336H) (“DCR”) provides that “Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on summons without any appeal.” The Court also has an inherent power to vary its own orders so as to carry out its own meaning and to make its meaning plain: Hong Kong Civil Procedure (2026 Edition), Vol 1, at [20/11/1]. 13.The principles applicable to the exercise by the Court of its power to correct errors in a judgment or order under O. 20 r. 11 are well recognised. In Lo Yuen Chong v IWS Environmental Technologies Ltd [2021] HKCA 89, the Court of Appeal allowed an appeal against the lower court’s refusal to correct arithmetical errors in an assessment of damages. In the course of his judgment for the Court, Lam J (as Hon G Lam JA then was), said this:
14.Lo v IWS was applied in the later Court of Appeal case of To Pui Kui v Ng Kwok Piu [2023] 5 HKLRD 278. There, the CA refused to apply the slip rule to a matter in which the court below had made an adverse costs order against unsuccessful defendants in circumstances where no application had been made for such an order. The Court said that the slip rule was not engaged, as the rule (and the Court’s inherent jurisdiction to correct errors) only permitted clerical errors in orders to be corrected “where the order does not, as a result of the error, properly reflect the manifest intention of the court appearing from its judgment… [and] to vary an order to carry out its meaning and to clarify that meaning.” Further, “Where the Court’s intention is clear and is accurately recorded, but that intention was wrong or mistaken, it is not open to the court to vary or amend that order. The proper course for an aggrieved party in that situation is to appeal.” (Paragraph 21.) 15.“Manifest” in this context means “easily noticed” or “obvious”: Chen Hongqing v The persons whose names are set out in the second column of the Schedule to the re-amended Writ of Summons filed on 26 March 2018 [2024] HKCFI 3658, per Recorder Fung SC, at [6]. B2 Analysis (a) Paragraph 228 – the golf club membership 16.It was common ground that the golf club membership is worth HK$880,000, and that it is held by OT Limited. OT Limited’s only other asset was the FMH, but the Court has been told this has already been transferred to W, pursuant to paragraphs 311(1) to (3) of the Judgment. 17.The mistake in the Judgment was that the Court assumed for the purposes of calculating H’s assets that the membership was in his name. It is not. OT Limited is a company held jointly by H and W. 18.Consistent with the intention of the Judgment, the easiest and cleanest way to achieve a correction is to order that W transfer her shareholding in OT Limited to H at no cost. W suggested this at the hearing on 26 September 2025. Mr. Hart, for H, said that this transfer would be “fraught with difficulties”, but he did not further elaborate on the nature of those difficulties. I cannot see how a simple share transfer will pose any difficulties at all. 19.Rather than adjusting the figures, which will serve no purpose and will lead to the same ultimate result in the lump sums to be paid, it is simpler to insert some words to record that OT Limited is the holder of the golf club membership and to direct that W transfer her share in OT Limited at no cost. This is consistent with the inclusion under the Husband’s assets of the FMH, which was also an asset of OT Limited (see Judgment, §228). To rebalance the respective asset-holding by HK$440,000 (i.e. moving 50% of the golf club membership value from the Husband’s side of the ledger to the Wife’s side) will not change the computation of the overall pool of matrimonial assets. 20.I therefore make the following corrections to the Judgment:
(b) Paragraph 258 – MPS and the loan against H’s insurance policies MPS 21.The Judgment refers to the various MPS orders for W’s personal expenses from §50 onwards. In summary:
22.One of the Orders on the Judgment was for H’s obligation under the MPS Order to make payments for W’s litigation funding to cease with effect from 1 May 2025: Judgment, §311(6). As noted at §65 of the Judgment, in his 16th Affirmation in support of the Variation Summons H asserted that he thought that his obligation to pay the MPS of HK$60,000 per month for W’s personal expenses ceased at the FDR, i.e. on 29 July 2021 and that he had received legal advice to that effect. I rejected that evidence, and further found that it must have become clear to H at the hearing of the Variation Summons in November 2022 that he remained under an obligation to pay the MPS support to W: Judgment, §§66 – 67. 23.On the assumption that no payments of maintenance for W’s personal expenses have been made by H from 1 August 2021 (i.e. the first payment day following the failed FDR) to 1 April 2025 (the last payment day according to the Judgment), that is a period of 45 months. At the rate of $60,000 per month, H has failed to pay HK$2,700,000 (again, for the avoidance of doubt, on the assumption that H has not made any such payments). W has filed multiple Judgment Summonses to enforce payment, and these are yet to be heard. 