Lee Chick Choi v. Society of Wine Educators – Hong Kong Chapter and Another

HCMP 1203/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1203 OF 2013

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D E C I S I O N

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1.On 26 July 2013, I dismissed the plaintiff’s application for an interim injunction and awarded costs to the defendants to be summarily assessed. In my reasons for decision handed down on 2 August, I expressed serious doubt as to whether the plaintiff had a viable cause of action and held that the plaintiff had failed to show a serious issue to be tried. On 13 August, I assessed the costs on the papers and awarded $22,426 to the defendants.

2.This is the plaintiff’s application for leave to appeal against my costs order.  The plaintiff contended that I should have ordered each party to pay his own costs.  The plaintiff is absent but has filed written submission.  The hearing proceeded in his absence.

The legal principles

3.Leave to appeal will be granted if the applicant can show that there is reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospects of success involve the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’: SMSE v KL [2009] 4 HKLRD 125, para 17.

4.The Court of Appeal will not interfere with a judge’s exercise of discretion in the award of costs unless it can be shown that he (i) failed to exercise the discretion; (ii) exercised it upon a false principle; (iii) did not exercise it judicially; or (iv) the exercise of discretion was demonstrably flawed: Hong Kong Civil Procedure 2013, Vol 1, para 62/2/11, page 1106.

Application of the legal principles

5.The plaintiff has not sought leave to appeal against my refusal to grant the interim injunction and expressly stated in paragraph 12 of his affirmation affirmed on 7 August 2013 in support of this application that he did not want to appeal against this court’s order except for costs.  Despite that, all of the grounds set out in the plaintiff’s affirmation were directed at attacking my reasons for refusing to grant the interim injunction.  None of the grounds were directed at showing why my costs order has erred in law.  I therefore place no weight on the affirmation.

6.In his written submission, the plaintiff put forth more grounds.  I shall analyze them according to the exhibit numbers as set out in his written submission.  Exhibit 1 did not contain a ground.

7.With regard to Exhibit 2, the plaintiff contended that it was abnormal for this court to have given 7 days to the defendants’ solicitor (Mr Yu) who claimed to have 25 years’ experience to prepare a cost statement.  It was said that Mr Yu has learnt his lesson in subsequent hearings of this case and did not require 7 days anymore to prepare his costs statement.

8.It was not uncommon for the court to give the party receiving costs 7 days to prepare a costs statement. One can see this from many cases obtainable from the internet.  A party may need to consider the court’s reasons for decision before knowing what costs to claim.  The plaintiff has not suggested any prejudice to him by this court giving the 7 days to Mr Yu.  There is no merit in this ground.

9.With regard to Exhibit 2, the plaintiff claimed that Mr Yu had handed over some documents and papers to me without copying or handing them to him.  It was alleged that there was secret communication happening between me and Mr Yu leading to injustice and the unfair costs order and it was important for the Court of Appeal to find out.

10.Such were serious fabrications of the plaintiff against the court and an officer of the court.  If such things had happened as alleged, they would have formed grounds for appealing against the substantive order and not only the costs order.  There is no merit in this ground.

11.With regard to Exhibit 3, Mr Lee queried whether I have overlooked the details of Mr Yu’s statement of costs prepared for summary assessment of the costs of the hearing on 26 July 2013.  Mr Lee contended that on 26 July, I had dealt with his application served on 22 July, granting him leave to serve his affirmation in reply.  The costs order should have been “costs follow the event”.  He queried whether or not the $22,426 had included costs of his application.

12.Such contention was misconceived.  I have ordered on 26 July 2013 costs in favour of the defendants in respect of the interim injunction application and reserved costs on the originating summons and the summons for striking out.  Mr Lee’s application concerning filing of his affirmation in reply clearly fell within the “reserved costs” order.  A proper reading of Mr Yu’s costs statement would have revealed that Mr Yu has not gone beyond the terms of the costs order on 26 July.  This ground for seeking leave to appeal is totally unmeritorious.

13.Again under Exhibit 3, Mr Lee queried why, if I had deducted $200 copying charges, I should not also have deducted the time costs spent by Mr Yu on his clients for the manual work, communication including conference, telephone calls, letters and professional work incurred on the 200 pages.  Moreover, those 200 pages contained personal data of Mrs Lee which had nothing to do with the interim injunction.

14.I have given my reason when assessing costs, that insofar as photocopying was concerned, there was nothing relevant to the interim injunction application that needed to be copied.  Mr Yu had not copied anything to this court at the 26 July 2013 hearing.  It was, however, different when it came to other aspects of work.  I can see nothing inconsistent in not granting costs on photocopying but granting costs on his professional work relating to the 200 pages.  Without reading the contents (even briefly) a responsible solicitor would not know if the 200 pages contained relevant stuff and what advice to give.  It lied ill in the mouth of the plaintiff, after permitting his wife to flood Mr Yu with 200 pages of documents, to evade the consequences of a costs order. 

15.With regard to Exhibit 4, Mr Lee contended that despite my serious warning on 26 July 2013 to the parties not to file and serve any irrelevant documents, Mr Yu had instructed the 2^nd defendant to file and serve a total of 102 pages of emails and letters between the 2^nd defendant and the plaintiff’s wife with 328 pages of exhibits.  Mr Lee queried whether Mr Yu and the 2^nd defendant should be punished, presumably in costs.

16.Again, it is a misconceived ground, relying on matters happening after the hearing on 26 July 2013.  In any case, Mr Yu told this court that it was, rather, the plaintiff’s side who had sent the (more than) 102 pages of emails and letters.  In my view, if the 2^nd defendant had filed irrelevant materials, it should at best be the subject of the plaintiff’s application for costs in the subsequent hearing that used those irrelevant materials.

17.Again, with regard to Exhibit 4, the plaintiff challenged my apportionment of time between hearing the injunction application and the time for giving instructions on the further conduct of the originating summons proceedings.  That was a matter of discretion and the plaintiff has not shown where the error in principle was.

18.With regard to Exhibit 5, the plaintiff claimed that he had asked the defendants to have an out of court settlement but Mr Yu told Mr Justice Anthony Chan that his clients preferred to have their striking out application heard before mediation.  The defendants’ refusal to have mediation resulted in several costs orders, including the subject matter of this leave application, against the plaintiff. This court had not been informed of this matter before the costs assessment. Accordingly this matter could not have any impact on the costs order.

Conclusion

19.This application is completely frivolous and misconceived.  None of the grounds put forward have any prospect of success on appeal.  I dismiss this application with costs to the defendants.

20.Mr Yu has prepared a costs statement and I find the amount claimed to be more than reasonable.  The full amount is allowed subject to one comment.  Under item D4, a sum of $4,000 was claimed but the hearing today lasted only about 10 minutes.  However, I have been told by Mr Yu that he had received a further set of written submission from the plaintiff’s wife.  There would naturally be costs incurred for reading up and reporting to client and so I treat the rest of the costs under item D4 as costs for such additional work.  Accordingly, I make no deduction to item D4 and award the full costs of $20,180 to the defendants.

21.I thank Mr Yu for his assistance.

The plaintiff was not represented and did not appear

Mr Danny Yu, of Danny K.H. Yu & Co., for the 1^st and 2^nd Defendants