Dr. Chan Sze Lai, Jacqueline v. The Dental Council of Hong Kong

HCAL 42/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 42 OF 2012

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DECISION ON COSTS

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Introduction

1.By a Judgment dated 7 November 2013 (“Judgment”), this court granted the Applicant (“Dr Chan”):

(1)   an order of certiorari to quash the decision of the Dental Council of Hong Kong (“Council”) not to enter the degree of “MSc (Implant Dent)” ie Master of Science in Implant Dentistry (“Degree”) awarded to Dr Chan by the University of Hong Kong (“HKU”) on the General Register of Dentists (“Decision”); and

(2)   an order of mandamus directing the Council to determine as soon as practicable her application to enter the Degree on the General Register of Dentists and the List of Quotable Qualifications  in accordance with the Judgment. 

2.This Court also made an order nisi that the Council shall bear the costs of Dr Chan and HKU, to be taxed if not agreed, with certificate for counsel.

3.This is the Council’s application to vary the costs order nisi in favour of HKU to “no order as to costs”.

The applicable legal principles

4.The starting point is that an unsuccessful party in an application for judicial review should not have to pay more than one set of costs: Hong Kong Civil Procedure 2014 Vol. 1 para. 53/14/59; Shiu Wing Steel Limited v Director of Environmental Protection & Airport Authority  of Hong Kong, unrep., CACV 350 of 2003, 18 March 2005; re Ho Mei Ling unrep., HCAL 51 of 2011, 28 December 2011.

5.In Shiu Wing Steel Limited supra, Ma CJHC (as he then was) observed at paras. 158 to 160 as follows:

“158. From these authorities, it is clear that while costs are of course in the discretion of the Court, the following factors offer some guidance (they are not exhaustive) : -

(1) The mere fact that a person has the necessary locus standi to appear does not by itself entitle that person to an order for costs should the outcome be successful : - see R v Registrar of Companies, Ex parte Central Bank of India [1986] QB 1114, at 1162F.

(2) Where several parties appear having the same interest in proceedings, the starting point is that the unsuccessful party should not have to pay more than one set of costs : - R v Industrial Disputes Tribunal, Ex parte American Express Co Inc [1954] 1 WLR 1118; Ex parte Central Bank of India at 1162F-G. The rationale here is simply that an unsuccessful party should not have to pay for costs which are unnecessarily incurred. Either the different parties with the same interest engage the same solicitors and counsel or they adopt the position of one of the other parties.

(3) Where, however, the party can show that there is a separate issue on which he was entitled to be heard, being an issue not covered by the other party or parties in the proceedings, he would be entitled to his costs : - see Bolton Metropolitan District Council at 1178H.

159. In the present case, I am of the view that no separate interest was served by having the Interested Party separately represented either before us or in the Court below. Its interests coincided those of the Respondent. This is not to say that we have found Mr Thomas Lee’s submissions to have been anything but helpful. Quite the contrary. However, there was substantial overlap with Mr Yu’s submissions.

160. Accordingly, on costs, I would allow the appeal and order that the Applicant do pay only the Respondent’s costs in the Court below, such costs to be taxed if not agreed. There will be no order in relation to the Interested Party’s costs.” (emphasis added)

6.In Bolton Metropolitan District Council & Ors. v Secretary of State for the Environment & Ors [1995] 1 WLR 1176, the House of Lords held that in planning appeals where the Secretary of State succeeded in defending his decision, a co-Respondent ie the developer, would not normally be entitled to his costs unless:

(1)   he could demonstrate a separate issue, not covered by the Secretary of State, on which he was entitled to be heard, or

(2)   he had an interest requiring separate representation.

7.The House of Lords also held a second set of costs was more likely to be awarded at first instance than in the Court of Appeal or the House of Lords.

8.On the facts of that case, the House of Lords allowed the developers, Manchester Ship Canal Co., their costs. Several reasons were given, one of which was that they were entitled to take the view that on the facts of the case they “had a sufficiently independent interest requiring protection so as to justify separate representation” – per Lord Lloyd of Berwick at 1179C. The House of Lords, however, refused a third set of costs to the Development Corporation as their interests were, to all intents and purposes, identical with those of the developers.

9.Bolton Metropolitan District Council & Ors was applied in Humber Sea Terminal Ltd. v Secretary of State for Transport & Anr [2005] EWHC 1289 (Admin).

10.In that case, Ouseley J observed at paragraphs 126 to 129 as follows:

“126. There is an application for costs by the Secretary of State which is not resisted. There is an application for a second set of costs by the interested party which is resisted.

127. Applying the principles in Bolton Metropolitan District Council and others v Secretary of State for the Environment [1996] 1 All ER 184, [1995] 1 WLR 1176, it is clear that ABP has a separate interest. It had in the event no separate arguments. It had a number of concerns which entitled it to be separately represented, in particular the discretion arguments which it might have wished to raise very much more strongly than the Secretary of State had the Secretary of State lost. It has an interest that is perhaps different from the Secretary of State in terms of the importance to it of the proposal, but the Secretary of State was well able to deal with issues relating to the general public importance of the proposal because those were the very stuff and matter of his conclusions.

