HCA 1457/2005




ACTION NO. 1457 OF 2005



  YOSHITO HANDA 1st Plaintiff
  KENICHI SAWABE 2nd Plaintiff
  HAJIME KIMURA 3rd Plaintiff
(also known as CHAN HING KWONG)
1st Defendant
CHEN SHAU ENIG 2nd Defendant
CHAN KA MING 4th Defendant
CHRIS LEE 5th Defendant
STEVEN KWOK 6th Defendant


Before : Hon Stone J in Chambers (Open to Public)

Date of Hearing : 6 December 2005

Date of Decision : 16 January 2006




The application

1. This is an application for costs consequent upon an ex parte on notice application which was made before this court, sitting in its capacity as duty judge, at 4.45 pm on 28 July 2005.

2. The substantive application as made on that date was in an attempt to ensure that an email mistakenly sent to the defendant shouldbe deleted from the defendants’ records and hard copies, if any, delivered up to the plaintiffs.

3. In the event, the application occupied this court for but 10-15 minutes, and was adjourned to 2.30 pm the following day, 29 July2005.

4. This adjourned date was vacated by consent, and the particular issue in dispute was settled. However, the parties, whose conductbetrays very obvious mutual antipathy in terms of ongoing litigation between them and of this discrete matter collateral to thatmain litigation, have been unable to agree on the costs of this compromised ex parte application, and have returned to this court, at the defendants’ behest, for this issue to be argued.

5. Quite why it should be thought appropriate to ventilate this matter before a court which has had only the most minimal exposure tothe substantive application is unclear, but sadly it has appeared necessary to spend considerable further costs in order to convenea hearing to argue about costs. Indeed, following this hearing argumentative discourse continued between the parties, and no fewerthan five further letters were visited upon this court, to none of which have I accorded any weight. For my own part I do not believethat the interests of respective clients can be served by conducting litigation in this manner.

The argument

6. In broad terms there are two costs’ elements which are in issue : first, the costs occasioned by the ex parte on notice application on 28 July 2005, and second, the costs occasioned in terms of the adjourned hearing the following day, whichin the event did not take place, and was compromised out of court.

7. Counsel on each side of the table have reviewed the circumstances leading to the initial hearing.

8. Mr Mok, who also appeared at that first hearing for the plaintiffs, submitted that this hearing was necessary, notwithstanding thatthe erroneous email in issue was sent on 12 July, and that the ex parte on notice hearing did not take place until 16 days later; he emphasized that his client did not wish to take the chance that thematerial thus mistakenly sent would be incorporated into evidence, and thus the protection afforded by the law in this type of situationwould be lost. On the other hand he further said that, as the result of the initial hearing, it must have been clear to the solicitorsfor the other side that the matter would be compromised, and that there was no necessity to brief counsel for the adjourned hearingwhich, as has been noted, in fact did not take place.

9. Ms Sara Tong, who did not appear at the July hearing, submitted on behalf of the defendants that looked at in the round this wholematter was a storm in a teacup, and that had the plaintiffs bothered to follow up on their initial letter about the misplaced emailprior to coming to court, the issue would have been clarified and costs saved. However, this did not occur, and she maintained thatthere was really no argument but that the defendants should have the costs of the July 28 hearing, which had been attended on behalfof her clients by Mr Wai of her instructing solicitors. As to the costs of briefing counsel for the aborted hearing the followingday, Ms Tong suggested that, absent final confirmation of the settlement position by the time stipulated by the defendants, namelyby 10.30 am the following morning, that these costs also should be to the defendants.


10. I have reflected upon the arguments advanced, albeit that I do not think that this matter was worthy of the attention lavished uponit.

11. I have been tempted simply to say ‘a plague on both your houses’, and to make no order as to costs. Indeed, this was the directionin which Mr Mok submitted that the court should go.

12. On reflection, however, I do not consider that this would be entirely appropriate, and I maintain my initial view that the ex parte on notice application was precipitous and ill-judged, and represented a matter for which the defendants should be compensated incosts.

13. The defendants have asked for a sum of HK$30,000 to cover the costs of the attending solicitor at that late hour on 28 July, andin this context I consider that HK$25,000 is appropriate recompense.

14. I have less sympathy, however, with the defendants’ argument that the costs incurred for the adjourned hearing should be borneby the plaintiffs, and in particular the cost of briefing counsel. Although instructions apparently had not been finally obtainedby the appointed hour of 10.30 am, it must have been as plain as a pikestaff that there was, or would have been, no necessity forargument that afternoon; in the wholly unlikely event of the anticipated compromise falling in, which of course did not occur, therewas no possibility of this court sanctioning full argument against such a background, wherein the defendants reasonably would nothave instructed counsel, and the matter simply would have stood further adjourned upon the basis of suitable undertakings.

15. Accordingly, I do not accept the defendants’ argument that these costs should be recoverable. There is at least a sense, whichI hope is not unfair, that in the circumstances prevailing the defendants felt little constraint in incurring such further costs,the obvious reality of the situation notwithstanding.


16. It follows from the foregoing, therefore, that with regard to the costs occasioned by the plaintiff’s application dated 28 July2005, the order of this court is that the plaintiffs are to pay to the defendants the gross sum of HK$25,000.

17. As to the costs of this argument over costs, in the circumstances I consider it appropriate that there should be no order as to costs. I so order.

18. I do not anticipate that this court will be asked to consider this matter further.

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

Appearances on 28 July 2005

Mr Johnny Mok, instructed by Messrs Deacons, for the plaintiffs

Mr Y H Wai of Messrs Kao, Lee & Yip, for the defendant

Appearances on 6 December 2005

Mr Johnny Mok, instructed by Messrs Deacons, for the plaintiffs

Ms Sara Tong, instructed by Messrs Kao, Lee & Yip, for the defendants