Read the full judgment text of HCCT 69/2010 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 28 February 2011 before Deputy High Court Judge L. Chan.
Construction and Arbitration — Costs — Arbitration Ordinance (Cap. 341) s.23(3) — Discretion on costs — Settlement offers including non-Calderbank offers — Whether Arbitrator may take into account any written offer in costs discretion — Article 18 Domestic Arbitration Rules — Validity and clarity of Calderbank offers — One-off question of construction — Leave to appeal — Whether question of general public importance — Swire Properties test applied. The defendant made multiple settlement offers to the plaintiff, including a second offer proposing a lump sum with a request for a reasonable cost estimate. The plaintiff rejected these offers. The Arbitrator exercised his broad discretion under the Arbitration Ordinance and Domestic Arbitration Rules, taking the offers into account in the costs award, ordering costs before 23 July 2008 to be paid by defendant and costs after that date by the plaintiff. The plaintiff applied for leave to appeal contending the second offer was not a valid Calderbank offer and so should not have been considered. The court held that the question was a one-off construction question and not of general public importance; the Arbitrator had a wide discretion to consider any written offer under Article 18; the second offer was sufficiently clear and reasonably rejected; and the Arbitrator’s conclusion was not obviously wrong. The plaintiff’s application for leave to appeal was dismissed with costs. A subsequent appeal was also dismissed (CACV56/2011).
Legal issues: Whether the Arbitrator was entitled to take the second offer into account in costs assessment · Whether the question raised involved general public importance or was a one-off construction question
Outcome: Plaintiff's application for leave to appeal dismissed with costs payable to defendant.