Ho Yuen Ki Winnie and Another v. Ho Hung Sun Stanley and Another

HCA 391/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 391 OF 2006

____________

BETWEEN

____________

Before: Hon Andrew Cheung J in Chambers

Dates of Written Submissions: 23 September, 7 and 21 October 2009

Date of Judgment: 4 November 2009 

_____________________________

JUDGMENT   (ON  COSTS)

_____________________________

1.On 29 April 2009, the Court handed down judgment on the 1^st defendant’s applications for specific discovery and for production of documents. In relation to the application for discovery, the Court granted part of the application only. The Court made a costs order nisi that the costs of the application for discovery be in the cause, with a certificate for two counsel. As regards the application for production of documents, the Court made no order, save that the costs of the application be to the plaintiffs in any event, to be taxed if not agreed.

2.By a letter dated 8 May 2009, the 1^st defendant applied to vary the costs order nisi in relation to the application for discovery of documents. He asked for an order that 70% (or such other percentage as the Court sees fit) of the costs of the application be to the 1^st defendant, to be assessed on a gross sum basis, with a certificate for two counsel.

3.Essentially, the 1^st defendant contends that he has been successful, to a substantial extent, with his application for specific discovery, even though the Court has refused to grant him some of the items applied for, and even though he has abandoned or revised some other items.

4.On the other hand, the plaintiffs seek to support the costs order nisi by pointing out that, in fact, many of the items applied for by the 1^st defendant have either been abandoned or been unsuccessful.

5.In making the costs order nisi, the Court observed in its previous judgment that both sides had been partially successful in relation to the application for specific discovery.

6.Having had the benefit of detailed arguments from the parties, and having considered the result of the 1^st defendant’s application for discovery more closely, the Court agrees with the 1^st defendant that “costs in the cause” does not fully reflect the extent of his success in the application. The Court has considered not only the number of items of documents it has ordered the plaintiffs to disclose, but also the substance of the arguments of the parties. Moreover, the Court takes into account that in order to obtain the order for discovery against the plaintiffs, the 1^st defendant has had to come to court. This was because the plaintiffs have steadfastly refused to make discovery of any of the documents applied for.

7.Having considered the arguments and having looked at the matter in the round, I believe a fairer order would be to give 50% of the costs of the application to the 1^st defendant, leaving the remaining 50% of the costs to be absorbed by the parties themselves regardless of the outcome of the litigation.

8.However, having studied the statement of costs for summary assessment and the breakdown of the number of hours spent by fee-earners lodged by the 1^st defendant with the Court, I am not minded to make any gross sum assessment. The costs claimed are huge in amount ($1.15 million in total) and many items and hours of work are said to have been expended on behalf of the 1^st defendant in relation to the discovery application. I am not prepared to make any gross sum assessment on the costs claimed. They should be examined in detail by a taxing master.

9.In the circumstances, the costs order nisi in relation to the discovery application is varied to read as follows: 50% of the costs of the application be paid by the plaintiffs to the 1^st defendant, to be taxed if not agreed, with a certificate for two counsel. The costs order nisi, as varied, is made absolute.

10.The costs of the application to vary the costs order nisi shall be regarded as forming part of the costs of the application for discovery and be dealt with accordingly.

Ho, Tse, Wai & Partners, for the plaintiffs

Ms Eva Y W Sit, instructed by Herbert Smith, for the 1^st defendant