Re Llc
Read the full judgment text of HCMP 2656/2006 on BabelCite. This High Court CFI judgment was delivered on 16 July 2010.
1. Cases on costs for statutory will applications are rare in Hong Kong. The only reported decision is Re CYL [2007] 4 HKLRD 218 [1] . There, Lam J ordered that the costs of the Official Solicitor and the committee of the mentally incapacitated person, who made the application for the statutory will, to be borne by the patient’s estate [2] . The learned judge did not explain the costs order. It was not necessary for him to do so because costs were not an issue. Now is perhaps the first occa
Cited by 10 cases · Cites 1 case
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HCMP2656/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2656 OF 2006 ------------------------------
------------------------------ Before : Hon Poon J in Chambers (Not Open to Public) Dates of Written Submissions on Costs : 11 May, 3 and 23 June 2010 Date of Decision on Costs : 16 July 2010 -------------------------------------------- DECISION ON COSTS -------------------------------------------- INTRODUCTION 1.Cases on costs for statutory will applications are rare in Hong Kong. The only reported decision is Re CYL [2007] 4 HKLRD 218[1]. There, Lam J ordered that the costs of the Official Solicitor and the committee of the mentally incapacitated person, who made the application for the statutory will, to be borne by the patient’s estate[2]. The learned judge did not explain the costs order. It was not necessary for him to do so because costs were not an issue. Now is perhaps the first occasion where the court in Hong Kong is asked to adjudicate the question of costs in this area. 2.The matter arose in this way. 3.By Judgment dated 30 December 2009, I ordered a statutory will to be made on behalf of LLC, a mentally incapacitated person, under section 10B(1)(e) of the Mental Health Ordinance (“MHO”). The Reasons for Judgment was later handed down on 13 April 2010. What remains outstanding is the question of costs. Pursuant to my direction, the parties have lodged their written submissions. Their position is as follows. 4.The Official Solicitor did not seek any costs and made no comment on the submissions of Niece #2 and the Secretary. 5.Niece #2, the applicant for the statutory will, submitted that the Secretary should bear part of her costs and sought primarily an order that :
6.Alternatively, on the basis that the Secretary should not be made to bear her costs, Niece #2 sought an order that :
7.The Secretary, who participated in these proceedings as the Protector of Charities and parens patriae, sought an order that his and Niece #2’s costs be paid out of the Estate on a common fund basis. THE GENERAL PRINCIPLES 8.Section 52A(1) of the High Court Ordinance provides that subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of First Instance shall be in the discretion of the court and the court shall have the full power to determine by whom and to what extent the costs are to be paid. Costs in the proceedings brought under Part II of MHO, including applications for statutory wills, are thus in the discretion of the court[3]. That being a judicial discretion, it must be exercised on fixed principles, that is according to rules of reason and justice : see Hong Kong Civil Procedure 2010, Vol. 1, para. 62-2-6 at p. 1081. 9.In my view, the following principles are applicable. 10.First, as an overriding principle, the court should always exercise the discretion on costs judicially with a view to achieving a fair and just result on the facts of the case before it. In this regard, the court takes into account all the relevant circumstances. 11.Second, Part II proceedings are non-adversarial but quasi-inquisitorial. They are essentially protective in nature, which are taken for the benefit and protection of the persons believed to be incapable, by reason of mental incapacity, of protecting themselves and their property. Because of its special nature, the usual principles of costs in ordinary civil litigations do not apply to Part II proceedings : see In re Cathcart [1893] 1 Ch. 466, per Lord Halsbury at p. 471. 12.Third, it is the mental incapacity of the patient and his protection that necessitate the Part II proceedings. Thus always subject to the overriding discretion of the court, it is generally fair and just to order his estate to bear the costs of the proceedings. 13.Fourth, in exercising its protective jurisdiction under Part II, the court carries investigations and determines the matters before it fairly and expeditiously, always having regard to the patient’s best interest as the paramount consideration : see section 10A(2)(a) of MHO. The court expects the parties to act accordingly. Their role is to provide the court with all necessary information and submissions to facilitate the court in reaching a decision which is in the best interest of the mentally incapacitated person : see Re M, HCMP25/2005, unreported, 1 November 2005, per Lam J at para. 13. Viewed objectively, if a party has so conducted himself and has in the course of doing so acted bona fide in the interest of the patient and for his protection and property, he is entitled to reasonable costs from the patient’s estate even though his evidence or submissions are not accepted by the court. And the costs that he is entitled from the estate are normally assessed by the common fund basis : see Re C.E.F.D. [1963] 1 WLR 329 and Re D(J) [1982] 1 Ch. 237; applied in Re CYL, ibid. 14.This general rule reflects the court’s concern that appropriate applications and information relating to the patient should be brought to the court’s attention, and that the parties should not be discouraged from so doing in good faith by being penalized in costs. See In re Cathcart [1891] 1 Ch. 549 and Heywood & Massey: Court of Protection Practice 2009, para. 15-015. 15.Fifth, the patient’s estate is not at the mercy of the parties in costs. For the above general rule is always subject to the court’s overriding discretion and it may be departed from when circumstances justify so doing. While is it impossible to detail all the circumstances exhaustively, the parties’ conduct in the proceedings is plainly a relevant and indeed very important factor[4]. Some of the matters pertaining to conduct that are essential for consideration are :
