IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 865 OF 2013
DECISION ON COSTS
1. On 20 November 2015, for the reasons given in my decision on that date, in conjunction with which this decision should be read, Iadjourned the plaintiff’s application for leave to re-amend its statement of claim. The plaintiff has since revised its proposedre-amendments to leave out the claim for a conspiracy involving Ms Fredy Bush.
2. By an order dated 17 December 2015, the plaintiff was given leave to amend as per the revised proposed re-amended statement of claimannexed to the letter of the plaintiff’s Solicitors to the court dated 9 December 2015. By consent, the question of costs wasleft to be dealt with upon written submissions to be lodged.
3. Both parties have since made submissions. There can be no dispute that the costs of and occasioned by the re-amendment of the statementof claim should be to the defendants, and I so order.
4. The dispute concerns the costs of the defendants’ affirmation filed in opposition, the plaintiff’s reply affirmation and thehearing on 20 November 2015. Having considered the submissions these costs should in my view be borne by the respective parties;in other words, there should be no order as to costs.
5. The outcome as matters stand is that the plaintiff has in effect withdrawn its application for leave to amend insofar as it consistsof the addition of a claim for conspiracy involving Fredy Bush. However, the plaintiffs have expressly reserved the right to applyin future to re‑introduce that claim if so advised. I decline to draw the inference suggested by the defendants that the plaintiffhas no arguable basis in fact to plead that claim. Nevertheless, the defendants have succeeded in the result in resisting the amendmentin question. It can be said that had the plaintiff not sought to add that claim in the first place much of the relevant costs wouldhave been avoided.
6. But a substantial part of the hearing on 20 November 2015 concerned the form of the amendment and, as can be seen from my decisionof 20 November 2015, the plaintiff prevailed on that issue except in relation to the phrase “In the event that” in paragraph38 of the then draft pleading which I thought was confusing. The defendants contend that they had in fact also raised the evidentialargument prior to that hearing but in any event I did not consider that argument to have been clearly signalled in advance, hencethe adjournment to allow the plaintiff to respond properly.
7. In these circumstances exercising my discretion broadly I think that a fair order is that the disputed part of the costs should liewhere they fall.
8. There will therefore be an order that:
Written Submissions by Mr Russell Coleman, SC, instructed by Mayer Brown JSM, for the plaintiff
Written Submissions by Mr Anson Wong, SC and Mr Gary C C Lam, instructed by Stevenson, Wong & Co, for the 2nd defendant