HK v. Wesley Wong, Deputy Chairperson of the Torture Claims Appeal Board

HCAL 53/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 53 OF 2014

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Date of written submissions : 19 December 2014,23 December 2014, 23 January 2015, and 4 March 2015

Date of Decision on Costs:  17 March 2015

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DECISION ON COSTS
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1.It is an application for costs by the Applicant against the Respondent subsequent to an order by consent quashing the decision of the Respondent to dismiss the Applicant’s appeal to the Torture Claims Appeal Board (hereinafter called “TCAB”).

2.Upon request by the Applicant, leave was granted for this application for costs to be dealt with on paper.

Background

3.The Applicant lodged his torture claim with the Director of Immigration on 5 December 2011.  The claim was rejected on 14  December 2012.

4.The Applicant then appealed to the TCAB on 24 December 2012. The appeal was dismissed by the Respondent on 6 March 2013.

5.On 23 May 2014, the Applicant applied for leave to apply for judicial review, naming the Respondent as the putative respondent.

6.On 11 September 2014, leave to apply for judicial review was granted.  The Director of Immigration was added as an Interested Party.

7.Pursuant to the leave granted, on 23 September 2014 the Applicant took out an Originating Summons and served the same on the Respondent and the Interested Party.

8.On 25 November 2014, by consent the Court made orders including the followings :

1. The abovesaid decision of the Respondent be quashed;

2. The torture claim of the Applicant be remitted to the Appeal Board for fresh determination before another Board Member, Deputy Chairperson or Chairperson;

3. Costs to be further provided for.

The application for costs

9.On 19 December 2014, the Applicant wrote to apply against the Respondent for costs of and incidental to his application for judicial review.[1]

10.As for the Interested Party, the order sought is that there be no order as to costs between the Applicant and the Interested Party.[2]

Position of the Parties

11.On 9 October 2014, the Respondent indicated that he takes a neutral stance in the proceedings and will abide by any decision and order of the Court in respect of the proceedings.  Subsequent to the application for costs, on 23 January 2015, the Court was informed that the Respondent maintains his stand.  Further, the attention of the Court was brought to the following matters :

1. the English Court of Appeal decision of R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739;

2. the decision of Au J. in B & Others v Torture Claims Appeal Board and Director of Immigration, HCAL 80/2014; and

3. for the case of Orrico, Philippe and Another v Municipal Services Appeals Board, HCAL 24/2014, a case which the Applicant relies on, leave to appeal has been granted by Zervos J., who made the decision.

12.The Interested Party invited the Court to exercise its discretion in making an order that there be no order as to costs in these proceedings, stressing that the Interested Party had taken no part in these proceedings up until leave to apply was granted and that no decision of the Interested Party was and is under challenge in these proceedings.

13.Mr Sunny Li, Government Counsel, who presented a written submission for the Interested Party, clearly stated that he only acted for the Interested party and whatever submission he made was not made on behalf of the Respondent. 

14.The submission of Mr Li includes matters which may be relevant generally to the consideration on costs.

15.Mr Li mentioned that whilst in normal course costs should follow the event, the Court has a wide discretion on the issue of costs.  In exercising its discretion, the Court shall take into account the factors as set out in Order 62 rule 5 of the Rules of the High Court[3] (the Rules), if appropriate.

16.Mr Li also brought to the court’s attention Order 1A rule 1 of the Rules which set out the underlying principles.

17.On 4 March 2015, the Applicant filed further written submission in reply.

Submission of the Applicant

18.In making the application for costs, the Applicant cited the decision of Zervos J. in Orrico, Philippe v MSAB and other decisions in England, placing particular reliance on the case of Orrico.

19.It was submitted that the Applicant has established a reasonably arguable case in challenging the Respondent’s decision in particular as he succeeded in obtaining leave on all the 6 grounds :

(1) The Deputy Chairperson of the Appeal Board failed to take into account and/or accord sufficient weight to relevant information and materials, including country of origin information;

(2) The Deputy Chairperson of the Appeal Board placed undue emphasis and weight on his finding that the Applicant had not been subjected to torture in the past;

(3) The Deputy Chairperson of the Appeal Board wrongly characterized the risk faced by the Applicant as an internal conflict and/or placed undue weight on an irrelevant and/or peripheral matter;

(4) The Deputy Chairperson of the Appeal Board failed to properly consider whether the Applicant was at real and personal risk of torture;

(5) The Deputy Chairperson of the Appeal Board failed to give notice and allow the Applicant an opportunity to respond to the issue of internal relocation in Bangladesh.

(6) The Deputy Chairperson failed to meet the high standard of fairness required for considering torture claims by failing to conduct an oral hearing.

20.It was further submitted that the Respondent’s adoption of a neutral stance without challenging the Applicant’s case must be taken as the Applicant having successfully proven his case.  The Respondent had by his conduct conceded to the Applicant’s application for leave to apply for judicial review in its entirety and agreed to the Applicant’s entitlement to the relief sought therein.

21.In any case, the Applicant’s case would have succeeded had the matter proceeded to a full argument on the substantive issues.

