Nokia Corporation v. Tct Mobile Ltd

HCCL 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 19 OF 2011

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DECISION ON COSTS

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1.This was an application by the Plaintiff for specific discovery of three categories of documents pursuant to RHC Order 24 rule 7 and inspection of them.

2.In a Judgment handed down on 5 August 2013 (“Judgment”), this court:

(1)  refused the Plaintiff’s application concerning Category 1 documents (as defined in the Judgment),

(2)  refused the Plaintiff’s application concerning Category 2 documents (as defined in the Judgment), save for one sub‑category ie sub-category (e) and restricted the scope of this sub-category to co-op fund agreements referred to in paragraph 35(5) of the Amended Defence,

(3)  allowed the Plaintiff’s application concerning Category 4 documents (as defined in the Judgment), the same having been offered by the Defendant at the commencement of the hearing which offer was duly taken up by the Plaintiff.

3.In their written submissions, both parties, with varying degree of conviction, urged this court to look into inter alia the other side’s conduct in exercising its discretion on costs.

4.As far as the Defendant’s conduct was concerned, in my view, the offer regarding Category 4 documents had been properly made by Counsel, and indeed should have been made much earlier. This category consisted of documents already disclosed by the Defendant – all that the Plaintiff sought was for them to be disclosed and produced in electronic format, if existed.

5.As far as the Plaintiff was concerned, while this court was sympathetic to the dilemma it faced as explained in its affidavits, the application was unjustified and thus dismissed. It did appear from the history of the proceedings that the Defendant had alerted the Plaintiff to the various difficulties with the application; however, the alert had not persuaded the Plaintiff to reconsider the application.

6.In these circumstances, instead of dwelling on the past conduct of the parties, this court is minded to make a costs order which broadly reflects the “event” ie the Defendant has substantially but not wholly succeeded in resisting the application.

7.Looking at the matter in the round, this court would in the exercise of its discretion award 80% of the costs of the application to the Defendant. Although the same had been sought by the Defendant, this court is not minded to conduct a summary assessment of the Defendant’s costs. Its costs will have to be taxed if not agreed, with certificate for counsel.

Clyde & Co, for the plaintiff (written submissions only)

Minter Ellison, for the defendant (written submissions only)