Read the full judgment text of HCCT 17/2010 on BabelCite. This HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS judgment was delivered on 12 November 2014 before Mr Recorder Shieh SC in Chambers.
Costs — Construction and Arbitration Proceedings — Fabricated Document — Indemnity Costs — Calderbank Offer — Costs Order Variation. The defendant succeeded at trial in a claim involving the plaintiff’s reliance on a fabricated document, which the plaintiff failed to disclose. The plaintiff also refused a Calderbank offer proposing no order as to costs. The defendant applied to vary the costs order nisi, seeking a certificate for two counsel and indemnity costs. The court granted the certificate for two counsel as unopposed. On indemnity costs, the court held that while reliance on fabricated documents is serious and relevant in costs exercise, the plaintiff’s conduct did not warrant indemnity costs as it was not oppressive or egregiously bad. The court gave the plaintiff the benefit of doubt that only the Calderbank letter clearly put it on notice for higher costs. The court ordered costs on a common fund basis from 26 June 2012, the expiry of the acceptance period for the Calderbank offer, and party and party costs before that date. The plaintiff was also ordered to pay the defendant’s costs of the application on a party and party basis.
Legal issues: Indemnity costs order · Certificate for two counsel
Outcome: Certificate for two counsel granted; costs ordered on a common fund basis for all costs subsequent to 26 June 2012 and party and party basis before that date; plaintiff to pay the defendant’s costs of the application to vary the costs order nisi on a party and party basis.
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