22.The Applicant’s claim is wholly successful and should recover all his costs under the general rule that costs to follow the event.

23.Further, in the light of the strength of the Applicant’s case and the lack of any good reason and / or special circumstances, there is no reason why the Applicant should be denied his costs from the Respondent.

24.It was submitted that the Applicant had not raised any new arguments but his case was based on grounds derived from statute and well established case law.

25.Therefore it will be unjust if the Applicant is denied of his costs in the judicial review application.

Consideration

26.It is the Court’s discretion to make an order for costs of or incidental to the proceedings.  Order 62 rule 3(2) of the Rules provides that if the Court in the exercise of its discretion sees fit to make any order as to costs of or incidental to any proceedings other than interlocutory proceedings, it shall order the costs to follow the event, except where it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

27.Order 62 rule 5(1) of the Rules set out the matters which the Court shall take into account in exercising its discretion, which include :

(i) the underlying objectives set out in Order 1A, rule 1;

(ii) the conduct of all the parties;

(iii) whether a party has succeeded on part of his case, even if he has not been wholly successful.

28.As regards the conduct to be taken into account, Order 62 rule 5(2) stipulates that it includes :

(i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(ii) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(iii) whether a claimant who has succeeded in his claim, in whole  or in part, exaggerated his claim, and

(iv) conduct before, as well as during, the proceedings.

29.In R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, an English Court of Appeal decision, Brooke LJ said :

“(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings;

(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event;

(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case-law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application;

(iv)  There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.”

30.Such principles were adopted and followed by Au J. in B & Others, HCAL 80/2014.

31.In his submission in reply, Mr Randy Shek, for the Applicant, suggested that Au J. had not been made aware of the decision of Zervos J. in Orrico, Philippe v MSAB.

32.In this case, Zervos J. said :

“When an inferior court or tribunal takes a neutral stance in the face of a reasonably arguable case challenging its decision‑making process and/or its decision on grounds that constitute a serious error or departure from accepted norms or requirements, and the applicant successfully proves his case to the extent that he has shown he has been treated unreasonably or unfairly, then why should the inferior court or tribunal as the respondent not pay the costs of the applicant? Why should a party who has incurred legal costs to right a wrong perpetrated by an inferior court or tribunal not be compensated for those costs from the inferior court or tribunal responsible, especially when there is no other party that can be held liable to pay the successful party’s costs? Is it not harsh and oppressive that a successful party is denied his costs, for the reason it is harsh and oppressive for the inferior court or tribunal to pay those costs? The logic and reasoning of this proposition completely escapes me.”[4]

33.To support his argument, Mr Shek in his first written submission cited the following cases, which set out principles he submitted are applicable in the present case.

34.In R (Boxall) v London Borough of Waltham Forest[5], after having considered certain relevant authorities, Scott Baker J. said the principles which could be deduced to be applicable in the case are as follows :

“(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs;

(ii) it will ordinarily be irrelevant that the claimant is legally aided;

(iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs;

(iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties;

(v) In the absence of a good reason to make any other order the fall back is to make no order as to costs; and

(vi) The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.”[6]

35.In R (Bahta) v Secretary of State for the Home Department [2011] 5 Costs LR 857, Pill LJ said that the principles just stated have been approved in subsequent cases, including cases decided by the Court of Appeal.  At the same time, it was also noted that when principles (iv) and (v) were applied in the subsequent cases, including those under appeal in the instant case, the expression “plain and obvious” was used.  In RO, the judge said it was not plain and obvious that the claimant’s case would succeed. In Bahta, the judge said he was not persuaded that this was a plain and obvious case that the claim was bound to have succeeded.

36.Pill LJ held that whether to make an order for costs depends on the merits of the particular application, taking into account the whole sequence of events and the conduct of the parties throughout.  When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol (PAP).  The circumstances of each case, at the date of assessment, do require analysis if injustice is to be avoided, bearing in mind the principle of proportionality.  His Lordship remarked that such analysis will not normally be difficult if the parties have stated their cases competently and clearly and if the statement of reasons required when a consent order granting relief is submitted to the court genuinely and accurately reflects the reason for the termination of proceedings.

37.In a subsequent English Court of Appeal case, R (M) v Croydon London Borough Council [2012] 1 WLR 2607, it was held that there are 3 relevant general principles :

“1. Any decision relating to costs is primarily a matter for the discretion of the trial judge, to be exercised rationally and in accordance with certain generally accepted principles, which are to a large extent set out in the Civil Procedure Rule (CPR).

2. The general rule in civil litigation that a successful party who obtained all the relief he sought, whether by consent or after a contested hearing, was entitled to be paid his costs by the unsuccessful party unless there was good reason to the contrary, the parties’ conduct is a relevant matter in the consideration.

3. the basis upon which the successful party’s lawyers are funded will rarely if ever make any difference to that party’s right to recover costs.”

