Kmm v. The Torture Claims Appeal Board

HCAL 46/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 46 OF 2014

_______________

_______________

_______________

DECISION ON COSTS

_______________

A. INTRODUCTION

1.On 12 December 2014, upon the joint application of the applicant and the Director of Immigration (“the Director”), the interested party herein, by way of a Statement filed on 27 November 2014 pursuant to paragraph 23 of Practice Direction SL3, this court made an order in terms of the draft Consent Order attached to the said Statement disposing of this application for judicial review by consent, leaving the outstanding question of costs to be dealt with by way of written submissions to be filed by the parties.

A1.  History of these proceedings

2.By a Notice of Application for Leave to Apply for Judicial Review filed herein on 7 May 2014, supported by the 2^nd Affirmation of the applicant dated 5 May 2014, the applicant sought leave to challenge the decision of the Torture Claims Appeal Board (“TCAB”), the respondent herein, dated 13 December 2013 (the “Decision”) dismissing the applicant’s appeal made under section 37ZR(b) of the Immigration Ordinance, Cap 115 against the decision of the Director dated 18 January 2013 whereby the applicant’s claim for non-refoulement protection under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) was refused.

3.The Director’s said decision was not challenged, but he was named as an interested party in these proceedings by the applicant.

4.The applicant challenged TCAB’s Decision on the grounds that: ―

(1) TCAB’s Decision was flawed in the standard of proof applied;

(2) TCAB misdirected itself in law as to the “purpose” limb of the CAT;

(3) TCAB failed to take into account relevant evidence and material facts before it which supported the applicant’s claim of a real risk of harm if refouled; and

(4) TCAB’ Decision was irrational in the public law sense.

5.On 11 August 2014, this court directed, inter alia, that the application for leave to apply for judicial review be heard at an oral hearing on 19 November 2014.  The Director was informed of this direction by way of a letter dated 15 August 2014 from Messrs Daly & Associates, solicitors for the applicant.

6.On 26 August 2014, TCAB (then as the putative respondent) informed the court that it intended to take a neutral stance in these proceedings and would wish to be excused from attending any hearing of the judicial review application.  It further indicated that it would abide by any decision and order of this court in these proceedings.

7.On 4 September 2014, the Director (then as the putative interested party) informed this court that he would, at the ex parte stage of the matter, remain neutral on the issue of whether leave to apply for judicial review should or should not be granted and whether the grant of such leave would result in any detriment to the good administration of the Immigration Department.  He further applied to the court to be excused from attending the leave hearing on 19 November 2014.

8.This court then ordered on 8 September 2014 that leave to apply for judicial review be granted for the applicant to challenge the Decision of TCAB and the hearing on 19 November 2014 was vacated.

9.On 12 September 2014, an Originating Summons was issued by the applicant pursuant to Order 53, rule 5 of the Rules of the High Court, naming TCAB and the Director as respectively the respondent and the interested party in these proceedings.

10.Upon “without prejudice save as to costs” correspondence between the applicant and the Director (through their respective legal representatives), with a view to saving public funds and time of the parties and the court, an agreement as to the disposal of these proceedings was reached save and except the issue of costs.  The outstanding question of costs was agreed to be dealt with by way of written submissions to be filed by the parties.  The Statement together with a draft Consent Order was accordingly filed on 27 November 2014 pursuant to Practice Direction SL3.  On 12 December 2014, this court made an order in terms of the draft Consent Order, which, inter alia, ordered that the Decision of TCAB be quashed; and the applicant’s torture claim be remitted to the TCAB for determination by a differently-constituted board.

B.    THE PARTIES’ RESPECTIVE POSITIONS ON COSTS

11.The applicant seeks his costs against the TCAB on the ground that its “procedural misconduct” in reaching the Decision was “blatant and obvious”.  In this regard, the applicant relies on, inter alia, R (Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543 as applied in Hong Kong in Orrico v Municipal Services Appeals Board, HCLA 24/2014 (Decision dated 1/12/14), and on the principles in R (Boxall) v Waltham Forest LBC [2000] All ER (D) 2445.  Further or alternatively, the applicant seeks his costs against the Director as the interested party and substantive respondent to these proceedings.

12.On the other hand, the Director invites the court to exercise its discretion in granting a costs order that there be no order as to the costs in these proceedings.

13.In this regard, the Director submits that: ―

(1) The Director has all along remained neutral in these proceedings and has taken no action at all to oppose the application for judicial review; it has been made clear that the Director was only involved to facilitate settlement of this case and out of his good intention to save time and costs and the court’s valuable resources.

(2) No letter before action had been served on the Director before the application for leave to apply for judicial review was taken out in this case.  The Director took the first available opportunity to settle this case after leave to apply for judicial review was granted and before any substantial costs were further incurred.

(3) It would be manifestly unjust for the Director, who remains a neutral interested party herein and whose decision in respect of the applicant’s CAT claim was not impugned by the applicant, to be liable for the applicant’s costs in these proceedings.

(4) There are likewise policy reasons in favour of no order as to costs in this application: the Director will be discouraged to take up the settlement of similar applications at an early stage if such a costs-conscientious move on his part is visited with an adverse costs order against him.

C.   DETERMINATION

C1.  The position regarding TCAB

14.In Pfeiffer GmbH v Cheung Hay Kit t/a Sun Wai Construction, CACV 245/2013 (Judgment dated 29/10/14), Kwan JA explained that with the advent of Civil Justice Reform, there was a move away from the more restrictive approach on the question of costs that had been adopted in the past.  Kwan JA went on to explain at paragraph 20 that: ―

“… Although the general rule that costs will follow the event still plays a significant part, it is but a starting point from which the court is more ready to depart, mindful that too robust an application of the general rule encourages litigants to increase the costs of litigation since it discourages them from being selective as to the points they take. And it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs of a particular issue on which he has failed.” (Emphasis supplied)

15.Although “costs will follow the event” is the starting point, the established practice in England is that no order for costs will generally be made against an inferior court or tribunal, like the TCBA, who neither appears in nor contests a successful application for judicial review against its decision, unless the case is exceptional in the sense that the inferior court or tribunal has behaved improperly and in a flagrant manner.  Brooke LJ had this to say in the Davies case, supra at paragraph 47: ―

“(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 [the applicant in Davies], 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.”

