Mst v. The Duty Lawyer Service

CACV 179, 180, 181/2013
and CACV 18, 19/2014
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 179 OF 2013

(ON APPEAL FROM HCAL NO. 6 OF 2013)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 180 OF 2013

(ON APPEAL FROM HCAL NO. 7 OF 2013)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 181 OF 2013

(ON APPEAL FROM HCAL NO. 63 OF 2013)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2014

(ON APPEAL FROM HCAL NO. 78 OF 2013)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 19 OF 2014

(ON APPEAL FROM HCAL NO. 83 OF 2013)

________________________

________________________

(Heard together)

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JUDGMENT

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

1.In these appeals, the Applicants originally sought to challenge the following decisions of Au J [“the Judge”]:

(a)  his decisions of 16 August 2013 in HCAL 6, 7 and 63 of 2013 refusing to grant leave to apply for judicial review;

(b)  his decisions on 5 November 2013 ordering the applicants in HCAL 6, 7 and 63 of 2013 to pay the costs of the putative respondent;

(c)  his decisions of 22 January 2014 in HCAL 78 and 83 of 2013 refusing to grant leave to apply for judicial review; and

(d)  his decisions of 22 January 2014 in HCAL 78 and 83 of 2013 ordering the applicants in those applications to pay the costs of the putative respondent.

2.In all these applications for judicial review, the applicants tried to challenge the decisions of the Duty Lawyer Service [“DLS”] in assigning to each of them a different lawyer from the one they chose, namely Mr Daly, in representing them for the pursuit of their respective torture claims [“CAT claims”] with the Director of Immigration.  Since the filing of these appeals, their respective CAT claims were processed and subsequently there were applications to challenge the substantive decisions on these CAT claims by way of judicial review.  Thus, the substantive challenges in respect of the decisions of the DLS have been overtaken by subsequent events.  Actually, for reasons explained below, due to the processing of the CAT claims, irrespective of their outcomes and subsequent challenges to those outcomes by way of judicial review, we cannot see how these applications could bring about any practical benefit to the applicants.  One cannot help wondering whether, if these proceedings had not been funded by legal aid, these appeals would have been brought. 

3.By the time the matter came before us, Mr Dykes SC properly accepted that there was no point in pursuing the appeals against the refusal of leave and in those respects the appeals could be dismissed. However, Mr Dykes still maintained the appeals against the costs orders made by Au J.  He submitted that the proper order for costs in these applications for leave to apply for judicial review should be no order as to costs.

4.The main plank of Mr Dykes’ submissions was that application for leave to apply for judicial review is, as provided by Order 53 Rule 3(2), ex parte in nature.  Mr Dykes agreed that there were instances where the court might invite the attendance at the leave hearing by a putative respondent.  However, he submitted that should be the exception rather than the rule.  Whilst counsel had to accept that costs could be awarded in favour of a putative respondent at a leave hearing (as it has been so held by Tang VP, as he then was, in Sky Wide Development v Building Authority [2011] 5 HKLRD 202), he submitted that in the present cases costs should not have been so awarded.

5.In other words, counsel sought to challenge the exercise of discretion by the Judge on costs. 

6.In view of Mr Dykes’ submissions on the attendance of the putative respondent at the leave hearing in these cases, we need to set out the circumstances leading to the hearing before the Judge.  The Form 86 in HCAL 6 of 2013 was filed on 8 January 2013 and that in HCAL 7 of 2013 was filed on 9 January 2013.  On 13 March 2013, the Judge gave directions that there would be a leave hearing on 22 April 2013 and that the putative respondent shall attend with leave to the latter to file affirmation if necessary.  The Judge also gave leave to the applicants to file affirmation in reply.  Subsequently, due to representations from the parties as to availability of counsel, the hearing date was re-fixed to 18 June 2013.                

7.The Form 86 in HCAL 63 of 2013 was filed on 8 April 2013.  Similar directions were given.  The matter was heard together with HCAL 7 and 6 of 2013 on 18 June 2013.

