Capital Rich Development Ltd and Another v. Town Planning Board

CACV 386/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 386 OF 2005

(ON APPEAL FROM HCAL 51 OF 2004)

______________________

BETWEEN

______________________

Before : Hon Stock and Cheung JJA and Chung J in Court

Date of Hearing : 14 November 2007

Date of Decision : 7 December 2007

______________________

D E C I S I O N

______________________

Hon Stock JA :

1.I agree with the judgment of Cheung JA.

Hon Cheung JA :

The applications

2.There are two applications before us :

(1)	an application by the Interested Party dated 21 February 2007 to vary the costs order nisi made by this Court that there be no order as the costs of the appeal between the Applicants and the Interested Party.  The Interested Party now asks for its costs of the appeal to be paid by the Applicants to be taxed if not agreed.
(2)	an application by the Applicants dated 13 April 2007 for an extension of time to file and serve the notice of appeal against the costs order of Chu J dated 31October 2006 who ordered the Applicants to pay the Interested Party’s costs in the Court below.  The Applicants ask that there be no order as to costs.

Overview

3.In substance the appeal by the Applicants on costs touches on the same subject matter as the application by the Interested Party.  I will deal with them together.

4.Chu J dismissed the Applicants’ application for judicial review and ordered them to pay costs to both the Respondent and the Interested Party. 

5.This Court allowed the appeal of the Applicants against the judgment of Chu J.  Despite their success on appeal, the Applicants do not wish to seek costs against the Interested Party in relation to the costs of the appeal and below.  Their stand is that there should be no order as to costs between them. 

6.The general principle is that an unsuccessful applicant in a judicial review will not be required to pay more than one set of costs if there were two or more respondents’ appearing.  An interested party has to demonstrate that there is a separate issue on which it is entitled to be heard or that it has a separate interest which requires separate representation before it is entitled to recover his costs : Shiu Wing Steel Limited v. Director of Environmental Protection and another (CACV 350 of 2003); PCCW-HKT Telephone Limited v. The Telecommunications Authority and Hong Kong CSL Limited and New World PCS Limited (Interested Parties) (CACV 60 of 2007) applying Bolton Metropolitan District Council and others v. Secretary of State for the Environment [1995] 1 WLR 1176.

7.The position is by now different because the Applicants are no longer the unsuccessful party.  

The Interested Party’s position

8.Mr. Dykes S.C., counsel for the Interested Party relied on Order 62 rules 7 of the Rules of the High Court and submitted that the Applicants, despite their success on appeal, should nonetheless pay the costs of the Interested Party because they had conducted the case against the Interested Party improperly or unnecessarily.

Order 62 rule 7(1)

9.Order 62 rule 7(1) provides that :

‘

Where in any cause or matter any thing is done or omission is made improperly or unnecessarily by or on behalf of a party, the Court may direct that any costs to that party in respect of it shall not be allowed to him and that any costs occasioned by it to other parties shall be paid by him to them.’

10.Mr. Dykes relies on DPP v. Denning [1991] 2 QB 532 which was concerned with section 19 of the Prosecution of Offences Act 1985.  The section provided that :

‘

(1)

The Lord Chancellor may by regulations make provision empowering magistrates’ courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.’

11.Nolan L.J. held that :

‘	… the word “improper” in this context does not necessarily connote some grave impropriety.  Used, as it is, in conjunction with the word “unnecessary,” it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly.’

The Development Scheme issue

12.Assuming that the same construction can be placed on the words “improperly and unnecessarily” in Order 62 rule 7, I do not consider that the Applicants had conducted the case improperly or unnecessarily so as to require them to pay the costs of the Interested Party. 

13.Mr. Dykes’ complaint is that the Applicants had included in their grounds for judicial review against the Town Planning Board an attack on the legality of the Development Scheme (‘the Scheme’); the Applicants’ case on the Scheme was that it failed to comply with section 25(3)(b) of the Urban Renewal Authority Ordinance (Cap 563) and was illegal; this was in substance an attack on the decision of the Interested Party who alone was responsible for the preparation of the Scheme; yet, no relief was sought against the Interested Party and it was not made a respondent to the judicial review proceedings.  The Interested Parties subsequently obtained leave to join the proceedings. 

14.The legality of the Scheme was an issue raised by the Applicants both before the Town Planning Board and Chu J.  However on appeal this point was not pursued upon.

15.In our judgment dated 18 January 2007 I dealt with the issue as to whether the Applicants should have challenged the decision of the Interested Party in relation to the Scheme as follows :

‘	81(3)	It is also not a valid argument to say that the Applicants should have challenged the decision of URA when it decided to publish the Development Scheme.  As Lord Steyn said in R (Burkett) v. Hammersmith LBC (HL(E)) [2002] 1 WLR 1593 at 1607C :
		“	In law the resolution is not a juristic act giving rise to rights and obligations.  It is not inevitable that it will ripen into an actual grant of planning permission.  In these circumstances it would be curious if, when the actual grant of planning permission is challenged, a court could insist by retrospective judgment that the applicant ought to have moved earlier for judicial review against a preliminary decision ‘ which is the real basis of his complaint’.” ’

16.Although Mr. Dykes submitted that this is not the proper way to look at the issue, the fact remains that there was no further appeal from our judgment. 

17.Further, in relation to the issue of illegality, in my view although this point was not pursued further after the hearing before the Town Planning Board and Chu J, it does not mean that this point was improperly or unnecessarily brought in the first place.  The Applicants who were represented by Senior Counsel regarded it as an arguable point.  There was certainly no previous decisions on this particular issue. 

18.In the circumstances I am not prepared to say that despite its success on appeal, the Applicants should nonetheless be ordered to bear the costs of the Interested Party. 

Extension of time

19.In relation to the Applicants’ application for extension of time their reason for not serving the notice of appeal within time was that there was an oversight on the part of the handling solicitor in issuing the notice of appeal.  I accept the explanation and in any event I prefer to deal with the application on its merits. 

Conclusion

20.I would grant an extension of time to the Applicants to serve and file the notice of appeal.  I would allow their appeal in relation to the costs order made by Chu J.  I would order that there be no order as to costs between the Applicants and the Interested Party in the Court below. 

21.I would further dismiss the application to vary the costs order in relation to the appeal. 

Costs of the two applications

22.I would make the provisional costs order that the Interested Party pay the Applicants the costs of the appeal against the costs order, and that there will be no order as to costs in relation to the application to vary our previous costs order. 

Hon. Chung J :

23.I agree.

Hon. Stock JA :

24.It follows that orders will be made in the terms proposed by Cheung JA at paragraphs 20 to 22 above.

Mr. Anthony Ismail, instructed by Messrs Fairbairn Catley Low & Kong, for the Applicants

Mr. Philip Dykes, S.C., instructed by Messrs Lovells, for the Interested Party