Waddington Ltd v. Chan Chun Hoo Thomas and Others

HCMP 1454/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1454 OF 2013

(On an intended Appeal from HCA No. 3291 of 2003)

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BETWEEN

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DECISION

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Hon Lam JA (giving the Decision of the Court):

1.The Plaintiff applies for leave to appeal the decision of DHCJ Lok on costs in respect of the summons of 30 April 2013 for the evidence of a BVI law expert to be given by video conferencing facilities. The summons was heard on 15 May 2013. At the beginning of the hearing, counsel for the 1^st Defendant intimated to the court that the Plaintiff had refused to provide a copy of the expert report to the 1^st Defendant.  Upon the invitation by the judge, a copy of the report was then provided and the court stood down the matter for a short while to enable counsel for the 1^st Defendant to consider it.

2.After due consideration, counsel for the 1^st Defendant informed the court that his client would not oppose the summons.  The application was granted. However, the judge ordered that the costs of the hearing of 15 May 2013 be paid by the Plaintiff to the 1^st Defendant, with certificate for one counsel.  The judge also ordered that apart from that, costs of that summons shall be costs in the cause.

3.The judge made that order on costs principally because he held that the stance taken by the 1^st Defendant in requesting for a copy of the expert report (previously made in correspondence) was reasonable and that had the report been supplied earlier, the hearing would be unnecessary. Thus the judge gave the 1^st Defendant the costs of the hearing.

4.A decision on costs is a matter of discretion.  The Court of Appeal will only intervene when the judge exercises his discretion in disregard of established principle or relevant consideration or when his exercise of discretion is outside the generous ambit afforded to the exercise of such discretion.

5.Here, it is plain that the judge had taken the matters set out in Order 62 Rule 5 into account, in particular the conduct of the parties leading to the hearing of 15 May.  It is equally plain that the judge was entitled to conclude that the request of the 1^st Defendant for a copy of the expert report was reasonable.  We do not agree with the submission of Mr Lam (for the Plaintiff) that the contents of the report could not have any bearing on the decision of the 1^st Defendant whether to oppose the summons. In line with the underlying objectives in Order 1A, we take the view that the Plaintiff should have supplied a copy of the report to the solicitors of the 1^st Defendant before the hearing.  We cannot find any fault with the judge’s conclusion that had that been done, the hearing of 15 May would probably be obviated.

6.As regards the other costs pertaining to the summons, given the judge’s conclusion on the reasonableness of the stance of the 1^st Defendant, we do not see how he could be criticized for ordering such costs be costs in the cause.

7.We do not think the intended appeal against the judge’s decision on costs has any reasonable prospect of success.  We therefore refuse to grant leave.

8.Further, we are of the view that the application for leave is totally without merit.  We would order that no party may request the determination to be reconsidered at an oral hearing inter partes.

9.We also order the Plaintiff to pay the costs of the 1^st Defendant in respect of this leave application.  We would make an order nisi fixing such costs at $20,000.  Any party who wishes to seek to vary such order nisi should lodge written submissions within 7 days, failing which such order shall become absolute. 

Written submissions by Mr Justin Lam, instructed by Messrs Kao, Lee & Yip, for the Plaintiff

Written submissions by Mr Hectar Pun and Mr Richard Yip, instructed by Messrs Fairbairn Catley Low & Kong, for the 1st Defendant