8.Though these were not disclosed in the respective Forms 86, by the time when the applications for judicial review were filed, the CAT claims in respect of these applicants had been processed by the Director of Immigration at least in respect of the respective first tier decisions.  The applicant in HCAL 6 of 2013 is MST and his CAT claim was refused by the Director on 13 November 2012.  His petition was dismissed by an adjudicator on 10 January 2013, 2 days after the filing of HCAL 6 of 2013.  The applicant in HCAL 7 of 2013 is SR, whose CAT claim was dismissed at the first tier on 30 November 2012 and his petition was dismissed by an adjudicator on 25 January 2013.  The applicant in HCAL 63 of 2013 was MIC whose CAT claim was dismissed by the Director on 14 September 2012 and his petition was dismissed by an adjudicator on 25 October 2012. These applicants applied for legal aid to challenge the decisions of the Director and the adjudicators by way of judicial review.  And the Director of Legal Aid had assigned Mr Daly to act for them in those challenges. 

9.Mr Daly also acted for these applicants in the judicial review applications challenging the decisions of the DLS.  Despite so, the information as to the progress of the CAT claims and the assignments to him to act in the applications for judicial review on the CAT claims were not disclosed in the Form 86 of these applicants or the affirmations filed. 

10.At the hearing, apparently the information about the applications for judicial review in respect of the substantive decisions on CAT claims was before the court.  Mr Duncan SC on behalf of DLS advanced the submission that in light of these developments, the applications for challenging the DLS decisions should not be allowed to proceed.  The Judge agreed with this submission and this was one of his reasons for refusing leave, see his judgment of 16 August 2013 [“the August Judgment”], [50] to [53].

11.The grounds relied upon by the applicants in the Forms 86 alleged that the DLS had rigidly adopted a policy of even distribution amongst duty lawyers and failed to give sufficient weight to some relevant consideration to render the decisions of the DLS irrational in the public law sense.  It is noteworthy that the challenge was not made on the basis that fair distribution of works should not be a relevant consideration.  Rather, the challenges were formulated as challenges to the application of the policy in these instances.  The third ground of challenge (by reference to Art 35 of the Basic Law) was subsidiary to the two main grounds, see [7(2)] of the August Judgment.

12.However, the correspondence exhibited in the affirmation in support of the application for leave did not quite bear out these contentions.  The DLS had explained its position in various letters, including letters to Barnes & Daly as solicitors for the applicants and to the Director of Legal Aid.   

13.Despite such correspondence, the applicants’ evidence did not provide much information in several respects which, according to the correspondence, would be germane to the assessment on whether there is a reasonably arguable case of the DLS following an overly rigid policy of even distribution or failing to give weight to relevant considerations.  These were discussed at great length by the Judge in his August Judgment where he went through the correspondence carefully. There was prima facie a failure on the part of the applicants to address some relevant issues (in terms of providing relevant information on potential answers that could be put forward by DLS as the putative respondent).  It was under such circumstances that the Judge decided to invite the DLS to file evidence and to attend the leave hearing.  

14.There was no appeal against these case management directions.  Actually, the applicants had not raised any objection and evidence was filed accordingly.  Counsel argued the matter at the leave hearing on the basis of all the materials before the court.  

15.As has been explained in Leung Kwok Hung HCAL 83 & 84 of 2012, 28 September 2012, notwithstanding that an application for leave to apply for judicial review shall be brought by way of an ex parte application, the court may properly invite input from a putative respondent when circumstances so required.  Some of the instances were highlighted in that judgment and Mr Dykes also attempts a list of 7 examples where a hearing from a putative respondent can be justified.  However, given the multitude of cases where an application for leave could be made and the variety of cases in judicial review applications, it would not be wise to attempt to provide an exhaustive list of situations.  After all, it is a matter of case management discretion and the court must exercise that discretion with regard to the filtering purpose of the leave application.  Thus, the following was said in Leung Kwok Hung, supra.  at [34] to [35]:

“34. It has to be stated clearly and firmly that the purpose of the leave requirement is to filter out unmeritorious cases so that public administration would not be disrupted by such litigations. It is not in the public interest to devote disproportionate time and public resources on challenges which have no merit. The purpose of the leave requirement is NOT to enable a litigant (or those advising him) to come to court to get a second opinion from the judge as to the viability of the challenge. In considering how a leave application should be dealt with, the judge is not acting as the legal adviser of an applicant (who must look to his own lawyers for advice on the viability of his intended claim). Therefore, in deciding how a leave application should be processed and whether the putative respondent should be heard, and if so, the extent to which input should be sought from the putative respondent, the primary concern of the judge is to see which, in the circumstances of the case, is best way to achieve the filtering function.

35.   In Sky Wide, I have described the procedural directions for the disposal of a leave application as the exercise of case management discretion.  I still hold such a view and by way of dealing with Mr Lee’s submissions, I need to elaborate on it.  As Mr Lee rightly pointed out, an applicant bears a duty of full and frank disclosure in the ex parte application for leave and any breach of such duty may result in leave being set aside.  I should add that the duty of full and frank disclosure extends beyond disclosure of material facts, it also extends to disclosure of potential legal answers to the claims of an ex parte applicant. Unfortunately, this duty is not always observed.  In my experience as the judge in charge of the Constitutional and Administrative Law List, very often the court is not provided with all relevant information and adequate assistance in the papers filed on behalf of an applicant for the proper performance of its role in the filtering process.  Sometimes this may due to the fact that the applicant acts in person.  Sometimes it may due to the inadequate instructions given by an applicant to the lawyers.  Sometimes it may due to the inadequate investigation of the matter by the lawyers before launching the application. Sometimes it may due to the omissions on the part the lawyers in considering some relevant issues.  Sometimes it may due to the insufficient communication between the applicant and the relevant authority resulting in the applicant (and those advising him) not having a full grasp of the reasons for the decision or the decision-making process.”

16.Also, at [37(b)]:

“ But the fact remains that in many cases judges reading the papers for leave require further information and assistance before he or she can be satisfied that the case is reasonably arguable. In addition to the situations mentioned above, the following factors also contributed to the need for asking inputs from the putative respondents, …

(b)  There are instances where those acting for applicants only focus on an applicant’s challenge in the material presented to the court without giving serious considerations to the potential answers which a putative respondent may have in respect of the challenge.  The court from time to time encounters cases where an advocate, even doing his best in fulfilling his duty in an ex parte application, unwittingly failed to give comprehensive and adequate assistance to the court in terms of the presentation of the potential answers of his opponent;”

17.And at [41],

“ But there are cases where the judge may consider that in the circumstances it would be more appropriate to hear from the putative respondent at an oral hearing ... As I have stressed before, it is a matter of case management discretion for the judge handling the leave application. The exercise of such discretion is guided by the underlying objectives in Order 1A and the primary concern is the proper, efficient, fair and expeditious performance of the court’s filtering role in a leave application. Chief Justice Li recognized in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 17 that in appropriate cases the court should notify the putative respondent of the leave hearing.”

18.Whilst the practical effect of a leave hearing may enable an applicant to test whether his case is viable (and Mr Dykes referred us to some authorities suggesting this to be the case[1]), it cannot be the primary purpose of a leave hearing.   The court does not play the role of giving a second opinion to an applicant.  The primary purpose and the only legitimate consideration at a leave hearing is the filtering of unmeritorious cases so that public administration would not be disrupted by such litigations.         

19.In the present cases, we cannot see how the Judge could be criticized for giving the case management directions in the way he did. 