24.I recorded in the Judgment that the arrears of MPS may be substantial (Judgment, §259) but that it was not possible for the Court to quantify the amount, in part due to the fact that H refused to make any admission of non-compliance with the MPS Order (Judgment, §61) and his assertions made during and after the Trial. H had gone so far as to submit in his final written Reply that he had “paid the MPS and legal costs according to the best of his ability”: (Judgment, §59). That submission was doubtful, including because I found that H had dissipated matrimonial cash assets held by him following separation and after the July 2019 Order, which could, had they not been dissipated, have been applied by him towards satisfaction of the MPS Order and any arrears due under it (Judgment at §§213 – 214). 25.To the extent that the Husband considered that the Court erred in failing to quantify the amount of unpaid MPS and to include this in the list of his debts for the purposes of the asset division, this could not, in my view, amount to an accidental mistake or omission capable of being corrected under O. 20, r. 11. H’s application is an attempt by him to vary the judgment, which is impermissible by the procedure he has chosen. 26.The second aspect of paragraph 1(b) of the Summons is to argue that the Court failed to take into account the loans of HK$3,400,000 obtained by H against his insurance policies. 27.The remaining value assigned to these policies of HK$4,500,000, noted at §228 of the Judgment, was based on H’s evidence given in response to W’s MPS application in February 2024, namely that the surrender value of the policies at that time was HK$5,000,000 (see [2024] HKFC 29, at §59), and further assumed that the additional litigation funding of HK$500,000 made pursuant to the Court’s judgment and order dated 9 February 2024 had been funded by H taking out an additional loan against those policies, reducing the net value to HK$4,500,000. The borrowings against these policies were therefore factored-in, in arriving at H’s net asset position. There is no mistake or omission to be corrected. (c) Paragraph 259 28.It follows from the above that I refuse H’s request for the total assets as noted in Paragraph 259 (as corrected by the 7 July 2025 Corrigendum) to be reduced from HK$44,970,769 to HK$38,270,769. (d) Paragraph 306 29.By paragraph 1(d), H asks the Court to vary the Judgment by directing that part or all of the lump sums payable under it to W can be met by the transfer of the Kwai Chung unit 15E2. 15E2 was appraised to be worth, as at 25 December 2023, HK$4,600,000: Judgment, §129. It is held by LS Limited. 30.The Order to pay W two lump sums was part of the relief granted to W arising from the Court’s findings including as to the quantum of the total matrimonial assets net of liabilities, the earning capacities of the parties, and all other relevant factors. 31.An application by a party to vary relief by replacing an order for payment of a lump sum with a transfer of property is to vary a judgment, and is not a matter falling within the application of the slip rule. 32.Lastly, H asks that, as the FMH has been transferred to W pursuant to paragraphs 311(1) to (3), the Court should vary the Order (as modified by the second Corrigendum) to direct that W’s share in LS Limited be transferred forthwith. I decline to do so. The current Order is that H must first satisfy paragraph 311(4) by payments of the two lump sums. I see no basis for this to be modified, and it is certainly not a “slip”. 33.Paragraphs 1(b) to (e) of the Summons are dismissed. 34.The Court understands that Kwai Chung 15E2 is currently occupied by W’s company, LTLSB Limited, and H says that this company is not paying rent to LS Limited, the owner of the unit. H’s Summons does not seek an order for LTLSB Limited to vacate the property, and Hart Giles earlier Submission dated 3 June 2025 only asked a question as to why the Court in its Judgment had not made such an order: §3(c). 35.I can also appreciate that H may say that he is not in a position to pay the two lump sums to W, without selling one of the Kwai Chung properties, perhaps 15E2 itself. No sale can take place of any of the properties at the moment, as the Order on the Judgment requires the payment of the lump sums to be satisfied before the Form A Notices registered against them is to be discharged. 36.All of the parties have liberty to apply in respect of the implementation of the Orders on the Judgment so as to enable the much-needed clean break to be achieved. If H considers that he has good grounds to seek to vary the final Orders so as to enable the relief on the Judgment to be satisfied, then he should file an appropriate application to do so. C Paragraph 3 37.The present order on costs on the Judgment, as noted, is that there be no order i.e. that each party should bear their own costs. C1 The Law 38.The Court’s power to make costs orders stems from Order 62 rule 3(2) of the DCR:
39.The starting-point is that costs follow the event: HK v BD [2011] HKFLR 66 at [78], per Hartmann JA, citing Gojkovic v Gojkovic [1992] 1 All ER 267. In matrimonial cases, because of their particular dynamics, the exercise of discretion is broader-based than in other civil proceedings. 40.The proper approach in determining costs is that the discretion is to be exercised in a principled way with a view to reality and justice. In measuring who has been the successful party and the extent of his or her success, the court must examine the reality and justice of the case: YBL v LWS (No. 2) [2017] 2 HKLRD 783 at [9]-[10] (Lam VP, as Hon. Lam PJ then was). 41.The Court must take into account the factors set out in Order 62 rule 5(1) of the DCR: the underlying objectives in Order 1A, rule 1 (r. 5(1)(aa)) including the objective of promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings; the conduct of the parties (r. 5(1)(e)); whether a party has succeeded on part of his case even if he has not been wholly successful (r. 5(1)(f)); and any admissible offer to settle drawn to the Court’s attention (r. 5(1)(g)). 42.Order 62 rule 5(2) gives examples of conduct which may be taken into account, in the exercise of the court’s discretion, including whether it was reasonable for a party to raise and pursue an issue, the manner in which a claim has been pursued or defended, and whether a party who is successful on an issue has exaggerated his claim. Conduct both before and during the proceedings may be considered. However, pre-proceedings conduct will only be relevant where it has a direct causal connection to the later generation of costs: KS v ND [2013] EWHC 464 at [23] (Mostyn J). 43.The Judgment of Hon To J in KJ v KMLM and anor, (HCMC 4/2010, 21 May 2014, unrep, [2014] HKCU 1409), an ancillary relief case, encapsulated the relevant principles (footnoted citations of internally cited cases are omitted)
C2 The parties’ submissions The “event” 44.Neither H nor W (nor R2 or R3) contended that they had “won” in the sense of succeeding on the majority of issues. This is a fair position to take, having regard to the findings contained in the Judgment. 45.A few references can be given to illustrate this point. W claimed that H had dissipated cash assets. I accepted that claim, but did not accept the extent of the dissipation she alleged. Her claim was considerably exaggerated. Further, as explained in the Judgment, W’s s. 17 application succeeded but only in part: she won on H’s transfer of shares of LS Limited, which I found had been done with the intention of defeating W’s claim to them: Judgment §179, but she was unsuccessful in seeking to reverse the transfer of the Trademarks from LS Limited to R3: Judgment §178. W failed in her claim that H possessed other landed properties that he had failed to disclose to her or to the Court: Judgment §§143 – 146. She also asserted, without basis, that she held the London Property on trust for her sons: Judgment, §135. 46.Similarly, H has been successful on some issues but not on others. The corollary of W’s partial success on the s. 17 Summons is that H was only partially successful in opposing it. I found that both H and R2 must have been aware that the transfer of shares in LS Limited from H to R2 was at a considerable undervalue: Judgment §182. H was also unsuccessful in arguing that this was a short marriage, alternatively that the couple’s separation and the proceedings filed in 2003 were of relevance to the appropriate division of assets: Judgment §§8, 9, 298, 299. Without prejudice offers 47.Neither H nor W produced to the Court any Calderbank offers made prior to the Trial. This factor is therefore not relevant to the Court’s consideration of the Summons to vary the costs order nisi. Conduct 48.Both H and W accuse the other of being guilty of litigation misconduct. 49.H says that W’s misconduct in the litigation was “pre-planned, consistent and deliberate throughout the proceedings, from an early stage, including her performance at the hearing on 26 September 2025…”. H suggests that W’s behaviour has been consistently “inappropriate, unreasonable and insulting”, and that she has feigned illness for strategic purposes so as to obtain the sympathy of the Court. 50.H continues in his written Submissions with examples of W’s alleged misconduct:
51.H also refers to the fact that W refused to respond to H’s solicitors request for the parties to agree to the appointment of MDD (Mr. McDonagh) so that LS Limited could be valued, in advance of the Trial. Additionally, Mr. Hart (solicitor for P, R2 and R3) submits that, given the Court accepted the views of Mr. McDonagh and Mr. Chan (who was appointed to value the landed properties), the costs of calling them as witnesses in February 2024 should be borne by W. 52.For her part, W points to H’s non-compliance with the MPS Order, and his transfer of shares in LS Limited without notice to her. She asserts that H failed to engage in mediation or other negotiations which might have avoided a trial. She says that the appropriate order is for the current Order nisi to be maintained, i.e. No order as to costs. Her Submission alternatively says that she should be awarded costs of HK$3,000,000 plus compensation for her medical expenses of HK$2,000,000. She raises other points in her Submissions, including alleging that at one point H made a false report to the Hong Kong Police without good reason. 