(Emphasis supplied) 

16.The Davies principles were applied in Hong Kong in the Orrico case referred to above.  In the Orrico case, Zervos J held that the test was satisfied by the MSAB’s decision (MSAB being the inferior tribunal in that case).  On the facts of that case, Zervos J held that the MSAB had made a number of fundamental and improper errors and mistakes and as a result the applicant had been unreasonably and unfairly treated.  His Lordship considered that the MSAB had engaged in flagrant improper conduct during the decision-making process and by its decision.  Accordingly, the MSAB was ordered to pay the applicants’ costs of the proceedings.

17.However, it should be noted that the Orrico case was decided after a substantive hearing of the application for judicial review had been held (see: paragraphs 5 to 8 of Zervos J’s decision).  The learned Judge concluded that the grounds for review were made out and he granted the applicants the appropriate relief.  He found that the MSAB had failed to properly consider the two appeals before it and to provide adequate reasons for its decision.  Significantly, Zervos J made particular findings which were relevant to the issue of costs that he had to decide.

18.This is to be contrasted with the present case, where the application for judicial review was settled without a substantive hearing.  This is where theBoxall case referred to above comes into play.

19.In England, the guidance followed by the courts in deciding costs on settlement of applications for judicial review has consistently been those set out in the Boxall case.  At paragraph 22 of that case, Scott Baker J set out six principles after reviewing a line of authorities: ―

“(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 being 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 fallback is to make no order as to costs.

(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.”

(Emphasis supplied)

20.The principles set out in Boxall were applied in Hong Kong in the recent decision of Au J in MAM v The Duty Lawyer Service, HCAL 79/2014 (Decision dated 15/04/15).  In that case, after a settlement, Au J awarded costs of the judicial review application in favour of the applicant against the proposed respondent.  In line with the Boxall principles, the learned Judge was of the view that with the materials before him, the applicant was obviously more likely to succeed at least on one of the grounds of the judicial review.

21.Combining the principles set out in Davies and in Boxall, I am of the view that costs should only be ordered against TCAB in the present case if I can come to a view with the materials before me at this stage that, had the substantive issues been fought to a conclusion, it is obvious that TCAB would have been found to have engaged in flagrant instance of improper behaviour.

22.In my view, the applicant has not established such a case.  I do not think that this is a case of flagrant improper behaviour on the part of TCAB.  I am of the view that the alleged errors on the part of TCAB, either individually or collectively, fell short of constituting “flagrant improper conduct”.  At worst, TCAB was aiming to achieve justice and that it tried its best but unfortunately committed errors in its decision making process.

23.For the reasons stated above, I decline to award costs against TCAB.

C2.  The position regarding the Director

24.The Director correctly accepts that if an interested party acted effectively as the respondent in resisting the application for judicial review, the interested party may be liable for costs if he fails to defend the application [see: eg, Ming Pao Newspapers Ltd v Obscene Articles Tribunal, HCAL 96 & 101/2007 (Judgment dated 9/01/09); and Chan Chi Sing v The Revising Officer, Mr Symon Wong, HCAL 132/2010 (Decision dated 24/06/11)].

25.On the other hand, if an interested party remains neutral and does not oppose the application, the usual rule is that no adverse costs order will be made against the neutral interested party [see: Chan Chi Sing v The Revising Officer, Mr Symon Wong, supra; and RA v Betty Kwan, Adjudicator, HCAL 115/2013 (Decision dated 31/12/14)].

26.In the Chan Chi Sing case, Au J allowed the judicial review application brought by the applicant and made a costs orderthat the 100^th interested party shall pay the costs of the applicant as he was the only party who had “actively opposed the application”.  Au J, after stating that even in public law litigations, costs is in the general discretion of the court, and the overriding starting principle is still costs should follow the event, unless there are good reasons to depart from it, had this to say: ―

“6. Applying these principles, I accept that the 100^th Interested Party should not be held liable for costs before he started to actively take part in the proceedings itself to oppose Judicial Review application after his solicitors filed Notice to Act. This is particularly so as the 116 People (as defined in the Judgment) including the 100^th Interested Party were only directed by the Court to be joined as interested parties.

7. But once so joined, it fell upon each of them to decide whether or not to take active part to oppose. I pause here to note that the Applicant has also not sought to vary the order nisi that there is no costs order against the other Interested Parties and Respondents who had not taken any active steps to oppose or had maintained a neutral stance to the Judicial Review.

8. However, once the 100^thInterested Party had consciously decided to oppose the Judicial Review actively, the position is different.

….

11.   Thus, looking at all the circumstances of the present case, I see no reason to depart from the general principle that costs should follow the event, save that I accept (as explained above), the 100^th Interested Party should not be liable for any costs incurred before 4 March 2011.”

(Emphasis supplied)

27.In the present case, the Director did not, of his own volition, request to join in these proceedings.  Moreover, the Director had not done anything (such as the filing of affidavit evidence) to oppose the judicial review application.

28.In the circumstances, I also decline to award costs against the Director.

D.   DISPOSITION

29.For the reasons stated above, I make an order that there be no order as to costs in these proceedings.

Mr Nigel Kat SC, instructed by Daly & Associates, for the applicant

Ms Bethany Choi, Senior Government Counsel, for the interested party