20.The fact that a putative respondent has been invited to attend or to file evidence at the leave stage does not by itself warrant costs being awarded in his favour if leave is not granted.  This was acknowledged by the Judge, see [15] of the decision on costs on 5 November 2013 in HCAL 6, 7 and 63 of 2013 [“the November Costs Judgment”].

21.Before we consider the Judge’s reasons for awarding costs in these cases, it is helpful to remind ourselves of the relevant principles which have recently been discussed by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at [17]:

“ The basic principle at first instance

(1) The basic principle remains that costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant. Notwithstanding the guidance that follows, there may be exceptional cases in which the discretion, which is a broad one, may be properly exercised otherwise than it would in other cases.

(2) Since applications for leave to apply for judicial review are, by the rules themselves, meant to proceed on an ex parte basis, the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent or putative interested party unless there are special or unusual circumstances which justify such an award. The discretion of making an award of such costs should be sparingly exercised. Good reason will therefore be required in order for the court to make an order in relation to these costs against an applicant.

(3) There is no definitive list of reasons that may justify an award of costs against an applicant and in favour of a putative respondent. As already indicated, the discretion as to costs is broad. All facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.

(4) Without limiting what the court will take into account, it will certainly be relevant to focus on the reason that has led the opposing party to attend at the hearing, whether that party’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application, always bearing in mind that the context is the end result that the court has refused to grant leave to apply for judicial review.

(5) By way of example of these particular considerations: if the putative respondent or putative interested party has attended at the invitation of the court, the reason why the court has considered that party’s presence necessary will be relevant; so too, if the opposing party’s presence at the hearing may have been necessary because of an application for interim relief; if an application was thoroughly ill-conceived or unmeritorious, this may be a weighty factor justifying an adverse costs order; similarly, if it was so frivolous or vexatious, or motivated for a tactical purpose indicating bad faith; where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing. These considerations may or may not justify a costs order in favour of a putative respondent and it is important to stress that the ultimate decision remains in the discretion of the judge.

…

Reviewing the judge’s exercise of discretion

(7)   The first instance judge’s decision being an exercise of discretion in relation to costs, it will only be subject to challenge on appeal on the normal limited grounds applicable to an appeal against such an exercise.”

22.It must be accepted that these are the guiding principles in Hong Kong for considering the award of costs in favour of a putative respondent at the leave stage. 

23.Initially the Judge made a costs order nisi in HCAL 6, 7 and 63 of 2013 that there would be no order as to costs.  The DLS applied to vary the same.  After hearing the parties, the Judge ordered on 5 November 2013 that the applicants in these applications shall pay the costs of the DLS.  Though the Judge did not have the benefit of the judgment of the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2), supra, he referred to the previous case law in Hong Kong on the topic and correctly had regard to the principle that the court would only award costs at the leave stage where there are unusual or exceptional circumstances to justify doing so (see [4] of the November Costs Judgment). 

24.Amongst the four matters relied upon by Mr Duncan to seek costs on behalf of the DLS, the Judge placed more emphasis on the second matter, viz the applicants in effect had a rolled-up hearing of the intended judicial review applications.  He explained at [8] to [14] of the November Costs Judgment why he held the view that the applicants had effectively had a substantive hearing on the merits of their claims.  At [10], he pinpointed the central issue: the reasons of the Administrator in her decisions to refuse to assign the cases of the applicants to Mr Daly.  At [11], he reiterated the conclusion he reached in his substantive decision:

“ it is clear from the objective evidence that in making the relevant decisions, the Administrator had taken into account (a) the relevant pre-existing client-solicitor relationship … and (b) the Performance Factor …”

25.He went on to say:

“ These thus have effectively dealt with the substantive bases and arguments raised under Grounds 1 and 2. The dismissal was not based on any arguments on preliminary issues …”

26.At [17], the Judge further said:

“ … if leave had been granted … DLS would still have succeeded in opposing the judicial review at the substantive hearing for the reasons I have summarised above. DLS would have been entitled to costs in that event. It would be thus exceptional to deprive DLS its costs because it was invited by the court to participate at the leave hearing, and its presence enabled the court to dispose of the applications effectively substantively at an earlier stage.”

