Yiu Hon Lam v. Chan Yu Chun
Read the full judgment text of CACV 383/2007 on BabelCite. This Court of Appeal judgment was delivered on 12 March 2009 before Tang VP, Cheung JA and Lam J.
Civil procedure – costs – appeal – order nisi for costs – application to vary – Calderbank offer – without prejudice negotiations – costs follow the event – whether substantial winner should be deprived of costs for not prevailing on every point – defamation claim dismissed – defendant obtained 80% of costs below. The plaintiff brought a claim for damages for defamation which was dismissed, with the District Judge ordering the defendant to pay half of the plaintiff's costs. On the defendant's appeal, the Court of Appeal allowed the appeal in part, ordering the plaintiff to pay 80% of the defendant's costs below, and made an order nisi that the plaintiff pay the defendant's costs of the appeal. The plaintiff applied to vary that order nisi, relying on a Calderbank offer (no order as to costs), without prejudice negotiations, the defendant's failure to obtain 100% of costs below, and earlier inadequate settlement overtures. The court held that costs should follow the event. A Calderbank offer falling substantially short of what the successful party obtained does not shield the losing party, and without prejudice negotiations cannot be examined. Following Waddington Ltd v Chan Chun Hoo Thomas, the fact that a substantial winner did not prevail on every point is not necessarily a reason to deprive them of costs. The application was dismissed and the order nisi was made absolute, with the plaintiff ordered to pay the defendant's costs of the application, to be taxed if not agreed.
Legal issues: Whether the order nisi for costs of the appeal should be made absolute or varied
Outcome: Application to vary the order nisi dismissed; the order nisi that the plaintiff pays the defendant costs of the appeal is made absolute. The plaintiff must also pay the defendant's costs of the application.
Cited by 9 cases · Cites 1 case
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CACV 383/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 383 OF 2007 (ON APPEAL FROM DCCJ NO. 5351 OF 2005) ----------------------
---------------------- Before: Hon Tang VP, Cheung JA and Lam J in Court Date of Hearing: 6 March 2009 Date of Decision: 6 March 2009 Date of Reasons for Decision: 12 March 2009 --------------------------------------- REASONS FOR DECISION --------------------------------------- Hon Tang VP: 1.Although the plaintiff’s claim for damages for defamation was dismissed, District Judge Simon Leung ordered the defendant to pay half of the plaintiff’s costs. 2.The defendant’s appeal was allowed to the extent that the plaintiff was ordered to pay the defendant 80% of her costs below. 3.We made an order nisi that the plaintiff pays the defendant costs of the appeal. 4.This is the plaintiff’s application to vary the order nisi. 5.Several reasons have been advanced in support of the application. 6.First, the plaintiff had made a Calderbank offer to the defendant to settle the appeal on terms that there be no order to costs in respect of the trial and the appeal. 7.We were told that there was no response from the defendant to the plaintiff in respect of this Calderbank offer. I do not believe a party who has made an inadequate payment into court can complain if the other party did not respond to the payment into court. Nor should a Calderbank offer be regarded as the opening salvo in a negotiation. The plaintiff cannot complain if it had offered too little. In this case, the Calderbank offer fell substantially short of what the defendant had obtained from this court. 8.We were also told that there were subsequent without prejudice negotiations but that the content of such negotiation could not be disclosed to us. So much for that. 9.The second reason is that the defendant had not wholly succeeded because the defendant only obtained 80% of the costs of the trial instead of 100% she had asked for in the appeal. 10.In Waddington Ltd v. Chan Chun Hoo Thomas and Ors, unreported, FACV 15/2007, dated 14 November 2008, Bokhary PJ and Chan PJ said in their joint judgment (with the concurrence of the other members) on costs:
11.Here, the defendant was the real winner and her victory was substantial. In such circumstances, I do not believe she should be deprived any part of the costs of the appeal. 12.Mr Tibbo submitted that although she was the real winner, she had not won everything she wanted because she only got 80% of the costs below. But as Waddington Ltd shows that is not necessarily a reason for depriving her of some of the costs. Mr Tibbo also submitted that it was the defendant’s fault that she was unrepresented at the costs hearing below so she was unable to assist the learned judge. I do not believe that is a good reason to deprive her of any of the costs of the appeal. 13.Lastly Mr Tibbo referred to the fact that before the trial the plaintiff had offered to settle on terms that the defendant should pay him his costs then estimated at $230,000. I fail to see how it could assist the plaintiff. Then it is said that the defendant had failed to properly respond to the plaintiff’s settlement overtures. I believe it is undesirable to penalise the successful party on costs for not responding to wholly inadequate offers. It is better that costs should follow the event. Parties who want to be protected on costs should make adequate offers. When a plaintiff brings a claim it is salutary that he should know the general rule is that if he fails, he will have to pay the costs. Time and costs should not be spent investigating the ebb and flo of any negotiation which the parties might have engaged in. 14.I would make the costs order nisi absolute. The plaintiff must pay the costs of this application, such costs to be taxed if not agreed. The application is so devoid of merits that I have given serious consideration to ordering that costs should be paid on an indemnity basis. In the end I have decided not to do so. Hon Cheung JA: 15.I agree. Hon Lam J: 16.I agree.
Mr. Robert J.H. Tibbo, instructed by Messrs Henry Chiu & Partners, for the Plaintiff. Mr. Damian Wong, instructed by Messrs Chan, Tang & Kwok, for the Defendant. |
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