Hsbc Private Trustee (Hong Kong) Ltd v. Ho Yuen Ping Dorothy

HCA2717/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2717 OF 2008

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BETWEEN

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Before Deputy High Court Judge Coleman SC in Chambers

Dates of written submissions on costs: 7 July 2011

Date of Judgment: 10 August 2011

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DECISION ON COSTS

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1.In my Judgment dated 20 June 2011, I found for the plaintiff and made a costs order nisi that the Plaintiff have the costs of the action.

2.I also gave directions as to any variation of the costs order nisi to be sought by the filing of submissions by the parties.

3.The plaintiff filed written submissions dated 7 July 2011 seeking to vary only such part of the costs as was reserved to the trial judge by Suffiad J when he adjourned the trial dates from May 2010 upon the defendant’s raising the adoption issue.  The plaintiff asks for those costs to be payable on a higher scale, either on an indemnity basis or alternatively on the common fund basis.

4.The defendant is no longer represented by her former solicitors and counsel, but acts in person.  She has been served with the plaintiff’s submissions but has not provided any response to them.  In the absence of any submissions from or on behalf of the defendant, I nevertheless approach the application made by the plaintiff on its merits and in the exercise of my discretion.

5.The grounds upon which costs might be ordered upon an indemnity basis are well-settled.  Such an order might be appropriate in a case of bad faith or improper conduct, for example in the raising of a particular issue or the manner in which it is pursued.  I also accept that costs orders (on the varying bases of taxation) are part of the armoury available to the courts in seeking to promote the underlying objectives under the Rules, as set out in Order 1A.

6.In my view, the adoption issue was raised in circumstances and against a timing which do reflect well on the defendant.  The adjournment of the trial dates in May 2010 were caused by the raising of that issue late in the day, and in a form not yet properly pleaded.  There was then considerable delay in actually formulating any real point on the adoption issue.

7.Even when eventually pleaded, the pleading went against the expert evidence by then available, and the assertion of the lack of blood ties between the Deceased and the two children did not really go anywhere in the claim to relief. 

8.Indeed, it seemed to me that the whole issue was largely irrelevant, though smacking of a late invention to try to improve a case fraught with inherent difficulties, and the issue was not pursued at trial with anything like the sense of importance accorded to it on behalf of the defendant in applying to adduce extra witness statement material and when causing the adjournment of the earlier trial dates.

9.Nevertheless, the plaintiff was necessarily put to the extra expense in dealing with the issue, and in coming back for the trial on new dates.  Those extra costs need not have been incurred at all but for the raising of the issue which ultimately was not relevant, and even if relevant could and should have been raised at a much earlier time.

10.In the circumstances, in the exercise of my discretion, I will vary the terms of the costs order nisi as follows.  The defendant shall pay the plaintiff the costs of the action.  Those costs shall be taxed, if not agreed, on the party and party basis, save the costs reserved to me by Suffiad J in his order of 10 May 2010 which shall be taxed, if not agreed, on an indemnity basis.

Messrs Deacons, for the Plaintiff

The Defendant in person