27.Mr Dykes submitted that it was against the legislative intent in respect of Order 53 for the court to take account of the rolled up hearing factor in exercising its discretion on costs.  With respect, this submission is obviously wrong.  As the Court of Final Appeal said, notwithstanding the provision for an application for leave to apply for judicial review being made on ex parte basis, the discretion on costs at the leave stage remains a broad and flexible one.  It has to be exercised as the particular circumstances of the case and justice warrant.  There is no definitive list of reasons that may justify an award of costs against an applicant and in favour of a putative respondent.   All facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.

28.It is also noteworthy that in the examples given at [17(5)] of the judgment in Leung Kwok Hung v President of the Legislative Council (No 2), supra, the Court of Final Appeal gave these as examples for particular consideration:

“ if the putative respondent or putative interested party has attended at the invitation of the court, the reason why the court has considered that party’s presence necessary will be relevant; … if an application was thoroughly ill-conceived or unmeritorious, this may be a weighty factor justifying an adverse costs order; … where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing.”

29.These were of course given as examples and the court said in the same sub-paragraph that these considerations may or may not justify a costs order in favour of a putative respondent.  However, it shows that as a matter of law, it could not be said that the Judge was wrong to take this factor into account.  As emphasised by the Court of Final Appeal, how this factor is to be weighed in light of other relevant factors is a matter of the discretion of the judge.

30.The relevance of this factor is not something new.  It has been so decided in Sky Wide Development v Building Authority [2009] 1 HKC 450 and Re Ho Mei Ling (No 2) [2012] 1 HKC 400.  And these were based upon similar considerations being regarded as relevant in England, see R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, [76 (5)(d)].

31.We wish to emphasise that this factor applies not only where the court had directed a rolled up hearing, it also applies in cases where for one reason or another, “the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing”.  In our judgment, this was precisely what had happened at the leave hearing of HCAL 6, 7 and 63 of 2013 in June 2013 before the Judge.

32.Mr Dykes submitted that the applicants did not have the benefit of discovery and testing the evidence of the Administrator by cross-examination and because of that they could not have been said to have had the full benefit of a substantive hearing of their challenges.  We do not agree. The real issue in these cases was whether the applicants had public law grounds to challenge the application by DLS of its policy on assignment of lawyers.  As mentioned above, the challenges focused on the rigid adhesion to a policy of even distribution of works and the failure to give due weight to the pre-existing client and solicitor relationship.  Once the objective evidence clearly showed (as found by the Judge, and in our view correctly) that there had not been rigid adhesion to a policy of even distribution and due consideration had been given to the pre-existing solicitor and client relationship, there could not be any viable challenges based on the grounds set out in the Forms 86.  It does not matter whether Mr Daly could have satisfactory explanations for his handling of other cases and whether the Administrator could have weighed these factors differently if more information was placed before her. It is not the court’s business to second-guess what would be the outcome in such hypothetical weighing process.  For the reasons given by the Judge in his August Judgment at [47] and in his November Costs Judgment at [12] and [13], he was quite entitled to come to the conclusion that the discovery and cross-examination requested by the Applicants could not avail them at all.  We firmly reject Mr Dykes’ submission that the outcome of the substantive hearing could have been different if leave were granted.

33.On the whole, we cannot see any valid basis for this court to interfere with the Judge’s exercise of his discretion on costs in respect of HCAL 6, 7 and 63 of 2013. 

