Dr Choy Khai Meng and Another v. Chua Guan-hock, Sc

HCMP 2122/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2122 OF 2012

(ON AN INTENDED APPEAL FROM HCA NO. 72 OF 2011)

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BETWEEN

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Before: Hon Kwan and Fok JJA

Date of Judgment: 6 December 2012

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.On 24 February 2011, the defendant applied by summons to stay the plaintiffs’ libel action against him in favour of the High Court of Singapore on the grounds of forum non conveniens. That summons was heard by Suffiad J on 25 and 26 October 2011 and, by his judgment handed down on 12 March 2012, he dismissed the stay application and made an order nisi that the defendant pay the plaintiffs the costs of the application and of the hearing in any event.

2.Each party applied to vary the costs order nisi and these applications were heard by Suffiad J on 20 April 2012.  By his Ruling on Costs handed down on 8 May 2012, Suffiad J:

(1) varied the costs order nisi to the extent sought by the plaintiffs, namely to make the costs of the stay application including the hearing be to the plaintiffs to be taxed and paid forthwith with a certificate for two counsel; and

(2) dismissed the defendant’s application to vary the costs order nisi, which had sought an order that the costs of and occasioned by the application for a stay, up to and including the first day of the hearing, should be to the defendant as being costs wasted by the plaintiffs’ change of stance during the hearing of the stay application.

3.The defendant, being dissatisfied with the Judge’s disposition of the variation applications, applied for leave to appeal against his Ruling on Costs by summons dated 22 May 2012, which the Judge dismissed on 14 September 2012.

4.The defendant now applies to this court, by summons dated 28 September 2012, for leave to appeal against the Ruling on Costs on the grounds set out in the draft Notice of Appeal annexed to the summons. The court has received a Skeleton Argument for Leave to Appeal dated 28 September 2012 in support of the application and the Plaintiffs’ Skeleton Submissions dated 12 October 2012 in opposition.  Pursuant to RHC O.59 r.2A(5)(a), the court may determine the application without a hearing on the basis of written submissions only and we consider it is appropriate to do so in the present case.

5.The intended appeal relating only to costs left to the discretion of the Judge, leave to appeal is required by reason of s. 14(3)(e) of the High Court Ordinance, Cap. 4, and such leave will only be granted if the intended appeal has a reasonable prospect of success.

6.As is made clear in Hong Kong Civil Procedure 2012 Vol. 1 at para. 62/2/11 (p. 1097), this court will not interfere with a judge’s exercise of discretion in the award of costs unless it is shown he failed to exercise the discretion, or exercised it on a false principle, or did not exercise it judicially or the exercise of discretion was demonstrably flawed.

7.The first proposed ground of appeal is that the Judge misapprehended the facts and evidence.  This contention arises from the fact that, on the first day of the hearing of the stay application, the plaintiffs’ leading counsel informed the court that the plaintiffs would limit their claim to publication (which was by two e-mails) in Hong Kong and would also limit their claim for damage to reputation to the plaintiffs’ reputations in Hong Kong.  The defendant contended that this was a change of stance by the plaintiffs and applied to the Judge for an adjournment to consider amending the application to make it on a broader basis to include an alternative application to strike out the action.

8.The defendant contends the Judge proceeded on an incorrect hypothesis because, it is said, his assumption that the plaintiffs’ abandonment did not and would not have affected the application for a stay was speculative and unsupported.

9.We do not accept that this proposed ground of appeal is reasonably arguable because we do not agree that the Judge misapprehended the position or proceeded on an incorrect hypothesis.  In paragraphs 17 and 18 of the Ruling on Costs, the Judge set out and referred to clear statements by the defendant’s leading counsel that, even if the defendant had known about the plaintiffs’ change of stance earlier, he would still have pursued the stay application.  The adjournment application having been refused – and, quite rightly, there is no application to appeal against that decision, which was a matter of case management – the defendant then had a choice either to withdraw the stay application and argue the costs position on the basis of the change of stance or to proceed with the stay application.  He chose to take the latter course, entirely consistently with statements of his leading counsel.

10.The second proposed ground of appeal is that the Judge fettered his discretion by applying the rule that “costs follow the event”. It is contended that his award of all the plaintiffs’ costs of the stay application was unfair and disproportionate and therefore contrary to the underlying objectives of the CJR.

11.The underlying premise of this contention is that the plaintiffs changed their stance in the action by abandoning any claim in respect of publication of the e-mails in Singapore or any claim to damage to their reputations in Singapore.  It seems to us that, even accepting it is arguable that there was a change of stance by the plaintiffs (which the plaintiffs do not accept), it is highly material that the defendant proceeded with the stay application after the application for an adjournment was refused and also expressly indicated, through counsel, that even if the claim were understood to be limited to Hong Kong publication and reputation, the stay application would nevertheless still be pursued.  It was open to the defendant to withdraw the application for a stay on the grounds of forum non conveniens when the adjournment application was refused but he did not do so.  Not having done so and having proceeded with the stay application and lost, we do not accept that it is reasonably arguable that the Judge fettered his discretion as contended.

12.The third and fourth proposed grounds of appeal relate to the variation of the costs order nisi whereby the Judge ordered the immediate taxation and payment of the costs of the stay application.  By the third proposed ground of appeal, the defendant argues that those costs were clearly not severable and self-contained from the costs of a wider application to dismiss or alternatively stay the action (which the defendant has now made by summons dated 6 September 2012).  That being so, it is contended that the taxation and payment of the costs of the stay application should await the outcome of the wider dismissal/stay application by the 6 September 2012 summons.

13.By the fourth proposed ground of appeal, the defendant contends that there is a material change of circumstances since the Ruling on Costs in that it is now clear from the defendant’s 5^th affirmation supporting the 6 September 2012 dismissal/stay summons that the defendant is relying on much of the evidential material filed in support of the original stay application such that there is a clear overlap between the costs of the 6 September 2012 summons and the original stay application.  Thus, it is contended, the costs of the original stay application should be reserved to be dealt with together with the costs of the 6 September 2012 summons.

14.We do not think either of these proposed grounds of appeal is reasonably arguable.  The assessment of whether the costs of the stay application before him were distinct and severable was a matter for the Judge and we do not consider there is a reasonable prospect of his exercise of discretion in respect of that decision being overturned on appeal.  Further, the re-use of earlier material from a failed interlocutory application in a subsequent interlocutory application does not seem to us to be a proper basis for delaying the disposition of an earlier set of interlocutory costs which are considered to be sufficiently self-contained to warrant immediate taxation and payment.  The re-use of earlier material from a failed interlocutory application may reduce the costs of preparing for a subsequent interlocutory application, but that is simply an advantage that accrues from the past history of the litigation.

15.For these reasons, we dismiss the application for leave to appeal against the Ruling on Costs.  Furthermore, since we consider the application to be totally without merit, we make a direction, pursuant to RHC O.59 r.2A(8), that no party may request this determination to be reconsidered at an oral hearing inter partes.

16.We order that the costs of this application be paid by the defendant to the plaintiffs.  The plaintiffs have filed a statement of costs for summary assessment in which they seek $59,367 by way of costs for this application.  We therefore grant the defendant leave to submit his response to that statement of costs within seven days hereof after which we shall make a gross sum assessment of the costs.

Written submissions by Mr Kenneth Lam, instructed by Winston Chu & Co., for the Plaintiffs/Respondents

Written submissions by Mr Clifford Smith SC and Mr John Hui, instructed by Iu, Lai & Li, for the Defendant/Applicant