Russell Peter Brown and Others v. Edward Eugene Lehman

HCA 959/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 959 OF 2010

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D E C I S I O N

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1.Regarding the question of costs, I order the plaintiffs to pay the defendant the costs of the substitution summons of 9 May 2013 and the withdrawal summons of 22 July 2013.

2.The summons to rehear was taken out because of the fault on the part of the defendant in not appearing at the hearing on 13 May.  So the costs of that appearance will have to be borne by the defendant.

3.The defendant is also ordered to pay the plaintiffs the costs of the summons to set aside the substitution order including the costs of the initial correspondence and the initial supporting affidavit(s).  But the plaintiffs shall pay the defendant the rest of the costs for the preparation and argument of this summons before and after its amendment, which, of course, will not take place now. 

4.The defendant will also pay the plaintiffs the costs of the amendment summons dated 19 June 2013.

5.On the question of whether there should be a certificate for one junior counsel or a certificate for two counsel, I take into consideration Mr Barlow’s submission before the Court of Appeal that the substitution of the 3rd plaintiff will have no effect on the Court of Appeal’s decision in the current appeal.  However, I think it is more important to note that the Court of Appeal has adjourned the hearing of the appeal because of what may happen in this rehearing of the substitution summons.  It is something that the Court of Appeal regarded as significant.  Furthermore, it is the plaintiffs’ stance until 22 July that they were going to contest the rehearing summons and maintain the substitution.  That stance was only changed on 22 July by the issuance of the withdrawal summons.

6.Bearing in mind the significance of this substitution issue as understood by the Court of Appeal and despite Mr Barlow’s submission to the contrary before it, I think the rehearing summons is a matter of importance to the possible outcome of the Court of Appeal’s decision.  In the light of that, I order that there be certificate for two counsel for today.  That would include the preparation for today’s hearing which would have taken on a different colour had there been no withdrawal summons.

7.On the costs of the rehearing summons, I would also provide that such costs shall include the preparation by the defendant to argue that there is merit in the application for rehearing the substitution summons, but shall exclude the costs for preparing a substantive argument of the plaintiffs’ substitution summons.  That is in line with what Mr Liu has submitted to me, although I think this formula may pose difficulty to the taxing master.  I am sure the parties will behave reasonably on the question of taxation and will make the task as manageable as the situation would allow when it comes before the taxing master.

Mr Harry Liu, instructed by Howse Williams Bowers, for the 1st to 3rd plaintiffs

Mr Barrie Barlow SC and Mr Chan Pat Lun, instructed by Miller & Peart, for the defendant