34.In respect of the other sets of proceedings, the applicant in HCAL 78 of 2013 is R and his CAT claim was refused by the Director on 14 September 2012.  His petition was dismissed by an adjudicator on 24 October 2012.  He filed his Form 86 in HCAL 78 of 2013 on 29 April 2013 to challenge the decision of the DLS.  On 21 May 2013, he filed his Form 86 in HCAL 90 of 2013 to challenge the decision of the adjudicator in the CAT claim.  The applicant in HCAL 83 of 2013 is PAV, whose CAT claim was dismissed at the first tier on 18 September 2012 and his petition was dismissed by an adjudicator on 1 November 2012.   He filed his Form 86 in HCAL 83 of 2013 on 7 May 2013 challenging the decision of the DLS.  On 16 May 2013, he filed his Form 86 in HCAL 88 of 2013 to challenge the decision of the adjudicator in the CAT claim.  

35.In their original forms, the grounds advanced in the Forms 86 in HCAL 78 and 83 of 2013 were similar to those advanced in the earlier proceedings discussed above.  In their original forms, they suffered from the same deficiencies in terms of the information placed before the court as in the other cases as stated at paragraph 13 above.  The Judge gave directions on 21 October 2013 for the attendance of DLS at the leave hearing and the filing of evidence by DLS. There was no objection on the part of the applicants to those directions. Evidence was filed accordingly and Mr Daly responded to such evidence. Submissions were advanced at the leave hearing based on all the materials before the court.  

36.After the August Judgment and the November Costs Judgment, the applicants in these 2 sets of proceedings amended their Forms 86 in January 2014 at a very late stage, dropping the challenge based on rigid adhesion to the policy of even distribution and concentrated on insufficient weight being given to the pre-existing solicitor and client relationship.  They also added allegations on a quota policy and the assignment of other cases to Mr Daly to demonstrate that there should not be any performance concern.

37.The amendments in January 2014 also added information about the progress of these applicants’ CAT claims.  They tried to justify the applications for judicial review against the DLS notwithstanding such developments at the new para 37A of the Form 86 in HCAL 78 of 2013 and para 35A in HCAL 83 of 2013.  These paragraphs were identical and read as follows:

“ Fourthly, this application is not academic despite the fact that the torture claim of the Applicant has already been decided both on the initial screening and petition stage by the Director of Immigration and the Torture Claims Appeal Board. Should the Applicant succeed in quashing the Adjudicator’s decision against their claim for protection, the Applicant will request Mr Daly to be his choice of duty lawyer due to the strength of their pre-existing solicitor-client relationship. Mr Daly who is a leading practitioner will most likely be operating at all times at the limit of the DLS quota policy and thus similar considerations will continue to apply. Further, as the DLS may also be operating in a similar capacity under the upcoming USM scheme, the Applicant will be making the same request to the DLS to assign Mr Daly as his duty lawyer on an identical basis (i.e. the longstanding pre-existing solicitor-client relationship). The question of what weight the DLS should give to the pre-existing relationship between the Applicant and his lawyer of choice therefore remains very much a live one.”

38.Notwithstanding the hearing date of these leave applications had been fixed and notified to the parties on 31 October 2013, the applicants only put forward the amendments to their Forms 86 on 13 January 2014, just 4 days before the hearing on 17 January 2014.  It is obvious that those representing the applicants had reconsidered their case in light of the August Judgment and November Costs Judgment.  That should have taken place soon after the handing down of those judgments as Mr Daly represented all these applicants in these proceedings.  It should be apparent to Mr Daly (and he should have advised these applicants in light of the August Judgment and the November Costs Judgment) that the chance of getting leave based on the original grounds was remote.  If there were works to be done to salvage the applications in HCAL 78 and 83 of 2013, they should have been done even before the Judge gave the directions on 21 October 2013.  Yet, nothing was filed or lodged on behalf of the applicants in HCAL 78 and 83 of 2013 until 13 January 2014.  In addition to the amendments to the Forms 86, Mr Daly also filed his affidavit on 13 January 2014.  This necessitated the Judge giving directions on 14 January 2014 with a view to deal with the new grounds advanced on 17 January 2014, including directions for filing additional evidence by the DLS to deal with the new grounds. 

