Idc v. Ssa

CACV 91/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 91 OF 2013

(ON APPEAL FROM FCMP NO. 158 OF 2011)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.We handed down our main judgment in this appeal on 6 June 2014. In this judgment we shall deal with two outstanding matters: (a) costs; and (b) leave to appeal.

Costs

2.At para 70 of our main judgment, we gave directions for filing of submissions on costs.  The parties have filed their submissions accordingly.  Mrs Irving on behalf of the Applicant asked for costs here and below to be awarded to her client.  On the other hand, Mr Coleman SC (together with Mr Todd) submitted on behalf of the Respondent that though his client would have been entitled to some costs of the appeal (as the appeal was dismissed), he is content with no order as to costs on the appeal. He was also content to leave the order for costs below (where the Applicant got 70% of her costs below) undisturbed.

3.We have dismissed the appeal for the reasons set out in our main judgment.  Though the Applicant succeeded in persuading us that the judge was incorrect on the question of jurisdiction as a matter of law, she failed to persuade us that a different order for the maintenance of the child should be made.  We are of the view that the Applicant cannot be regarded as successful in the appeal.

4.Mrs Irving urged us to follow the approach of the judge in giving her costs below and she took us to paras 30 to 39 of the cost judgment of the judge.  In that judgment, the judge took account of the inevitable financial impact on the child if the Applicant were made to shoulder her liability as to costs towards her solicitors (in view of her own lack of independent means).  Further the judge was obviously influenced by what the judge regarded as an important consideration at para 38 of the judgment:

“…that she was obliged to come to court for the order of financial provision for her child, and that although the final award was way short of her claims, it was nevertheless still more than what the Father had offered …”

5.The same cannot be said in respect of the appeal.  The Applicant had already got what the judge awarded to her.  The whole purpose of the appeal, from her point of view, was to achieve a better award.  In this quest she failed. 

6.Whilst we understand her predicament in terms of her financial position, it is a matter she and those advising her should have taken into account when she decided to appeal.  If she was labouring under the misapprehension that the court will order the Respondent to underwrite her legal costs simply because of her own lack of means and the incidence of costs would impact on her role as caretaker of the child, the earlier that she is disabused in that regard the better.  Though the court may bear in mind the interest of the child in these matters, the court must also be fair to the Respondent. In our view, at least in the context of an appeal, the court should not make a cost order which has the effect of shielding a litigant from the financial consequence of her litigation conduct simply because of her lack of means and the fact that the other side is wealthy. And this principle applies with equal force in family appeals. 

7.The applicant said she had incurred costs in the sum of $1,458,703 for the purpose of this appeal.  This is on top of her own costs of $4,220,355 at the court below.  We do not have the details of those costs.  However, we are of the firm view that these are exorbitant figures and someone must have failed to have proper regard to the underlying objectives in Order 1A Rule 1 in bringing about such a sorry state of affairs.  Matrimonial and family litigation is a growing industry in Hong Kong.  There is nothing wrong in lawyers providing good legal services demanding proper fees for their services.  However, lawyers in this field must, like lawyers practising in other fields, also have duties to their clients as well as to the court to instil a sense of proportionality in the conduct of litigation. 

8.It must not be forgotten that the judge had already given a substantial (though not overly generous) award: $118,000 per month for the maintenance of the child (of which $25,000 is a carer allowance for the applicant).  And that award is on top of certain undertakings from the Respondent which cover other regular expenditure for the child.  The Applicant’s main target on this appeal is to get an order for the purchase of a property for the residence of the child notwithstanding that the accommodation need of the child (as well as the Applicant) had been taken care of by way of rented accommodation.  For the reasons we have canvassed in our judgment, we did not think it is appropriate to make such order in the present case.

9.On the whole, acting as generously as fairness permits, we agree with Mr Coleman that there should be no order as to the costs in the appeal (including costs on the arguments as to costs).  We will not disturb the cost order below. 

Leave to appeal

10.The Applicant took out a motion on 4 July 2014, seeking leave to appeal to the Court of Final Appeal.  In the Notice of Motion, counsel for the Applicant formulated the following as questions of great, general or public importance:

“39.1 That the Court of Appeal erred in its exercise of discretion in respect of the application of the provisions under Sections 10(2)(a) and (e) of the Guardianship of Minors Ordinance as to the jurisdiction and the application of the discretion by the Court having regard to the UK authorities.

39.2 This approach does not accord with the application of a comparative approach of fairness, under the Matrimonial Proceedings and Property Ordinance and the Guardianship of Minors Ordinance, when considering the position of child/minor to ensure that as a matter of principle and as a matter of law there is no discrimination between children of a married family and children of an unmarried family.

39.3 The Court of Appeal, having correctly interpreted the statute, then failed to explain how it should be applied;

39.4 In their disposal of this appeal (and exercise of their discretion), by failing to direct a settlement in an obvious case, the Court of Appeal (a) effected a discriminatory outcome against the child of unmarried parents since this would not have been the outcome in a divorce case where the court is considering the needs of the children of the union and (b) wrongly published the message that the jurisdiction is only to be exercised sparingly or in exceptional cases (and the reason this is an obvious case is because of (i) the unconstrained resources available to the Respondent and (ii) the fact that the family when together has always lived in owned accommodation).”

11.Leave is also sought on “otherwise limb” of Section 22(1) of the Hong Kong Court of Final Appeal Ordinance.

12.With respect, all the questions so formulated are attempts to challenge the exercise of discretion by this court.  It should be clear from our main judgment that we did not say that there could not be cases where the proper order to be made is an order for the purchase of a property for the residence of the child during his or her minority.  We only regarded the present circumstances as not one in which such order should be made.  It should equally be clear from our main judgment that what we decided was based on the approach espoused in the English authorities. 

13.The main complaint of the Applicant is that we did not order the purchase of a property.  We do not think the English authorities go as far as saying that in cases of wealthy fathers, the court must order a purchase of property.  As recorded at para 38 of our main judgment, Mr Pointer did not advance such a sweeping proposition before us. 

14.In the recent judgment of the Court of Final Appeal in SPH v SA [2014] 3 HKLRD 497 at para 65, the court reiterated that the well-established principle in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 will be applied in the context of an appeal against the exercise of discretion by this court.  On the arguments advanced by Mrs Irving in her submissions of 18 August and 8 September 2014, we do not see any grounds with reasonable prospect of success in that regard.

15.In any event, none of the questions formulated in the Notice of Motion can properly be regarded as questions of great, general or public importance.  The challenges raised by Mrs Irving against this court’s exercise of discretion in this particular instance in the special circumstances of this case will only have significance in the context of this case.  They do not raise any points of general application.

16.Nor do we see any reason to call for leave being granted on the “otherwise limb”. 

17.We will not grant leave to appeal and the Notice of Motion is dismissed.  The Applicant must pay the Respondent’s costs of the motion, such costs shall be taxed if not agreed.

Ms Frances Irving, instructed by Oldham, Li & Nie, for the Applicant

Mr Russell Coleman, SC, instructed by Mayer Brown JSM, for the Respondent