128. This does not seem to me to be a case in which it can be said that the developer had an interest which required separate representation. There are insufficient differences particularly viewed with the benefit of hindsight, as I believe you are entitled to do, to say that the presence of Mr Pleming to support those interests was required.

129. However, I do consider that in a case of this sort it is appropriate for there to be recognition that evidence from the interested party is legitimate, and I award the costs and the costs only of the preparation of the interested party’s witness statements.” (emphasis added)

11.On the other hand, in R (Bedford & Clare) v London Borough of Islington & Arsenal Football Club [2002] EWHC 2044 (Admin) Ouseley J refused a second set of costs to Arsensal Football Club and said at paragraph 297 as follows:

“297. Although I accept that this is an exceptional, large-scale development with a significant commitment, the key, in my judgment, to the award of a second set of costs is a separate interest with separate arguments that have to be promoted. There has not been so much of a difference between the interested party and the defendant that I consider it would be appropriate to make a second order of costs in this case. Accordingly, that application is refused.” (emphasis added)

Discussion

12.Mr Ismail for the Council has helpfully set out his main submissions and reply submissions in writing. Without any disrespect to him, this court has taken on board the points raised but do not consider it necessary to set them out fully. In gist, his case is that although HKU was an interested party, it did not have to appear at the hearing because there was no separate issue entitling it to be heard. Both Dr Chan and HKU attacked the Decision and HKU supported Dr Chan’s application and her grounds for challenging the Decision. HKU did not have a separate interest which needed separate representation or separate arguments which had to be promoted - HKU’s interests coincided with those of Dr Chan. HKU’s participation in the proceedings by filing evidence and briefing junior counsel to appear and advance arguments on its behalf was a privilege for which it should bear the burden of paying.

13.In my view, while HKU and Dr Chan shared the same interest in attacking the Decision, it does not mean their interests were “to all intents and purposes identical”.

14.At the hearing, Dr Chan put forward two grounds for challenging the Decision:

(1)    There was no evidential basis for the Decision.

(2)    In making the Decision, the Council failed to take into account relevant considerations, the most prominent of which was Dr Chan’s constitutionally guaranteed right to freedom of expression, and took into account irrelevant considerations.

15.The objective of Dr Chan’s application and her interests were, so far as this court could gather, to have the Degree entered on the General Register of Dentists and the List of Quotable Qualifications, so that she could publicize the Degree to her patients or potential patients without being at risk of breaching the Code of Professional Discipline for the Guidance of Dental Practitioners and liable to disciplinary proceedings.

16.The interests of HKU were different. Its stance at the hearing was that the Degree was a proper master degree in clinical dentistry and was never pitched at the standard of a diploma level, as the Council suggested: para. 6 of HKU’s Skeleton Argument. It seems reasonably clear to this court the interests that HKU sought to promote by participating in the proceedings were not so much the ability or otherwise of dental practitioners to improve and publicise their professional credentials: paras. 2 & 3 of HKU’s Skeleton Argument, but the integrity and reputation of its degree programmes and the self-accrediting system that it operated and still operates under the Accreditation of Academic and Vocational Qualifications Ordinance, Cap. 592.

17.In other words, HKU’s interests in these proceedings were in vindicating itself by refuting the Council’s extremely grave accusation that it had offered a sub-standard degree of MSc (Implant Dent) which was highly misleading to the general public: paras. 30 - 35 of HKU’s Skeleton Argument. These interests were reflected in the contents of the affirmation evidence filed by HKU in the proceedings and the arguments put forward by its counsel at the hearing. While Dr Chan sought to challenge the Decision as lacking in evidential basis, it was not at all clear that she had any interests, at least not direct interests, in vindicating HKU as an education institute.

18.In these circumstances, in the view of this court, it cannot be said that:

(1)   the costs of HKU were “unnecessarily incurred” - per Ma CJHC in Shiu Wing Steel Limited supra;

(2)   HKU did not have a “sufficiently independent interest requiring protection so as to justify separate representation” - per Lord Lloyd of Berwick in Bolton Metropolitan District Council & Ors supra; or

(3)   there were “insufficient differences” between the interests of Dr Chan and HKU such that separate legal representation was not required to promote HKU’s interests - per Ouseley J in Humber Sea Terminal Ltd. v Secretary of State for Transport & Anr supra.

19.Further, although Dr Chan has been awarded the Degree, she  was not in a position to adduce evidence before this court on the formulation and inception of the Degree programme, the differences between the Degree and the degree of MDS in Implant Dentistry, both offered by HKU at the material time, and the differences between the Degree and a diploma.  In the view of this court, HKU has “provided material assistance to the court which [Dr Chan] was not in a position to provide” – per Lam J (as he then was) in Ho Mei Ling at para 32.

Disposition and costs order nisi

20.For these reasons, and notwithstanding the very able submissions of Mr Ismail for the Council, this court is not minded to vary the costs order nisi in favour of HKU.

21.There will be a costs order nisi that the costs of this application be to HKU.

Mr Anthony Ismail, instructed by Secretary for Justice, for the respondent

Mr Edward Fan, instructed by Clifford Chance, for the Interested Party