CACV 383/2007







YIU HON LAM(姚漢林) Plaintiff
CHAN YU CHUN(陳汝珍) Defendant


Before: Hon Tang VP, Cheung JA and Lam J in Court

Date of Hearing: 6 March 2009

Date of Decision: 6 March 2009

Date of Reasons for Decision: 12 March 2009




Hon Tang VP:

1. Although the plaintiff’s claim for damages for defamation was dismissed, District Judge Simon Leung ordered the defendant to payhalf of the plaintiff’s costs.

2. The defendant’s appeal was allowed to the extent that the plaintiff was ordered to pay the defendant 80% of her costs below.

3. We made an order nisi that the plaintiff pays the defendant costs of the appeal.

4. This is the plaintiff’s application to vary the order nisi.

5. Several reasons have been advanced in support of the application.

6. First, the plaintiff had made a Calderbank offer to the defendant to settle the appeal on terms that there be no order to costsin respect of the trial and the appeal.

7. We were told that there was no response from the defendant to the plaintiff in respect of this Calderbank offer. I do not believea party who has made an inadequate payment into court can complain if the other party did not respond to the payment into court. Nor should a Calderbank offer be regarded as the opening salvo in a negotiation. The plaintiff cannot complain if it had offeredtoo little. In this case, the Calderbank offer fell substantially short of what the defendant had obtained from this court.

8. We were also told that there were subsequent without prejudice negotiations but that the content of such negotiation could not bedisclosed to us. So much for that.

9. The second reason is that the defendant had not wholly succeeded because the defendant only obtained 80% of the costs of the trialinstead of 100% she had asked for in the appeal.

10. In Waddington Ltd v. Chan Chun Hoo Thomas and Ors, unreported, FACV 15/2007, dated 14 November 2008, Bokhary PJ and Chan PJ said in their joint judgment (with the concurrence of theother members) on costs:

“9. … There can be circumstances in which it would be appropriate to make an order as to costs that deprives the substantial winnerof some of his costs for the reason that his arguments on one or more points have not prevailed. But in the present circumstancesWaddington’s victory was so substantial in practical terms that there is no reason why the costs in this Court should not followthe event. …”

11. Here, the defendant was the real winner and her victory was substantial. In such circumstances, I do not believe she should bedeprived any part of the costs of the appeal.

12. Mr Tibbo submitted that although she was the real winner, she had not won everything she wanted because she only got 80% of thecosts below. But as Waddington Ltd shows that is not necessarily a reason for depriving her of some of the costs. Mr Tibbo also submitted that it was the defendant’sfault that she was unrepresented at the costs hearing below so she was unable to assist the learned judge. I do not believe thatis a good reason to deprive her of any of the costs of the appeal.

13. Lastly Mr Tibbo referred to the fact that before the trial the plaintiff had offered to settle on terms that the defendant shouldpay him his costs then estimated at $230,000. I fail to see how it could assist the plaintiff. Then it is said that the defendanthad failed to properly respond to the plaintiff’s settlement overtures. I believe it is undesirable to penalise the successfulparty on costs for not responding to wholly inadequate offers. It is better that costs should follow the event. Parties who wantto be protected on costs should make adequate offers. When a plaintiff brings a claim it is salutary that he should know the generalrule is that if he fails, he will have to pay the costs. Time and costs should not be spent investigating the ebb and flo of anynegotiation which the parties might have engaged in.

14. I would make the costs order nisi absolute. The plaintiff must pay the costs of this application, such costs to be taxed if notagreed. The application is so devoid of merits that I have given serious consideration to ordering that costs should be paid onan indemnity basis. In the end I have decided not to do so.

Hon Cheung JA:

15. I agree.

Hon Lam J:

16. I agree.

(Robert Tang) (Peter Cheung) (M. H. Lam)
Vice-President Justice of Appeal Judge of the Court of First Instance

Mr. Robert J.H. Tibbo, instructed by Messrs Henry Chiu & Partners, for the Plaintiff.

Mr. Damian Wong, instructed by Messrs Chan, Tang & Kwok, for the Defendant.