Read the full judgment text of CACV 197/2007 on BabelCite. This Court of Appeal judgment was delivered on 16 March 2009 before Ma CJHC, Tang VP, Lam J.
Civil law – costs – judicial review – public interest challenge – whether unsuccessful applicant should be ordered to pay costs – rule that costs follow the event – general principles governing departure from usual costs order in public law litigation – minimum wages – plight of cleaners and security guards – Trade Boards Ordinance Cap. 63 – whether COVID constitutes force majeure inapplicable – whether parties entitled to separate experts inapplicable – sub-contract terminated due to delay in progress inapplicable – oral contract in loan agreement inapplicable – whether unsuccessful applicant in judicial review should bear costs where public interest challenge made – starting point: costs follow the event even in public law litigation – public interest challenge can displace the general rule only if sufficiently meritorious – merits test: applicant's case must have had a real prospect of success / be properly arguable – adoption of test from R (Coroner House Research) v Secretary of State for Trade and Industry – Chu Hoi Dick v Secretary for Home Affairs (No. 2) followed – Oshlack v Richmond River Council considered – grant of leave to commence judicial review is insufficient to displace usual costs order – leave stage is preliminary; costs assessment is at final stage – threshold for leave: Po Fun Chan v Winnie Chung test of reasonable arguability / realistic prospect of success – Practice Direction SL3 para 1.8 reinforces that leave is not a weighty factor in costs determination – Applicant a Legislative Councillor with limited means – chilling effect argument and disparity in resources carry little weight where merits are absent – access to justice under Article 35 of Basic Law not undermined where challenge lacks merits – application concerned the Respondent's refusal to apply the Trade Boards Ordinance – first issue on appeal (renunciation of Ordinance) never contested by Respondent – second issue (evidence of renunciation) fell far short of supporting the argument – appeal wholly unmeritorious – application to vary costs order nisi dismissed – Applicant ordered to pay Respondent's costs of the appeal, to be taxed if not agreed, absolute – costs of proceedings below to be determined by Hartmann J.
Legal issues: Costs in public interest judicial review litigation where the challenge lacks merits
Outcome: Application to vary the costs order nisi dismissed; the Applicant must pay the costs of the Respondent in the appeal.
Cited by 9 cases · Cites 1 case