ESQUIRE (ELECTRONICS) LTD v. THE HONGKONG AND SHANGHAI BANIING CORPORATION LTD AND ANOTHER

HCA11077/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.11077 OF 1994

——————————

BETWEEN

  ESQUIRE (ELECTRONICS) LIMITED Plaintiff
  and  
  THE HONGKONG AND SHANGHAI BANIING CORPORATION LIMITED 1st Defendant
  WAYFOONG PROPERTY LIMITED 2nd Defendant
  (formerly known as HS PROPERTY MANAGEMENT LIMITED)  

AND BETWEEN

  MAGIC SCORE LIMITED Plaintiff
  and  
  THE HONGKONG AND SHANGHAI BANIING CORPORATION LIMITED 1st Defendant
  WAYFOONG PROPERTY LIMITED 2nd Defendant
  (formerly known as HS PROPERTY MANAGEMENT LIMITED)  
(By Original Writ and Order to Carry On)

———————

Before : Hon Waung J in Chambers

Dates of Hearing : 14 December 2005

Date of Judgment: 14 December 2005

———————————————–

JUDGMENT ON COSTS

———————————————–

1. I have before me the question of costs of the Trial on liability which the Plaintiff has won. There is disagreement between the partiesas to timing, percentage and scale.

2. So far as timing is concerned, it seems to me as there was a split trial and the defendant fought all the way on liability that thereshould be an immediate order of costs against the Bank on trial of liability. Mr Jarvis for the 1st defendant says that I should defer making any order because on remedy the plaintiff might turn out to be not entitled to recoveranything. This seems to me to be highly unlikely but if that should happen then the costs of trial on remedy will reflect such consequence. But the Bank in my view, in the circumstances of this case should pay the costs of the trial on liability.

3. So far as percentage is concerned, I take into account what Mr Jarvis said and in particular about wasted costs by the plaintiffin various ways ranging from abandoning intimation, to taking bad points and to not giving full assistance to the court which wouldhave resulted in saving of time. In all the circumstances, I believe it will be fair that the plaintiff is to have 90% of the costsof the trial on liability.

4. So far as the scale of costs is concerned, I have taken into account what Mr Jarvis has put to me and it is true if one looks atsome old equity cases, whether Lloyds Bank Ltd v. Bundy [1975] QB 326 or other more cases, even cases of equitable fraud, there was no order of costs of indemnity. But times has changed and the moderntrend has made it much more widely acceptable in appropriate cases to order indemnity costs. So long as there are special featuresout of ordinary, it is quite in order for the court to order the costs on indemnity basis in appropriate cases. The judgment of Stock,J. (as he then was) in Choy Yee Chun v. Bond Star Development Ltd [1997] HKLRD 1327 is of course very helpful but every case of costs must turn on its special facts.

5. I have no doubt that the exceptional nature of this case calls for indemnity costs against the Bank. The Judgment on Liability isin very strong terms against the Bank and against the conduct of the Bank and held against the Bank on three basis. Even a glanceat the skeleton argument of the Bank on Recusal at paragraph 33 will indicate the extent of the disapproval of the Court. Strongwords were used in the Judgment as appear in paragraph 33 of the skeleton. In my judgment, taking into account all the circumstances,this seems to me not only an appropriate case, not only would it be right but it would be more than just and equitable that the Bankshould pay the costs on liability on an indemnity basis.

  (William Waung)
Judge of the Court of First Instance
High Court

Mr Martin Lee, SC, Mr Paul Harris and Mr Newman Lam, instructed by Messrs Ho Tse Wai & Partners, for the Plaintiff

Mr John Jarvis, QC, Mr Joseph Fok, SC and Mr Eugene Fung, instructed by Messrs Johnson Stokes & Master, for the 1st Defendant Bank