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