IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 98 OF 2013
(ON APPEAL FROM HCAL NO. 75 OF 2013)
DECISION ON COSTS
Hon Lam JA (giving the Decision of the Court on Costs):
1. On 7 June 2013, we dismissed this appeal and directed submissions on costs to be filed by the parties. We now have the benefit ofconsidering the parties’ written submissions on costs. Here is our decision on the costs of this appeal.
2. For the reasons set out in our Reasons for Judgment of 24 June 2013, we were of the view that the appeal should be dismissed insteadof granting leave to withdraw at the request of Mr Dykes SC. In short, we held the view that judicial review was not appropriatewhen Mr Dykes’ client could and should have applied to the judge in the HCCC for the relevant relief. Thus, even if Mr Dykes proceededto argue the appeal instead of applying for leave to withdraw it, he would have failed.
3. It should be noted that the Kebilene point was not a new point. It had been alluded to by Mr Zervos SC at para 18 of his written submissions of 17 April 2013 placed beforethe judge below though reference was made to some local authorities instead of Kebilene itself. See also para 48 of the same document where reference was made to some other English authorities.
4. Thus, the appeal was doomed to fail and it should not have been continued after this court drew specific attention to the Kebilene point.
5. Mr Dykes tried to salvage his position as to costs by arguing that his client had got what he sought by way of appeal, namely thestop-gap protection in terms of the undertaking offered by Mr Zervos at the beginning of the undertaking.
6. With respect, we do not accept that as a valid ground for giving costs to Mr Dykes’ client. First, as submitted by Mr Zervos,the stop-gap point was not advanced below and whilst this court has the power to grant leave to amend the Form 86, it would not doso unless we are satisfied that the new grounds are at least reasonably arguable. The short answer in the present context is theanalysis on the Kebilene point is equally applicable with regard to stop-gap measure as much as permanent relief. There was no valid reason why Mr Dykescould not apply in the HCCC for stop-gap measure. Thus, we are not satisfied that leave to amend should be granted.
7. Second, we do not accept that Mr Dykes could not have obtained this stop-gap relief without bringing this appeal. Based on thehistory of the matter, the Secretary had all along acting responsibly in terms of not pre-empting the decision by the court on disclosure.Notwithstanding Mr Dykes’ submission to the contrary, we are not satisfied that the correspondence suggested that the Secretarywould not be willing to withhold disclosure of the disputed documents to the defendants in the HCCC if Mr Dykes’ client were tomake the appropriate application to the appropriate forum expeditiously. For the reasons we have already given in our main judgment,Mr Zervos was quite entitled to contest the application for judicial review in light of its potential impact on the HCCC.
8. Third, we view the application by Mr Dykes at the beginning of the appeal for withdrawal as a capitulation instead of a settlement. Given the exchange of the written submissions on the Kebilene point, it was quite obvious that the appeal would fail in any event. Thus, we do not find the authorities cited by Mr Dykes on costsin settled cases to be of much relevance for present purposes.
9. In the circumstances, we do not think there are any merits in Mr Dykes’ submissions on costs. The Applicant only has himself toblame by not making his application to the right forum and choose to proceed by way of judicial review in disregard of the Kebilene principle.
10. We order the Applicant to pay the costs of the Respondent, with certificate for three counsel.
Mr Philip Dykes, SC, Mr Earl Deng and Mr Robert Chan, instructed by Peter Mo & Co, for the Applicant (Appellant).
Mr Kevin P Zervos, SC, DPP, Ms Winnie Ho, SADPP (Ag), Ms Maggie Wong and Ms Betty Fu, SPP (Ag), instructed by Department of Justice,for the Respondent (Respondent).