St v. Betty Kwan and Another
Read the full judgment text of HCAL 60/2012 on BabelCite. This Court of First Instance judgment was delivered on 8 January 2014 before Au J.
Civil procedure – judicial review – costs – wasted costs order – legal aid – taxation of own costs – discovery application – surprise application – procedural impropriety – exceptional lateness – merits – High Court Ordinance (Cap 4) s 52A – Legal Aid Regulations Reg 12(6). The applicant, ST, brought a judicial review against the respondents concerning immigration matters, which was dismissed. The applicant had also made a discovery application that was dismissed for lack of merits, and the court was minded to disallow the applicant's own costs to be taxed in accordance with legal aid regulations, akin to a wasted costs order under s 52A(6) of the High Court Ordinance (Cap 4). The court considered the applicable principles, including the importance of fearless advocacy under s 52A(5), the distinction between fearless advocacy and running an obviously hopeless case, and the discretion to make wasted costs orders having regard to all the circumstances. The court examined three factors: (1) whether the discovery application was a surprise application amounting to procedural impropriety, (2) whether the application was brought with reprehensible lateness, and (3) whether the application was clearly without merits. On the surprise application factor, the court accepted that the documents under Classes 1-3 had been sought in correspondence between the applicant's solicitors and the Department of Justice, and the respondents were aware of the applicant's intention to seek discovery of those documents, though the court noted that better practice would have been to amend the discovery summons. The court corrected its earlier finding at paragraph 120 of the Judgment. On lateness, the court accepted that the applicant's solicitors had waited for substantive responses from the Department of Justice, and the Department had repeatedly asked for more time, so the lateness was not wholly unreasonable. On merits, the court maintained its view that the application was clearly without merits, but found this factor alone insufficient to justify the intended costs order. The Director of Legal Aid confirmed that the supervisory power under the Legal Aid Ordinance (Cap 91) and Legal Aid Regulations did not extend to invigilating the performance of assigned lawyers, and that discovery applications in judicial review are not of unusual nature within the meaning of Regulation 12(6). The court concluded that, notwithstanding the demerits of the application, there were insufficient justifications to make the intended costs order. The applicant's own costs in the subject discovery application and the present hearing were ordered to be taxed in accordance with legal aid regulations, with no certificate for two counsel, as Mr Kat had advised on the matter and Mr Parker's role did not justify additional costs.
Legal issues: Whether the discovery application was a surprise application amounting to procedural impropriety · Whether the application was brought with reprehensible lateness · Whether the discovery application was clearly without merits · Whether to make the intended wasted costs order disallowing the applicant's own costs
Outcome: The court decided not to make the intended wasted costs order disallowing the applicant's own costs; the applicant's own costs in the subject discovery application and the present hearing to be taxed in accordance with legal aid regulations.
Cited by 8 cases · Cites 1 case
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HCAL 60/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 60 OF 2012 ------------------------
_____________________________ D E C I S I O N ON C O S T S _____________________________ A. INTRODUCTION 1.On 8 March 2013, this court handed down its judgment (“the Judgment”) dismissing the judicial review application. 2.Under section E1 (paragraphs 117-128) of the Judgment, I also gave the reasons for dismissing the applicant’s discovery application (“the subject discovery application”) on 14 December 2012 just before the substantive hearing. At the end, I indicated at paragraph 128 that, in light of how the subject discovery application was made and its clear lack of merits, I was minded to consider whether I should disallow the applicant’s own costs to be taxed in accordance with legal aid regulations. I further directed the applicant’s legal representatives to make submissions on this question before I would finally decide whether to do so or not. 3.This is the hearing of this question. 4.The applicant is represented by Mr Kat (with Mr Parker). As I indicated in the Judgment, Mr Kat was not counsel appearing before me in the subject discovery application. However, he makes it clear at this hearing that he bears responsibility for that application as well, since he had also advised on the subject discovery application. 5.At the invitation of the court, Mr Edmund Chan for the Director of Legal Aid (“the Director”) has also appeared before me to assist in the matter. The court is grateful for his assistance. 6.In essence, Mr Chan submits (which is not disputed by Mr Kat and is accepted by me) that:
7.With the Director’s above position in mind, I now deal with the costs consideration as follows. 8.This decision should be read together with the Judgment. For consistency, unless otherwise stated, I would adopt the same abbreviations herein as used in the Judgment. B. THE COSTS IN QUESTION B1. Applicable principles 9.I accept Mr Kat’s general submissions the intended costs order I was minded to make is one which is akin to a wasted costs order under s 52A(6) of the High Court Ordinance (Cap 4). 10.Costs is of course a matter of discretion for the court. The court would consider all the circumstances as a whole of the relevant application before deciding whether or not to make such an order. These include (non-exhaustively) matters such as whether there has been an improper or unreasonable act or omission, an abuse of process or serious dereliction of duties by the legal representatives involved in bringing and pursuing the relevant application or proceedings, and whether the conduct permits of a reasonable explanation[3]. 11.Before making such an order (given its seriousness in nature), the court must also take into account the interest that there should be “fearless advocacy” under the adversarial system of justice (see s52A(5))[4]. But the court should also be alerted to the distinction (albeit sometimes a fine one) between “fearless advocacy” and running an obviously hopeless case. The former is accepted, but not the latter. 12.Bearing these principles in mind, I would now look at the present case. B2. The present case 13.I agree with Mr Kat that the factors set out in the Judgment in support of the intended costs order can be summarised as follows:
