Lchj v. Syma

FCMP 28 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 28 OF 2014

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RULING

(Costs)

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Introduction

1.This is an application by a respondent father to challenge the costs order made by my fellow judge – Deputy Judge SG Chan. On the 9 May 2014 she handed down a judgment whereby she ordered that the father do pay the mother HK$30,000 per month as interim maintenance for the only child of the relationship – a little girl who is now aged 10 years. DJ Chan made an order nisi to be made absolute in 14 days time that the father do pay the mother’s costs on a party and party basis to be taxed if not agreed with certificate for counsel. She did so because she found that the mother had no alternative but to make the application for interim financial support. In the alternative the father argues that the more appropriate order is that there should be no order as to costs.

2.The matter came back before me as DJ Chan is no longer sitting and on the 3 July I directed that both sides do file written submissions on costs to include reference to the appropriate law, on or before the 11 July 2014. I also agreed to deal with the matter on paper.

3.Both sides subsequently filed their written submissions. I have noted that in the father’s submissions his primary argument is that given that this is a child related matter that the appropriate order is that there should be no order as to costs. I was also referred to the case law on the appropriate order to be made in children’s cases. With respect however it seems to me that this is to misstate and to wrongly categorize the present case. When law reports refer to “children cases” they are referring to either private or public law cases, where the primary concerns relate to the practical arrangements for children. In this instance we are not dealing with either. This is not a private law children case as such – which would in the first instance be dealt with in the Children’s Dispute Resolution list in any event, but a financial application that relates to a child. Consequently the cases produced by the husband to support his contention that in children cases the appropriate order is that there should be no order as to costs, simply do not apply to the present scenario. I will therefore be limiting my references to the other relevant case law.   

The law 

4.The law in relation to costs is otherwise well settled. In the leading case of Gojkovic v Gojkovic [1992] Fam 40 Butler-Sloss LJ stated as follows:

“There are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation: for instance (as I have already indicated earlier) material non-disclosure of documents. Delay or excessive zeal in seeking disclosure are other examples. The absence of an offer or of a counter-offer may well be reflected in costs – or an offer made too late to be effective. ... It would, however, be inappropriate, and indeed unhelpful, to seek to enumerate and possibly be thought to constrain in any way, that wide exercise of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the application receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. That seems clear from the decided cases and is in accord with the Rules of the Supreme Court and the County Court Rules 1981 requiring the court to have regard to the offer. I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position”.

5.This general approach has been routinely adopted in Hong Kong. It has been said that the issue of costs lies in the discretion of the court and that costs are normally expected to follow the event. It is also accepted that this presumption is more easily displaced in family proceedings than in others – especially where there are matters to be resolved concerning children. I have noted however that in this instance that the outstanding issue in question although child related, was financial in nature.

6.Reference was also made to HK v BD, CACV 252 of 2009 unreported where the Hon Mr Justice Hartmann said as follows:

“78. In family matters, as in all civil proceedings, the basic principles are that costs are in the discretion of the court but that costs should follow the event except when it appears to the court that, in the circumstances of the case, some other order should be made. In family matters, because of their particular dynamics, the exercise of discretion is broader-based than in other civil proceedings. However, as was observed by Butler-Sloss LJ in Gojkovic v Gojkovic [1992] Fam 40, there still remains the necessity for some starting-point. That starting-point, as we have indicated, is that costs prima facie follow the event.

79. On behalf of the wife, the oblique criticism was made that the judge proceeded on the basis of “honours even”, that seemingly being the essential reason why he came to his determination that both parties should bear their own costs. We do not see that the judge can be criticised in that respect. If costs were to prima facie follow the event, it was necessary for the judge to identify who had been successful and who had not.

80. But there were of course many issues which the judge in the present case had to take into account in considering how best to exercise his discretion as to costs.  It is a long established principle that, after analysing the case of each party, costs must be judged by way of overall impression.  They are not to be assessed by breaking down the litigation into its many component and interlocking parts in order to draw up some kind of profit and loss account……”

(Emphasis added)

I agree.

Discussion 

7.The father’s contention, in the alternative to his primary argument that this is a “children’s case”, is that given that neither party has been wholly successful then the more appropriate order in any event is that there should be no order as to costs. With respect I do not agree. The father was paying HK$11,000 per month. The mother had no alternative but to make the application that she did. Had she not done so the father would have continued to pay far less than was eventually ordered to be paid by the judge. I was told that notwithstanding the party’s ongoing duty to try to negotiate a settlement that there were no without prejudice or open offers made by either side in order to try to settle this matter. Thus in forming an overall impression it seems to me that even though the mother did not win on every point she has nevertheless been more successful than the father and that given that it seems to me that it would be more appropriate to uphold DJ Chan’s order.  

Conclusion   

8.Consequently I will not interfere with DJ Chan’s decision on costs. The father shall pay the mother’s party and party costs to be taxed if not agreed. There shall be certificate for counsel.

9.In so far as this application is concerned, again given the fact that the mother has been successful in that respect, the father shall also pay the mother’s costs of and arising out of his challenge to the order nisi costs order made by DJ Chan on the 9 May 2014, such costs to be paid on a party and party basis to be taxed if not agreed. There shall also be certificate for counsel.   

Counsel, Mr Ray Kwan instructed by Au-Yeung, Cheng Ho & Tin for the Applicant mother

Counsel, Mr Felix Li instructed by Li, Wong, Lam & W.I Cheung for the Respondent father