53.H, in his Reply Submissions, disputed all the allegations raised by W. C3 Analysis 54.These proceedings have been unnecessarily prolonged due to a number of factors. 55.The first of these is the sheer animus H and W have repeatedly shown towards each other in their written and oral evidence. A lack of respect by a couple towards each other following the breakdown of a relationship is not unusual, but in this case it has been particularly apparent, especially during the Trial. 56.As noted in the Judgment, by all accounts the parties were previously much better off financially speaking than they presently are and they each blame the other for the significant diminishment in their fortunes: Judgment, §34. The proceedings have, consequently, been beset by allegation and counter-allegation of why their separate and combined financial position has been reduced from what it was to what it is now. This resentment has fueled many of the steps taken by H and W during the litigation. For example, H insisted that W should be blamed for the loss of the Mainland business, and that the Court should take into account W’s loss in forex trading. I found against both of these contentions: Judgment, §§186 – 189. W repeatedly filed documents and made submissions to the effect that H had dissipated cash assets in the tens of millions of dollars. I accepted W’s case that H had dissipated matrimonial assets, but not to the extent that she claimed he had: Judgment §§213 – 214. 57.Having heard from the parties and considered their written Submissions, and further having reviewed the Judgment and the findings I made therein, I find that both H and W have been guilty of litigation misconduct. W’s conduct 58.First, W filed a very considerable number of interlocutory applications, the majority of which have been dismissed or withdrawn. The Court is entitled to consider this conduct as it is the opposite of procedural economy, and that it may well have resulted in delays and the postponement of the identification of the real issues in dispute. 59.An example of this procedural excess was what took place on the first day of the Trial, 16 October 2023. Despite the fact that the parties were well aware of the requirement to complete all interlocutory applications well in advance of the Trial, on Day 1 W pursued several such applications: an application for the admission of new evidence; an application for Mr. Hart to be prohibited from continuing to represent P, R2 and R3, on the ground of conflict of interest; and an application for the Trial to be adjourned. The application for Mr. Hart to be prohibited from acting had previously been made by W but not pursued (and was therefore dismissed). Additionally on 16 October 2023, W asked the Court to hear and determine her Judgment Summonses, despite the fact that they not been personally served on H. 60.As a result, the whole of Day 1 was taken up with argument on these late filed applications, and this contributed significantly to the Trial going part-heard, and the need for additional days in early 2024. 61.Secondly, I accept that the many of the hearing dates in January and February 2024 were inefficiently used, due to W’s failure to apply promptly either for legal aid or for further litigation funding. In the 9 February 2024 Judgment the Court accepted that W faced considerable challenges in representing herself after her previous solicitors were discharged, but it was her failure to act promptly after the October 2023 hearing to seek legal aid, or alternative means of securing representation, which is ultimately to blame. I do not accept that W was so overborne by the stress of the proceedings that she was unable to bring an application for further litigation funding during the hiatus between the October 2023 hearing days and the resumption of the Trial in January 2024, if necessary with the assistance of the Resource Centre for Unrepresented Litigants, or perhaps a lawyer prepared to give advice on a pro bono basis (they do exist). Her application for Legal Aid was not made until 3 January 2024, 2½ months after the adjournment of the Trial, and only 2½ weeks before the Trial hearing was set to resume. 62.I hasten to add at this point that I do not accept H’s submission that W feigned her mental or physical illness. W provided evidence from the hospital at which she had attended, and it is not possible for the Court to dismiss this evidence as unreliable nor to attribute improper motives to W simply because this took place during the days following resumption of the Trial hearing in January 2024. 63.Thirdly, however, I do accept that W failed to respond to H’s request for a timely valuation of LS Limited to take place. Although this might not have enabled the evidence to be completed in the days allocated i.e. 16 – 19 October 2023, the pre-trial acquisition of an expert report on LS Limited’s value would have enabled the Court to consider whether 4 days were sufficient as part of normal management of the Court’s resources. 