16.Sixth, in assessing quantum, the court will consider if the costs incurred were reasonably proportionate to the nature and complexity of the issues involved. 17.Having set out the applicable principles, I now come to the parties’ contentions. TWO MAIN DISPUTES 18.It can be readily seen that the main disputes between the parties are :
I will address them in turn. (1) Whether the Secretary should bear Niece #2’s costs after 23/2/09 19.As will be recalled, the principal issue at the substantive hearing of the present application was whether the 2001 Will or 2006 Will truly represented LLC’s last testamentary wishes. Since the 2006 Will purported to bequeath LLC’s entire estate to charities, the Secretary, as Protector of Charities and parens partiae, plainly had a legitimate interest to participate in the proceedings. He was entitled to make all reasonable investigations and present to court all the necessary evidence and submissions that were germane to this crucial issue. 20.Niece #2 raised two arguments. 21.She first argued that the Secretary had unreasonably adopted an adversarial stance in conducting the proceedings overall. I disagree. 22.The Secretary’s participation in these proceedings with a view to protecting any valid gift to charities under the 2006 Will does not in itself render him an adversarial party. The evidence before the court, both factual and medical, was conflicting. By adducing the evidence as he did, the Secretary was simply presenting all the necessary information to the court on the issues pertaining to LLC’s last testamentary wishes. The Secretary was entitled to test Niece #2 and her witnesses under cross-examination. He was also entitled to make submissions on the aspects of the evidence which might cast doubt on Niece #2’s case and which could have gone to show that LLC might have intended to disinherit her relatives by executing the 2006 Will. 23.Niece #2 submitted that the Secretary had advanced a positive case that the 2006 Will was valid. I do not think he had. But even if he had, that would not have rendered him an adversarial party. The same is true for Niece #2. She did advance a positive case that the 2006 Will was invalid. That did not turn her into an adversarial party. 24.Niece #2 next argued that it was unreasonable for the Secretary to have pressed on with the substantive hearing which started on 24 February 2009. She submitted that the Secretary was entitled to carry out investigations prior to the commencement of the hearing. But through the investigations, the Secretary should have become aware that the 2006 Will was invalid and should not have pressed on with the substantive hearing. Again, I disagree. 25.As noted in the Reasons for Judgment, when assessing LLC’s mental condition, the court should have regard to both the factual and medical evidence. While Dr Wong’s evidence was of little assistance, the Secretary could not ignore the evidence of the bank officers and the solicitors. Being misled by LLC’s mental condition, they had remained adamant throughout the proceedings that LLC was of sound mind. In these special circumstances, the Secretary could not have accepted that LLC did not have the testamentary capacity when she purportedly executed the 2006 Will. The matter had to be tested and decided by the court. It was therefore not unreasonable for the Secretary to proceed with the substantive hearing. (2) Costs of the Application 26.The Application arose in this way. When Dr Wong was about to testify, Mr Burns SC, for the Secretary, told me that Dr Wong would like to supplement his evidence in chief. Dr Wong had been sitting in the court listening to the factual witnesses. He wished to supplement his evidence by dealing with several aspects arising from their oral testimony. I then indicated that it would be more desirable if Dr Wong could first reduce his further evidence into writing. Hence the Application, which was opposed and refused. 27.As I had observed in the Reasons for Judgment, Dr Wong’s approach to LLC’s mental capacity was materially deficient. Dr Wong’s supplemental report did not take his evidence any further. The Application was wholly unnecessary. The Secretary cannot recover his costs from the Estate and should bear Niece #2’s costs, to be taxed on the party and party basis. ORDERS 28.For the above reasons, I make the following orders :
29.Given the size of the Estate and the complexity of the issues involved, this is a suitable case for two counsel. I will accordingly give a certificate for two counsel to both Niece #2 and the Secretary.
Mr Horace Wong, SC, leading Mr Wycliffe Ho, instructed by Ma, for the Applicant Mr Ashley Burns, SC, leading Ms Sara Tong, instructed by Department of Justice, for the Secretary for Justice Official Solicitor, absent [1] No unreported decision has been cited. Apparently, there is none. [2] At para. 62, p. 230. [3] In England, costs under the Mental Capacity Act 2005 are now governed by rule 156 of the Court of Protection Rules 2007, which provides that where the proceedings relate to the patient’s property and affairs, the general rule is that costs of all parties shall be paid by the patient or charged to his estate, although the court may depart from this general rule if the circumstances justify doing so. In Hong Kong, there is no similar provision in MHO or the rules of the court. [4] See Order 62, rule 5(1)(e), Rules of the High Court. |
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