38.It was further held that these principles apply in the Administrative Court just as much as to other parts of the civil justice system, and it made no difference that a defendant was a public body.  Lord Neuberger said at least on the face of it the fact that a claim is a public law claim should make no difference.  Such claims are subject to the CPR, and a successful claimant who has brought such a claim is just as much entitled to his costs as he would be if it had been a private law claim.[7]  His Lordship also said :

“… by settling all issues save costs, the parties take the risk that the court will not be prepared to make any determination other than that there be no order for costs not only because that is the right result after analyzing all the arguments, but also on the ground that such an exercise would be disproportionate.”[8]

39.In application of the principles, Lord Neuberger identified the difference about the following 3 different types of case[9] and suggested how each type should be dealt with respectively :

1. a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement : the claimant should recover all his costs, unless there is some good reason to the contrary;

2. a case where he has only succeeded in part following a contested hearing or pursuant to a settlement : in making the determination on costs the court should take into consideration matters such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim; and

3. a case where there has been some compromise which does not actually reflect the claimant’s claims : if the court is unable to gauge whether there is a successful party in any respect, which is often the case, and, if so, who it is, no order for costs should be made.

40.In his submission in reply, Mr Shek Submitted that the principles set out in R (Davies) v Birmingham Deputy Coroner are not binding in this jurisdiction.  Whilst Mr Shek did not expressly say so, the necessary implication is that this submission applies to all the English authorities cited.

41.It is the further submission of Mr Shek that, even if the principles in R (Davies) are to apply, the TCAB had acted in a manner amounting to a ‘flagrant instance of improper behaviour’ thus rendering it liable to the Applicant for his costs.

42.It was stressed by Mr Shek that the Applicant in the instant case did not raise any new arguments that required guidance of principles from the court. 

43.In consideration of the matter, I am of the view that the following matters must be borne in mind :

1. the English authorities generally have no binding effect on this Court, this is indeed the submission of Mr Shek in relation to R (Davies) v Birmingham Deputy Coroner[10];

2. notwithstanding this general observation, the principles in R (Davies) v Birmingham Deputy Coroner have been widely adopted and followed in this jurisdiction and I have not been told that it has ever been expressly over-ruled;

3. The English cases decided after R (Boxall) v London Borough of Waltham Forest were much influenced by the implications of CPR and PAP which then emerged;

4. The Review on Civil Litigation Costs : Final Report, published in December 2009, recommended a modification of the Boxall approach in particular as the PAP was in place;

5. The difference in legal and procedural framework in the two jurisdictions, in particular after the implementation of the CPR and PAP in England.

44.Order 1 rule 2 of the Rules provides that, subject to certain exceptions which do not cover the type of cases in the present proceedings, the Rules shall have effect in relation to all proceedings in the High Court.

45.Order 1A rule 1 provides that the underlying objectives of the  rules in the Rules are :

(a) To increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(b) To ensure that a case be dealt with as expeditiously as is reasonably practicable;

(c) To promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d) To ensure fairness between the parties;

(e) To facilitate the settlement of disputes; and

(f) To ensure that the resources of the Court are distributed fairly.

46.According to Order 62 rule 5(1), these objectives are what I, in exercise of my discretion, must take into account amongst other things.  The other matters which I must take into account are set out in paragraph 26 above.  I also find the cases of R (Davies) v Birmingham Deputy Coroner and R (Boxall) v London Borough of Waltham Forest still provide sound principles which should be borne in mind in consideration of this matter.

47.Having considered the whole of the relevant circumstances, I am of the view that the appropriate order to make is to make no order for costs against both the Respondent and the Interested Party.

48.In my judgment, this order is consistent with promotion of the objectives, having taken into account the conduct of the parties concerned.

49.In the circumstances of the present case, it will be too harsh to regard the Respondent’s taking of a neutral stance as a conduct which attracts unfavourable consideration against him in the context of costs.

50.In RA, HCAL115/2013, Anthony Chan J. said “the law does not discourage a party from acting sensibly to save the time and costs of litigation.”  I respectfully share the sentiment of His Lordship.

51.For the purpose of costs, it is not appropriate for me to engage myself in a disproportionate exercise to analyse the situation.  I do not find myself able to accept from what are before me at the present time that the case is one which the Applicant will plainly and obviously have succeeded on the substantive issues, save for ground 6.

52.In the light of the Court of Appeal decision in ST v Betty Kwan [2014] 4 HKC 419, the determination of the Respondent is quite unsustainable, on ground 6 alone.

53.Notwithstanding this, I may not persuaded to hold that the determination was a flagrant instance of improper behavior on the part of the Respondent.  In making my finding, I bear in mind R v Liverpool Justices, ex parte Roberts [1960] 2 All ER 384, in which Parker CJ said :

“ … it has been the practice not to grant costs against magistrates or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.”

54.The statement of Parker CJ was adopted by the Full Court of Hong Kong in re Lee Shiu Ting, [1966] HKLR 631.

55.The determination of the Respondent is unsustainable on ground 6 in the light of the decision in ST v Betty Kwan, which was only decided after the determination of the Respondent in the present case.  The situation is much less definite as far as the allegations raised in the other grounds are concerned. 

Conclusion

56.For these reasons, I make an order that there be no order as to costs in these proceedings.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Sunny Li, Government Counsel, of the Department of Justice, for the interested party

Mr Randy Shek, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the applicant