IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 344 OF 2007
Before: Hon Chung J in Chambers
Dates of Hearing: 10 September and 3 November 2009
Date of Decision: 3 November 2009
Date of Handing Down Reasons for Decision: 16 November 2009
REASONS FOR DECISION
1. In a judgment handed down on 20 November 2008 (after the trial of this action), a costs order nisi was made in the plaintiffs’ favour as follows:-
No application was made to vary the order; it became absolute subsequently.
2. This action was tried on 19 to 21 & 23 November 2007 and 4 to 5 and 7 to 8 August 2008. In a ruling handed down on 11 January2008, it was ruled that:-
3. The costs order dated 11 January 2008 awarded the following costs in the plaintiffs’ favour:-
The said order included certificates for two counsel in respect of both sets of costs.
4. Those costs came to be taxed by the master. In a “Note of Ruling” dated 21 August 2009, the master recorded that the plaintiffs’costs for preparing the expert evidence should not be allowed, and gave reasons for so deciding. It is common ground, however, thattaxation of costs has not been concluded, but was adjourned on 21 August 2009 pending the outcome of this application.
5. The “Note of Ruling” set out two reasons for disallowing the above-mentioned costs:-
6. The plaintiff took out this application on 20 August 2009, purportedly pursuant to RHC Ord. 20 r. 11 and the court’s inherentjurisdiction. D1 opposed this application. At the end of the hearing, I dismissed the application, indicating reasons for doingso would be handed down later. They are as follows.
7. The first ground of opposition put forth was that this application does not fall within either the said rule or inherent jurisdiction.
8. The commentaries to Ord. 20 r. 11 explain the court’s powers under that rule:-
9. The court’s inherent jurisdiction is also summarized there:-
10. But the powers are not unlimited:-
Of particular relevance to this application is the following commentary:-
11. Instances where the courts have refused applications similar to the present included:-
12. D1 relied on the court of appeal’s judgment in The Bank of China v. Xinyuan Trading Co. Ltd. and Another, CACV 276/1998 (21 June 2000). The appellant applied to include a certificate for two counsel which was not part of the originalcosts order. In refusing the application, the court said:-
This is similar to what was involved in this application.
13. The plaintiffs submitted that the court would have given the direction sought in this application if it had been sought at the time. But if such course had in fact been taken, it is highly likely D1 would have sought to address the court on the issue: see similarobservations in The Bank of China above, p. 3. The issue was therefore not one which can properly be regarded as “a clerical mistake” or “an accidental slip or omission”.
14. To avoid doubt, the remarks in para. 13 above are not intended to indicate if the costs of the “inadmissible” expert evidenceshould or should not be allowed on taxation pursuant to the costs orders referred to in para. 1 and 3 above.
15. The language used in the costs order referred to in para. 1 and 3 above is clear. They are “conventional orders” in the senseboth that costs are a common feature in civil litigation and that the language used is commonly seen in similar orders.
16. How the language used in those costs orders is to be understood is something entirely within the precinct of the taxing master untilthe conclusion of the taxation of costs before him.
17. The other ground of opposition concerned the substantive merits of this application, namely, whether the costs relating to the expertevidence, having been ruled “inadmissible”, ought to be recoverable on party-and-party taxation.
18. Because I have concluded the plaintiffs had failed to establish a proper basis for making this application, and the taxation beforethe master has not been concluded, I will refrain from commenting on this aspect of this application at present.
19. The plaintiffs have fairly accepted that, because of the language used in the “new” Ord. 62 r. 33 (especially Ord. 62 r. 33(1)(a)and (2)), this application cannot be treated as a review of taxation by the judge.
Mr Patrick Fung, SC instructed by Messrs Wilkinson & Grist, for the Plaintiffs
Ms Audrey Eu, SC leading Mr Willard Li, instructed by Messrs Kao, Lee & Yip, for the 1st Defendant