64.In my view, W’s conduct has significantly contributed to the length of the Trial and the proceedings in general. H’s conduct 65.Nonetheless, I cannot accept H’s contention that he is blameless in his conduct during the proceedings. 66.First, H deprived W of financial support, contrary to the MPS Order, after the failed FDR in July 2021. Without finding that this was a deliberate attempt by him to force W to abandon the proceedings or to accept a settlement less than she might otherwise receive, his lack of financial support contributed significantly and adversely to the already heated nature of the proceedings and the conflict between the parties. 67.Secondly, H’s actions have also significantly contributed to the prolongation of the proceedings, including his transfer of significant matrimonial assets without notice to W. The most obvious of these was his transfer, at a considerable undervalue, of the shares in LS Limited. His refusal to acknowledge that this transfer was improper and agree to reverse it, prompted W to issue her s. 17 Summons. A significant proportion of the written and oral evidence was devoted to the s. 17 Summons and the issues arising from it. 68.Thirdly, there is the matter of H’s and R2’s case on the Trademarks. Although I refused to grant W’s application for the transfer of the Trademarks to be reversed, I rejected H/R2’s case that there was an unwritten understanding that the Trademarks had always belonged to R2: Judgment, §§173 – 175. I found that this part of H’s case (and R2’s support of it) was an invention, in order to protect the Trademarks from any claim by W to them: Judgment, §175. 69.Fourthly, although not explicitly asserted by W in her Submissions on the Summons, it is relevant to note the findings that H had failed to satisfy his duty of full and frank disclosure – Judgment, §211 – and that he had dissipated very significant cash amounts, so as to diminish the matrimonial pool: Judgment, §214. This is serious litigation misconduct, as it lessens the ability of the Court to perform its duty of achieving fairness in the awards it is asked to make. In my view, H was aware at all material times of the content of his duty of full and frank disclosure and the preservation of matrimonial assets and took deliberate steps which were in breach of it, in an attempt to frustrate W’s claim. C4 Conclusion on Paragraph 3 70.The Trial, and the proceedings generally, have taken far longer than should have been necessary for what could have been a significantly simpler case given the relatively modest assets involved. This has been due in part to H and W unnecessarily raising and pursuing claims which ultimately failed, and their dogged defiance of claims by the other party which succeeded. 71.R2 is not blameless in this. He could, and should, have accepted that the Trademarks were in fact LS Limited’s property all along. He must have appreciated that the shares in LS Limited were transferred to him at a time when he had become aware of the difficulties in H and W’s relationship, and that he was receiving them for considerably less than their true value. 72.In my view it would be unfair to conclude that either H or W is more culpable than the other. 73.Subject to one point, I therefore refuse H’s application for a variation of the costs order nisi so as to grant his, and R2’s and R3’s, costs of the proceedings. 74.The exception is that it is entirely fair for H to be reimbursed for half of the costs of instructing the SJEs appointed by the Court, including their evidence at the Trial. This is consistent with the Orders appointing counsel, including the Order dated 3 November 2023 which provided that the costs would be taken into account in the determination of H & W’s ancillary relief claims. 75.I do not accept Mr. Hart’s submission that it was unnecessary for the two experts to have given evidence. On the contrary, hearing from both of the SJEs was vital in the interest of fairness so that the Court’s questions on the valuations could be addressed and W (then unrepresented) could put her own questions to them. It is not irrelevant to note that the evidence of the two valuers was ‘linked’ insofar as the value of LS Limited on a net asset basis depended on the accuracy of the valuation of some of the landed properties (i.e. those held by LS Limited) which Mr. Chan was appointed to conduct. D Paragraph 2 76.By paragraph 2 of the Summons, H seeks an order that W repay or account to him for the amounts paid by him for litigation funding, which he says totals HK$2,365,000. D1 The law 77.All of the orders for litigation funding have been made following contested hearings, rather than by consent. The judges making the orders –their Honours CK Chan J, I Wong J, and myself as deputy judge, have applied the well-known authorities, including HJFC v KCY [2012] 1 HKLRD 95, and have concluded for the reasons