Komal Patel and Others v. Chris Au and Others

HCA 183/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 183 OF 2014

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DECISION ON COSTS FOR DISCOVERY APPLICATIONS

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1.On 27 April 2015, I gave judgment in relation to two separate applications by the plaintiffs and the 1^st defendant respectively each seeking specific discovery from the other. On the question of costs, I ordered that there be an order nisi that costs be in the cause.

2.The plaintiffs seek to vary the costs order nisi and invite the Court to award costs in their favour in relation to the two applications.

3.It is fair to say that the specific discovery sought by the plaintiffs was largely successful, whereas the specific discovery sought by the 1^st defendant, whilst narrower in scope, was only partially successful. 

4.A court has a wide discretion in deciding the issue of costs and can take into account a range of relevant matters, including the conduct of the parties and the outcome of the case.  See Order 62, Rule 5 of the Rules of the High Court, Cap 4A.

5.The plaintiffs submit that the 1^st defendant had unreasonably raised allegations and issues in respect of his discovery application.  This they submit required them to address matters that had no merit and deal with the application in the face of an acknowledgement by them that certain documents would be provided even though the 1^st defendant was not entitled to them.  The plaintiffs submit that the 1^st defendant’s conduct wasted the Court’s time and that his discovery application could have been disposed of by consent.

6.The plaintiffs also submit that all three defendants unnecessarily contested their discovery application raising arguments that were rejected by the Court.

7.The 1^st defendant agrees with the order nisi that costs be in the cause.  He submits that there had been correspondence between the parties over the issue of specific discovery and that the plaintiffs embarked on their application without notifying or requesting him to disclose documents.  He points out that the plaintiffs’ application was too vague and wide and had to be amended in the terms and scope of the documents they originally sought.  He also submits that the plaintiffs were not successful in all the classes of discovery they sought and he successfully obtained discovery of some of the documents he sought except for the documents in relation to Essence Investments Limited (Essence) which may, in the final outcome of this dispute, prove should have been granted.  It is on this basis that the 1^st defendant submits that it is fair that the costs order be in the cause with the benefit of a substantive determination, in particular in relation to the ownership of Essence. 

8.The 2^nd and 3^rd defendants also oppose the plaintiffs’ application.  They too submit that in the absence of any substantive determination of the merits of the claims of the parties that the only fair costs order at the present interlocutory stage is for costs to be in the cause.

9.Having carefully considered the submissions of the parties, I have decided to maintain the costs order that I have made even though the plaintiffs were largely successful in their application.  This undoubtedly will be borne in mind upon the final outcome of these proceedings and when the final order for costs is made. 

Messrs Robertsons, Solicitors for the plaintiffs

Messrs Tanner De Witt, Solicitors for the 1^stdefendant

Messrs Au & Vrijmoed, Solicitors for the 2^nd and 3^rddefendants