Hutchvision Asia Ltd v. Asia Television Ltd

[Released by the Judge for publication]

1992, No.A6757

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

AND

BETWEEN

(By Counterclaim)

Coram: Godfrey J;

Date: 1st November 1993

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JUDGMENT

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1. I gave judgment on four interlocutory applications in this action on 8th September 1993. I said at the conclusion of my judgment that I considered that ATV was entitled to its costs of the various summonses before me, but indicated that if required the case could be restored to the list for further argument as to costs. The case has now been restored to the list for further argument as to costs, and it is on the matters ventilated before me in that further argument that I now give this judgment.

2. The first matter with which I have to deal is this: Ought I to provide, in the order to be made as a result of my judgment, for immediate taxation and payment of ATV's costs; or ought I to direct in accordance with the usual practice that the costs should be taxed only at the conclusion of the action? It is unusual to make a special order for immediate taxation and payment of costs on an interlocutory application but the court has jurisdiction to do so and will exercise it in a proper case. Where the court is affronted by the conduct of the losing party, it may well consider the case to be a proper case for what Miss Audrey Eu, Q.C. for HAL describes (accurately, I think) as a "penal" order. I do not regard this case as one in which a "penal" order of any sort would be appropriate; but that is not the end of the matter, for it seems to me there are other circumstances in which it may be right without seeking to "penalize" the losing party to make an order for an immediate taxation and payment of the costs of the successful party. One such reason might be the protection of the successful party, to ensure that any order for costs that he obtains will not be frustrated. It is said by Mr Henderson for ATV that, because of the impecuniosity of HAL, this is such a case.

3. But there are factors militating against that submission. First, as I indicated in my judgment given on 8th September 1993, HAL has a formidable case on the merits. And secondly, security for costs is already the subject of an order in ATV's favour. The security to be given, as the action progresses from stage to stage, will undoubtedly have to afford ATV security for the costs awarded to ATV as a result of its success on the present four applications.

4. Looking at the matter as a whole, I am simply not satisfied that the factors urged on me by ATV are sufficient to justify a special order for immediate taxation and payment of the costs. I have not overlooked that the applications (massively over-documented) took a long time to try, and I have not overlooked the fact that two of the applications made by HAL appear to have been prompted by the fact that ATV had itself applied for security for costs and other relief, and might not have been made at all except as a riposte to these. But I do not think these considerations sufficient to justify a special order, and I shall, therefore, direct the costs to be taxed and paid in any event, in accordance with the usual practice.

5. A second point arises, as to whether HAL and one Li Ka Shing (who is also a party to the action and who made one of the four applications on his own) should be directed jointly to pay all the costs. ATV say that the costs of all four applications should be borne jointly by HAL and Mr Li. It seems to me this would produce an unjust result. Fortunately, the parties are in agreement that it would be sensible to tax the costs of all four applications together. On that footing justice would be done, as I think, if the liability of Mr Li for the costs of those applications was limited to ref1ect the comparatively small part he played in them (I do not overlook that the other applications made by HAL were to some extent made on the back of Mr Li's application to which he was a party together with HAL). Doing what seems to me to be the right thing, I would make an apportionment and say that 30% should be the limit ofMr Li's contribution to the costs of these four applications. The remainder of the costs should fall exclusively on HAL.

6. That disposes of the matters which I have been asked to consider. But in case any suggestion is made that I should make any special order for the costs of today's hearing, I would indicate now that (unless I am persuaded otherwise) I would regard the costs of today to be treated just as part of the costs already dealt with; this is simply an adjourned hearing of the original applications.

Ms Audrey Eu Q.C., inst'd by Mls PC Woo & Co, for Plaintiff

Mr Henderson, of M/s Allen & Overy, for Defendant