Cathay Pacific Airways Ltd v. Kwan Siu Wa Becky and Others

FACV No. 5 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 92 OF 2010)

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Between :

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Chief Justice Ma (giving the decision of the Court):

1.On 26 September 2012, the Court handed down judgment in the above appeal, answering the three questions before it in the way indicated[1] and stating that costs should be dealt with by way of written submissions.[2]  These the parties have provided.[3]

2.The three questions in the appeal[4] reflected the three issues before the Court.  The parties had limited success on the issues:-

(1) On the first issue, the respondents succeeded in full.

(2) On the second issue, the first and second respondents succeeded on this issue while the third respondent failed.

(3) On the third issue, the appellant succeeded, although, as reflected in the judgment, this was ultimately not resisted by the respondents.[5]

3.The written submissions of the parties have largely adopted a proportional and quantitative approach as to costs: the parties submit, with obviously different emphases, that the costs order should reflect the time that has been spent on each of the issues and also reflect the parties’ respective success on the issues.

4.We agree with the appellant’s approach insofar as it ought to be recognized that where discrete issues are raised in an appeal, generally the Court will, as a starting point in determining the question of costs, examine how the parties have succeeded (or failed) on these issues.  The Court will then take an overall view of the matter to arrive at a suitable order.  We use the word “overall” to emphasize that the Court will not generally go into a minute examination of whether each issue and each sub-issue and argument within each issue has been argued successfully or not by the parties.  Usually, an overall view of the justice of the case will serve as the best guide to determine the question of costs.

5.In the present appeal, it is clear that by far the most important part of the appeal was taken up by the first issue.  The second issue was much less complicated and the third issue still less so.

6.Taking into account the outcome of the appeal for the parties on these issues, we are of the view that the respondents have largely succeeded in the appeals, but they should not be entitled to all their costs, given the fact that they have failed (in particular the third respondent) on some issues (and that the appellant in turn has succeeded in part).

7.In these circumstances, we order that the appellant do pay 80% of the respondents’ costs in these appeals, such costs to be taxed if not agreed.  This proportion of costs will also apply to the costs of the various applications for leave to appeal to this Court (before the Court of Appeal and the Appeal Committee). The various costs orders in the courts below will remain undisturbed.  The respondents should also have the costs of this application for costs, such costs again to be taxed if not agreed.

Written submissions by Mr Mark Strachan and Mr Jeffrey Chau, instructed by Mayer Brown JSM, for the appellant

Written submissions by Mr Martin Lee, SC and Mr Erik Shum, instructed by Tsangs, for the 1^st, 2^nd & 3^rd respondents