Secretary for Justice v. Hong Kong Cable Television Ltd

HCA 1398/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1398 OF 2005

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BETWEEN

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Before:  Hon Saunders J in Court

Date of Ruling on Costs:  22 March 2007

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RULING  ON  COSTS

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Background

1.On 6 February 2007, I dismissed the claim by the Secretary for Justice and made a costs order nisi in favour of Cable TV.

2.Cable TV was dissatisfied with the costs order, and by a sensible agreement the matter has been dealt with by way of written submissions.  Cable TV seek an order for costs, not on a party and party basis, but on a common fund basis.

3.Pursuant to O 62 r 28(2), unless stated otherwise, costs are assessed on a party and party basis.  By O 62 r 28(3), the court has a discretion to direct that costs shall be taxed on a common fund basis or on an indemnity basis.  Unless there is some special or unusual feature of the case there should be no departure from the general rule in O 62 r 28(2).  The power to award costs to be taxed on a common fund basis cannot be exercised arbitrarily or whimsically.

4.The “special and unusual features” upon which Cable TV rely revolve around the method by which the proceedings were brought.  Cable TV say that the proceedings should have been brought by way of Originating Summons rather than Writ of Summons.

5.The dispute began some six years ago.  It was plain at the commencement of the dispute that the case would be resolved by way of the interpretation of a transitional provision in the Broadcasting Ordinance.  On 23 March 2004, Cable TV wrote to the Treasury of the Hong Kong Government, who were dealing with the matter.  Treasury had, in a letter dated 10 February 2004, set out a comprehensive legal argument justifying the position taken by the Government.  Cable TV’s letter was a comprehensive analysis of its position running to over three pages.  The letter made it clear that if the Government did not accept Cable TV’s position, the matter would have to be resolved in court, and if that course had to be followed, costs would be sought.

6.On 30 May 2005, solicitors for Cable TV wrote to the Secretary for Justice, prior to the commencement of the proceedings, pointing out that the dispute would better be disposed of by way of Originating Summons as there was little factual dispute between the parties.  They pointed out that if the matter proceeded by way of Originating Summons there would be no pleadings or discovery, and legal costs would be substantially less.  The Secretary for Justice, by Senior Government Counsel responded on 1 June 2005, saying that counsel’s views would be sought on the appropriate mode of proceedings.  Apparently the advice was to proceed by way of Writ of Summons, for that was how the proceedings were commenced.

7.As that procedure was adopted it was necessary for the parties to go through formal pleadings and discovery was undertaken.  It was necessary to prepare witness statements.

8.Shortly before trial, Government Counsel suggested that the matter could be dealt with by way of agreed facts and that there was no need to call evidence.  That was plainly right.  Right from the beginning there had been no issue about the evidence, and Cable TV sensibly agreed.  At the end of the day, a matter which was listed for two days was dealt with in half a day.

9.I am satisfied that Cable TV were quite right in their original suggestion that the matter should have been dealt with by way of originating summons.  That procedure has been developed precisely to meet the type of situation that arose in this case where all that the parties required to resolve the issue between them was the interpretation by the court of the statute, in circumstances where there was no factual dispute.

10.What Cable TV seeks to do is, in effect, to punish the Government for the mode of proceedings it chose.  While I am satisfied that mode was not the best mode, and that it has incurred additional costs, I am satisfied that, because an award of party and party costs will compensate Cable TV for the additional work required by its solicitors, in the present case the mode of proceedings chosen does not constitute a special or unusual feature entitling Cable TV to costs on a common fund basis.

11.The order for costs is that costs will be on a party and party basis.

Ms Winnie Ho, Senior Government Counsel, for the Plaintiff

Messrs Lovells, for the Defendant