Oriental Press Group Ltd. and Others v. Next Magazine Publishing Ltd. and Others
Read the full judgment text of HCA 12525/1994 on BabelCite. This High Court CFI judgment was delivered on 12 April 2001.
1. This ruling concerned with five matters arising in the course of the trial in respect of which costs were expressly reserved. They are as follows :-
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HCA012525A/1994 HCA12525/1994 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO.12525 OF 1994 -------------------
--------------------- Coram: Hon Yam J in Court Dates of Hearing: 15, 20 February, 7 and 10 March 2001 Dates of Written Submissions: 26, 27, 29 March, 4 and 10 April 2001 Date of Ruling: 12 April 2001 ------------------------------ RULING NO. 5 ------------------------------ 1. This ruling concerned with five matters arising in the course of the trial in respect of which costs were expressly reserved. They are as follows :-
The submissions of the parties were made through their solicitors' letters after their respective counsel were consulted. Both parties did not require a hearing. The agreed items 2. In respect of Item (1), the plaintiffs accepted that the defendants should be entitled to costs. The admission of Mr Jenkins' statement was not strenuously opposed and in fact the defendants accepted that Mr Jenkins had already died. Mr Ma's statement was not admitted after argument. 3. In respect of Item (5), the plaintiffs also agreed that the defendants should be entitled to costs since their application to withdraw the issue of malice from the jury in respect of the defence of fair comment was successful. 4. In respect of Item (3), the defendants on the other hand agreed that their application to put in the statement of Mr Vines was unsuccessful and the plaintiffs are entitled to the costs therefor. The disputed items 5. Under Item (2), the defendants' submission of no case to answer in respect of the 1st plaintiff was already dismissed with costs to the 1st plaintiff against the defendants. Thus no further order is required in respect of the 1st plaintiff. 6. In respect of the 2nd plaintiff, the defendants were put to their election as to whether or not to proceed with their application without calling any further evidence or to postpone making the application until a later time. The defendants decided to call their evidence. Mr Vines was called by the defendants but in my view, he did not assist the defendants in any material way in respect of the issue whether the 2nd plaintiff was the publisher of Eastern Express. The evidence adduced by the plaintiffs clearly indicated that not a single item of expenditure was ever paid by the 2nd plaintiff. It cannot therefore be said that the defendants must have considered there was at least a case to leave to the jury by reason of the additional evidence from Mr Vines concerning the 2nd plaintiff's role as the publisher. Further, the jury's verdict clearly indicated that they were unanimous in deciding that from the evidence available, the 2nd plaintiff was not the publisher. Otherwise the verdict should also be six to one in respect of the 2nd plaintiff. If the defendants have elected not to adduce any further evidence in respect of whether the 2nd plaintiff was the publisher, the court would have granted the application by reason of the state of evidence as aforesaid. In the end, I consider that the defendants should be entitled to the costs order of "the defendants' costs in the cause". Eventually the defendants succeeded in the action of the 2nd plaintiff. The defendants in effect are entitled to the costs of this application in respect of the 2nd plaintiff. 7. In respect of Item (4), the defendants indicated that Mr Wilson would not be called after Mr Vines had finished his evidence. Lengthy submissions were made. The court indicated that it is not an application from the defendants for a ruling that the defendants were not obliged to call Mr Wilson, since the court has no power to force the defendants to call a witness. However, the court agreed with the plaintiffs' counsel that it would be entirely unfair to the plaintiffs when they were given to understand all along that the defence would call Mr Wilson. Thus, they allowed Mr Vines to comment on Mr Wilson's notes in the course of Mr Vines' evidence. The plaintiffs also indicated that should such a course be adopted by the defendants, they would probably take a more drastic application. Having warned of such a situation, the defendants eventually decided to call Mr Wilson when the court expressed its misgivings of such a course to be taken by the defendants. I cannot see why the defendants should not bear the costs of the plaintiffs for the time spent in arguing over this matter, i.e. whether or not Mr Wilson should be called as a witness. Conclusion 8. Accordingly, I make the following orders of costs in respect of the aforesaid five matters, namely :-
9. There shall be certificate for two counsel for the aforesaid orders of costs in case anyone of them was heard in chambers.
Representation: Mr Cheng Huan, SC, and Mr Jason W.N. Pow, instructed by Messrs Iu, Lai & Li, for the Plaintiffs Mr Benjamin Yu, SC, and Mr Anderson Chow, instructed by Messrs Deacons, for the Defendants Please refer to CACV726/2001 for the relevant appeal(s) to the Court of Appeal. |
Further hearings and rulings under HCA 12525/1994