39.No good explanation was given for the apparent dilatoriness on the part of the applicants and those acting for them in these respects. 

40.After hearing the parties on 17 January 2014, the Judge refused to grant leave on 22 January 2014.  In his judgment of that date [“the January Judgment”], as Mr Dykes did not advance further submissions on the original grounds, the Judge rejected the same based on his reasoning in the August Judgment.  In respect of the new grounds, the Judge explained why he did not regard them as reasonably arguable at [17] to [23] of the January Judgment.  The Judge correctly identified that the issue before him was not the substantive merit on the concerns as to Mr Daly’s performance in other cases, rather the question was whether in the circumstances, the refusal to assign the cases to Mr Daly could be said to be Wednesbury unreasonable.  At [20], the Judge said:

“ It is not disputed that the Administrator was entitled to (and in fact should) take into account Mr Daly’s performance in other cases to decide whether to assign him to other applicants. There is at least sufficient prima facie materials and information before her to raise the concern about the performance issue of Mr Daly…”

41.And at [21], the Judge dealt with the reliance placed on other additional cases assigned to Mr Daly:

“ Further, in relation to the assignment of Mr Daly in the other additional cases notwithstanding the quota and the performance concern, given the very special circumstances and factors as identified by the Administrator in those cases, I do not find it reasonably arguable that those incidents per se render her present Decisions irrational or unreasonable as submitted by Mr Dykes. Quite to the contrary, it demonstrates that the Administrator had not adhered strictly to the Policy or quota system, and had in her exercise of discretion taken into account the individual circumstances of each case. This is precisely what the applicants say she should have done in each case.”

42.On the utility of these proceedings and the applicants’ justification for the same despite the developments in the processing of the CAT claims, the Judge rejected their justification at [26] and [27]:

“`26. The present applications are disposed of on the basis of the evidence as at the time of the Decisions. Similarly, whether the Administrator would in the future decide to assign or not to assign the applicants’ preferred choice of lawyer (even if it is still Mr Daly) under the DLS CAT Scheme for the USM Scheme must also be predominantly fact sensitive. It may depend, for example, on whether at that time, under the context of the Policy, the Administrator still has justifications to be concerned with the fact that Mr Daly is overloaded with cases which has affected his ability to discharge his duties professionally, personally and in a timely manner. It may also depend on whether as at that time, the applicants would have provided further or other justifications for having Mr Daly as their representing lawyer.

27.Therefore, I would have also refused the leave applications on the basis that the intended judicial review are academic in nature.”

43.This should be read in light of the scope of the challenges as presented to the Judge as set out at footnote [6] of the January Judgment:

“ Mr Dykes has repeatedly emphasised that he is not challenging the legality of the Policy itself and he is also not submitting that an applicant has an absolute right to the choice of lawyer under the duty lawyer scheme.”

44.The Judge also awarded costs to the DLS in these proceedings.  In addition to the reasons he gave in the November Costs Judgment, the Judge agreed with Mr Duncan that in light of the August Judgment and the canvassing of the new grounds based on substantially the same evidence, the applicants should have known that these applications were without merits even with the new grounds.

45.The matters the Judge took into account are all relevant matters according to Leung Kwok Hung v President of the Legislative Council (No 2), supra.   We have already discussed about the relevance of this being in substance a full hearing of the arguments.  We see no reason to disagree with the Judge that this was also the case in respect of the leave hearing on 17 January 2014.  The significance of the assistance provided by the DLS and the obvious lack of merit of the applications are also relevant factors. 

46.In respect of the complete lack of prospect of getting leave, we only wish to add our observations on one point.  As we have highlighted at various parts of this judgment, these applications to challenge the decisions of the DLS regarding the assignments of some lawyers other than Mr Daly are confined to the assignments on these particular occasions.  As the Judge rightly observed, whether the DLS or the Administrator failed to give due weight to the pre-existing solicitor and client relationship must be examined against the prevalent circumstances at the time when the decisions were made.  A finding that on these occasions due account had been given to this factor would not preclude another challenge on another set of facts or circumstances.  Once it is accepted that there is no question of the DLS following a policy of assignment with undue rigidity, the challenges must be fact sensitive. 