set out in our respective judgments that W satisfied the burden of showing that she could not reasonably procure legal representation either from her own resources – by the deployment of her assets either directly or as a means of raising finance – or from publicly funded assistance. In each instance, the Court concluded that W should be provided with legal representation, to ensure the fair conduct of the proceedings and the efficient presentation by W of her case. 78.The Court retains a discretion to order reimbursement by the receiving party of some or all of the amounts paid pursuant to an order for litigation funding: see Currey v Currey [2007] 1 FLR 946 at [31] (Wilson LJ). It must be remembered that litigation funding is not to be considered a loan by the paying party to the receiving party. It is a form of maintenance: provision by the stronger party economically to the weaker party for the latter’s legitimate ongoing expenses. It enables the principles underlying the efficient and fair disposal of a court action to be fulfilled, including the need for each party to present their case with clarity and to ensure that all matters which should be presented to the Court, are presented, in order for justice to be done. 79.The Court has, in its 9 February 2024 judgment, referred to the difficulties which W faced without having legal representation, and the advantages to be gained if she was able to re-secure such representation: [2024] HKFC 29, at §§12, 31 – 32. With the assistance of her new solicitors and counsel, the Trial was able to be concluded in June 2024. 80.For the record, the Court was considerably assisted by her newly instructed solicitors, and her counsel Mr. Enzo Chow, a specialist matrimonial counsel, just as it had been by her previous solicitors and counsel, and by Mr. Andrew Hart’s representation of H, R2 and R3 and his command of the papers. The Family Court’s list is somewhat over-populated by litigants in person, and this poses significant challenges for the Masters and Judges. In high-conflict cases, the assistance of skilled and experienced lawyers is particularly welcome. 81.Having said all this, I am required to consider whether, in the circumstances of the case, H should be reimbursed some or all of the amounts he has paid under the various orders. For the following reasons, I am satisfied that he should be. 82.First, it is incumbent on any litigant to avoid incurring unnecessary costs. This is especially important where the litigant is being funded under an order providing him or her legal costs funding. I am not satisfied that W has, at all times, complied with this requirement. She has repeatedly changed solicitors, and, through them, has often instructed new counsel. Mr. Hart says that she has instructed 6 separate firms of solicitors during the proceedings. This must have resulted in greater costs being incurred, due to the requirement of newly instructed lawyers familiarizing themselves with the papers and issues in the case. 83.Secondly, W has contributed to the prolonging of the proceedings and the length of the Trial, by her own misconduct. Although I have not concluded that she should have an adverse costs order against her – including because H has also been guilty of misconduct which has had a significant adverse effect – it would be an unfair and unreasonable exercise of my discretion not to require her to reimburse H for at least those costs which would not have been incurred had she behaved entirely reasonably. The reasonableness of an applicant’s stance in the proceedings is a factor as to whether or not funding should be awarded in the first place: Currey v Currey at [21] (Wilson LJ), HJFG v KCY [2012] 1 HKLRD 95, at [81]. It follows from this that the reasonableness of the Wife’s conduct in these proceedings should be considered by the Court on an application for such funding to be repaid. 84.Thirdly, and despite these remarks, I am not satisfied that H should receive the entire sum he is seeking. He has contributed significantly to the length of the litigation by raising and pursuing points which I have found to be unmeritorious, forcing W to respond to them and to incur significant costs in doing so. To require W to repay all of the sums she has received from him pursuant to the Court’s MPS orders would not be fair. 85.The question then is what proportion of the litigation funding advanced under the various orders should be repaid by W and H. In my judgment, it is reasonable for W to repay 25% of the amount she has received for litigation funding under the Court’s orders. E Conclusion and summary of orders on the Summons 86.The Court therefore makes the following Orders on the Summons:
87.As H, R2 and R3 have succeeded in part on the Summons, I will order that they receive 50% of the costs of the Summons including previously reserved costs (if any), to be taxed if not agreed.
Mr. Andrew Hart, of Hart Giles, for the Petitioner and the 2nd and 3rd Respondents The 1st Respondent in person | |||||||||||||||||||||||||
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