'A' v. Director of Immigration
Read the full judgment text of HCAL 100/2006 on BabelCite. This High Court CFI judgment was delivered on 27 July 2009.
1. On 3 March 2009, this Court gave judgment on the assessment of damages payable to the four applicants for their unlawful detentions. The Court awarded, in favour of each of the applicants, general damages but not aggravated or exemplary damages. The Court made an order nisi giving the costs of the assessment to the applicants.
Cited by 3 cases
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HCAL100/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 100 OF 2006 ____________ BETWEEN
____________ AND HCAL 10/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 10 OF 2007 ____________ BETWEEN
____________ AND HCAL 11/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 11 OF 2007 ____________ BETWEEN
____________ AND HCAL 28/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 28 OF 2007 ____________ BETWEEN
____________ (HEARD TOGETHER) Before : Hon A Cheung J in Court Dates of Written Submissions : 10 June, 30 June and 6 July 2009 Date of Judgment : 27 July 2009 _______________________________ J U D G M E N T (O N C O S T S) _______________________________ 1.On 3 March 2009, this Court gave judgment on the assessment of damages payable to the four applicants for their unlawful detentions. The Court awarded, in favour of each of the applicants, general damages but not aggravated or exemplary damages. The Court made an order nisi giving the costs of the assessment to the applicants. 2.The respondent now seeks to vary the costs order nisi. The respondent relies on the third principle enunciated by Nourse LJ in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, 1214B, namely,
3.The respondent submits that the courts have been taking a more robust approach than before in departing from the general rule in appropriate cases. Various cases, both in private and public law, have been referred to the Court. 4.Essentially, the respondent argues that as the applicants have claimed but totally failed to get any aggravated and exemplary damages at the assessment, the applicants should be deprived of part of their costs. He argues that the claims caused a substantial increase in costs and the length of hearing. The respondent submits 50% of the applicants’ costs should be disallowed. It should be noted that it is not the respondent’s case that the applicants should bear any part of the respondent’s own costs. 5.The respondent argues that aggravated and exemplary damages are separate and distinct matters from general damages. The applicants’ claims for these heads of damages were without any basis, “unmeritorious” and “misguided”. 6.I have considered the very detailed written submissions placed by the parties before the Court. They go to many matters and arguments. For the purposes of deciding the application to vary the costs order nisi, I do not think I need to deal with them in any great detail. 7.It must be remembered that the third principle enunciated by Nourse LJ is not a rule of law. His Lordship recognized this when he said that the successful party “may be” deprived of the whole or a part of his costs if the case falls within the third principle. The Court retains a discretion here. 8.Although the Court has ultimately rejected the applicants’ respective cases on aggravated and exemplary damages, I do not find that those claims were unreasonably or unnecessarily made. Respectable and reasonably arguable contentions were mounted on behalf of each of the applicants, and plainly the claims for aggravated and exemplary damages were bona fide ones. 9.Moreover, although strictly speaking, aggravated and exemplary damages are distinct heads of damages that must be separately pleaded and proved, in cases of the present nature, very often questions of general, aggravated and exemplary damages cannot be realistically separated from each other. The applicable principles are intertwined. Indeed, one pertinent consideration for deciding whether to award aggravated or exemplary damages is whether the amount of general damages (or, as the case may be, the total amount of general and aggravated damages) to be awarded is sufficient by itself to reflect the gravity of the case. As a matter of fact, at the actual assessment, all three heads of damages were argued in conjunction with each other and the relevant facts were considered as a whole. 10.Having borne all arguments in mind and having taken into account all relevant considerations, I have come to the conclusion that the order nisi is indeed the right costs order to make. The application to vary the order nisi is refused, and the order is made absolute (with a certificate for two counsel). The costs of the application to vary form part of the costs of the assessment, and must be borne by the respondent, also with a certificate for two counsel. I also order that there be legal aid taxation of the applicants’ own costs. 11.I thank counsel for their assistance.
Mr Philip Dykes SC and Mr Hectar Pun, instructed by Barnes & Daly, for the applicants in all four cases Mr Anderson Chow SC and Ms Grace Chow, instructed by the Department of Justice, for the respondent |
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Further hearings and rulings under HCAL 100/2006