47.In view of that, the utility of these applications is highly questionable when the underlying CAT claims had all been processed and spawned other applications for judicial review in respect of the CAT decisions.  In our judgment, the Judge quite rightly concluded that on this ground alone leave should have been refused. The justification provided in the amended Forms 86 in HCAL 78 and 83 of 2013 is plainly misconceived.

48.Mr Dykes submitted that in view of the outcome of the first set of proceedings, the Judge should not have directed for the filing of evidence and attendance of the DLS at the leave hearing for HCAL 78 and 83 of 2013.  With respect, we cannot accept this submission.  First, the evidence filed in HCAL 6, 7 and 63 of 2013 was not evidence in HCAL 78 and 83 of 2013.  As the Form 86 and the evidence filed on behalf of the applicants in HCAL 78 and 83 of 2013 suffered from the same deficiency as in the earlier proceedings, the Judge could not be criticised for making similar directions in those proceedings.  Second, after the August Judgment, the applicants did not file or lodge any supplemental evidence or amend their Forms 86 (until January 2014).  The Judge was entitled to consider that he should give the directions to facilitate the proper consideration of the leave applications in HCAL 78 and 83 of 2013. 

49.Further, as there was no objection or appeal against these directions given by the Judge and parties had addressed the Judge on all the materials before the court at the leave hearing on 17 January 2014, it would not be fair to allow the applicants who failed on the substantive merit of their applications after having the benefit of such full argument to resist costs on the basis that no such directions should have been given.  Otherwise, this would be tantamount to an appeal against such procedural directions (made by the Judge in the exercise of his case management power) out of time and without leave being sought.   

50.We do not discern any valid reason for this court to interfere with the Judge’s exercise of discretion in granting costs to the DLS in HCAL 78 and 83 of 2013.

51.The appeals against the costs orders made by the Judge are dismissed accordingly.  We are further of the view that in view of the lack of utility of these proceedings as explained above, and the lack of merits in the appeals against the costs orders, these appeals should never have been brought.    

52.In respect of the costs of the appeal, the Court of Final Appeal set out the relevant principles at [17(8) to (10)].  The starting point is that costs should follow the event.  In light of what has been said in respect of the scope of the challenges in these proceedings and their limited relevance to other cases of DLS assignment, we are not satisfied that there is any element of public interest litigation which warrants our departure from the normal rule.  We therefore order the appellants to pay the costs of the DLS in these appeals, such costs are to be taxed if not agreed.        

53.In respect of legal aid taxation of the appellants’ own costs, we wish to make these observations.  The firm of Mr Daly was assigned by the Director of Legal Aid to act for these applicants in these appeals (as well as below).  Whilst there may be good reasons for assigning these cases to Mr Daly, given his role in these disputes between the appellants and the DLS, the likelihood of him being required to give evidence (so far by way of affidavits), the nature of the relief sought by the applicants and the apparent lack of utility of these proceedings for the reasons given above, it may be questioned whether it is appropriate to do so.  Such an assignment could give rise to an impression, perhaps mistaken, to lay persons in the society that Mr Daly is the real protagonist in these matters and he acted both as a lawyer on public funds and a witness in the proceedings.  We venture to suggest that this should be a relevant consideration in the assignment of cases.  However, ultimately it is a matter for the Director of Legal Aid.  As far as the present appeals are concerned, we would order legal aid taxation of the appellants’ own costs.

Mr Philip Dykes SC and Mr Earl Deng, instructed by Daly & Associates, assigned by DLA, for the applicants

Mr Peter Duncan SC and Ms Tanie Toh, instructed by Lo, Wong & Tsui, for the putative respondent