14.It is Mr Kat’s submissions that these factors (or some of them) are not established in showing that there was any or any obvious or clear dereliction of duty or abuse of process by the legal representatives in bringing and pursuing the subject discovery application. No effective wasted costs order should therefore be made. 15.I would look at these factors in turn. B2.1 A late and surprise application 16.The first and second factors can be considered together. 17.As rightly submitted by counsel, the primary complaint of impropriety is that the respondents were “taken by surprise” by an application for Classes 1-3 discovery. At paragraph 120 of the Judgment, I observed as follows (footnote omitted):
18.Mr Kat has at this hearing (and in his skeleton) taken me to the chain of correspondences exchanged between the applicant’s solicitors and the Department of Justice for the respondents from 30 May 2010 to 20 November 2012. Counsel submits that when all these correspondences are looked at properly, it is evident that Classes 1‑3 documents had been sought by the applicant during this period of time, and the respondents were clearly aware of that, although they refused to produce them. 19.In particular, Mr Kat emphasises that although the wider scope and extent of the documents asked to be discovered under Classes 1‑3 were not set out in the original discovery summons, as the matter developed over the course of time, the Department of Justice well understood that they would be covered as part of the applicant’s discovery application when he sought to restore the hearing of the adjourned original discovery summons[5]. 20.After going through these correspondences, I agree with Mr Kat that it cannot be said that the discovery of Classes 1‑3 documents had not been sought in correspondence by the applicant. I also accept that the correspondences show that the respondents were aware of the fact that the applicant would seek the discovery of those documents in restoring the hearing of the discovery summons, although the summons had not be so amended with the extended or new classes of documents included in the schedule. 21.Notwithstanding this, in my view, at the least as a matter of good practice, the applicant should have sought to amend the discovery summons when seeking to restore it, by properly including in it all the documents he had sought to ask for production by way of correspondence. These would have avoided any confusion. 22.On the other hand, to that extent, the court was incorrect to observe at paragraph 120 of the Judgment that those documents were not sought in the correspondence before the restoration of the discovery summons and that it was a surprise application[6]. That part of the Judgment should thus be so corrected. 23.On this basis, I agree that the factor of a “surprise application” which amounted to procedural impropriety is not shown. 24.For lateness, Mr Kat has accepted (rightly so) that as a matter of better practice and on reflection, the applicant should have restored the hearing of the discovery application earlier, instead of leaving it so close to the substantive hearing of the judicial review, in particular in light of the respondents’ clear and consistent stance in refusing in correspondence to disclose the documents as sought. 25.He however also draws my attention to the fact that, notwithstanding the chasers by the applicant’s solicitors, it was also the Department of Justice’s various requests made in correspondence to ask the applicant to withhold making any applications yet, so as to enable them to obtain instructions. One of the latest examples of such a request by the Department of Justice is as follows. 26.Following the letter sent by the applicant’s solicitors (“B&D”) on 8 October 2012, which requested the classes of documents sought at the discovery hearing:
27.In light of the above matters and chronology, I accept Mr Kat’s submissions that, before restoring the discovery summons, it was not wholly unreasonable for the applicant to wait for a substantive response from the Department of Justice in October and November 2012. I therefore further accept that, for the present purpose of considering costs, there is no clear reprehensible dereliction of duty on the part of the applicant’s legal representatives in restoring the subject discovery application. B2.2 Merits of the application 28.In light of my above conclusion in relation to the surprise application and lateness factors, I would be brief on this factor. 29.Mr Kat has tried to in effect re‑run the submissions (with reference to various authorities on discovery in judicial review applications) in support of the subject discovery application to say why it was not clearly unnecessary and without merits, even though it had been dismissed. 30.I am not going to repeat Mr Kat’ submissions herein. Suffice for me to say that for the reasons I have set out in the Judgment at paragraph 125, I am still of the view that the application was clearly without merits. I therefore do not accept Mr Kat’s submissions under this ground. 31.However, I am of the view that this factor alone in the circumstances of the present case would not justify the making of the intended costs order. C. CONCLUSION 32.For the above reasons, I accept that (notwithstanding the demerits of the application) there are just not sufficient justifications in the circumstances of the present case to make the intended costs order in relation to the subject discovery application. In this respect, I bear in mind the relevant principles governing the exercise of such discretion set out above. 33.I will therefore make the following order:
Mr Nigel Kat & Mr Timothy Parker, instructed by Daly & Associates, for the applicant Mr Edmund Chan, Senior Legal Aid Counsel, for the Director of Legal Aid [1] Cheung Shui Han v Luk Ka Ling [2012] 4 HKLRD 536 at paras 22-24 per Tang VP (as he then was). [2] Ngao To-ki otherwise spelt as Ngo dao-kei v AG [1981] 1 HKLR 259 at 266 per McMullin VP. [3] See also: O 62 rr 8 to 8E; Practice Direction 14.5; Hong Kong White Book 2014, paragraph 62/8/1. [4] See Cheung Shui Han, supra, at paragraph 28, where Tang VP (as he then was) observed that before a wasted costs order is made, the court should remind itself of the provisions under s 52A, the relevant rules of the court and the Practice Direction. [5] See Department of Justice’s letter dated 20 November 2012. [6] As apparently (albeit perhaps inadvertently) suggested at paragraphs 1-8 of the respondents’ skeleton dated 13 December 2012 opposing the subject discovery application. [7] I do not think there should be certificate for two counsel. Mr Kat has confirmed that he was counsel who had all along advised the subject discovery application. Further, nothing at this hearing would turn on what actually happened at the subject discovery application hearing on 14 December 2012 (where only Mr Parker appeared). There are therefore no justifications for incurring costs for two counsel for the present purpose. | ||||||||||||||||||||||||||||||
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