Ccmj v Ssm Formerly Known As Skl

CourtFamily Court (Hong Kong)
Judgment Date27 Jul 2016
SubjectMiscellaneous Proceedings
Judgement NumberFCMP67/2010
FCMP67K/2010 CCMJ v. SSM formerly known as SKL

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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IN THE MATTER of xxxx, female, a child born on xxxx 2008 in Hong Kong
and
IN THE MATTER of Sections 3(1)(c)(ii), 3(1)(d) and 10(1) of the Guardianship of Minors Ordinance, (Cap.13 Laws of Hong Kong)
and
IN THE MATTER of Order 90 rule 1 of the Rules of the District Court (Cap.336 Laws of Hong Kong)
__________

BETWEEN

CCMJ Applicant
and
SSM formerly known as SKL Respondent

________________________

Coram: Deputy District Judge G. Ownin Chambers (Not Open to Public)
Date of Applicant’s written submissions : 26 May 2016
Date of Respondent’s written submissions : 10 June 2016
Date of Handing Down Decision: 27 July 2016

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D E C I S I O N
(Ruling on Costs : By Paper Disposal)

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Foreword

1. Following a 7-day trial spanned over a period of 9 months from June 2014 to March 2015 in respect of the Respondent’s (Mother’s) Summons dated 25 October 2013 for financial provisions on behalf of the child N against the Applicant (Father), this Court handed down its Judgment on 5 June 2015 with costs including all costs reserved to be paid by the Father (“the Financial Provisions Judgment”).

2. Given the fact that the Financial Provisions Judgment is the 12th Decision of this Court throughout these proceedings since 2012, it is not surprising that the Father challenged the Financial Provisions Judgment to its fullest extent by issuing 2 Summonses on 19 June 2015 and 3 July 2015 respectively seeking (i) variation of the costs order thereunder; and (ii) leave to appeal. For the purposes of this Decision, I will refer to the 19 June 2015 Summons as the “Costs Variation Summons”.

3. The 3 July 2015 Summons for leave to appeal was disposed of by this Court on 12 August 2015 refusing leave to appeal with full reasons handed down. The Father then took the matter further to the Court of Appeal which was also dismissed on 7 December 2015 with indemnity costs summarily assessed at HK$100,000 granted by the Appellate Court against the Father (see HCMP No.2059 of 2015).

4. The present Costs Variation Summons was first listed for hearing on 11 September 2015. For various reasons, it was only set down for hearing on 28 April 2016 at 9:30 a.m.

5. On 21 April 2016 (that is, a week before the hearing), a Joint Letter by the parties’ lawyers was submitted to this Court with agreed directions for disposal of the Costs Variation Summons as follows :-

(a) The Father’s Summons dated 19 June 2015 to vary the Costs Order nisi dated 5 June 2015 to be disposed of on paper;

(b) The Father to file his written submissions within 14 days from the date of the Order to be made;

(c) The Mother to file her written submissions within 14 days thereafter;

(d) The hearing fixed for 28 April 2016 at 9:30 a.m. to be vacated;

(e) The costs of this joint application to be in the cause, save the Mother’s own costs be taxed in accordance with the Legal Aid Regulations.

6. On 22 April 2016, this Court granted an Order in terms of the agreed directions as per the Joint Letter. The Father should be filing his written submissions by 6 May 2016. Again, not surprisingly, this had not been done by the Father.

7. On 25 May 2016, this Court granted an ‘Unless Order’ that the Father should file his written submissions by 4 p.m. on 26 May 2016, failing which, the Father be barred from filing any written submissions.

8. On 26 May 2016, the Father filed his written submissions settled by Counsel Miss Athena Wong who appeared on his behalf in the applications for leave to appeal in this Court and the Appellate Court. It is worth to mention that neither Counsel Miss Athena Wong nor the present instructing solicitors Messrs. Chan & Chan appeared for the Father at the trial proper in respect of which the Financial Provisions Judgment was granted with the said costs order of which the Father is now seeking to vary. The Father’s then legal team was Counsel Mr. Jeremy S.K. Chan and Messrs. Haldanes.

9. On 10 June 2016, the Mother filed her written submissions settled by Counsel Mr. Kevin Li who represented the Mother at the trial proper, the leave to appeal in this Court and the Court of Appeal.

The Relevant Procedural Rules on Costs

10. It is trite law that costs are in the discretion of the court. Generally, if the court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the court shall order the costs to follow the event, except where it appears to the court that in the circumstances of the case some other order should be made as to the whole or any part of the costs (Order 62, rule 3(2) of the Rules of the High Court (“RHC”)).

11. Order 62, rule 5(1) of the RHC provides for special matters to be taken into account in exercising discretion, namely, the underlying objectives set out in Order 1A, rule 1 of the RHC; any offer of contribution as is mentioned in Order 16, rule 10 of the RHC; any payment of money into court and the amount of such payment; any written offer made under Order 33, rule 4A(2) of the RHC; any written offer which is expressed to be ‘without prejudice save as to costs; the conduct of the parties, whether a party has succeeded on part of his case, even if he has not been wholly successful; any admissible offer to settle made by a party, which is drawn to the court’s attention.

12. Order 62, rule 5(2) of the RHC provides that for the purpose of the conduct of the parties it includes whether it was reasonable for a party to raise, or pursue or contest a particular allegation or issue; the manner in which a party has pursued or defended his case or a particular allegation or issue; whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and conduct before as well as during the proceedings.

13. There is no issue that the RHC are also applicable to proceedings in the Family Court including the present proceedings.

The Applicable Legal Principles

14. In civil cases, the principles on costs are set out in the cardinal case of In re Elgindata Ltd (No.2) [1992] 1 WLR 1207 where it was held :-

“(a) That the general rule that costs should follow the event unless there were circumstances suggesting that some other order should be made did not cease to apply merely because a successful party had raised issues or made allegations which he had failed to establish at the hearing;

(b) That a successful party to an action who had not acted improperly or unreasonably in raising issues ought not to be ordered to pay any part of the unsuccessful party’s costs.

15. For contested applications in the Family Court, the In re Elgindata principles apply generally. The starting point is still that costs prima facie should follow the event. This has been clearly set out in the English leading case of Gojkovic v. Gojkovic [1991] 2 FLR 233 at 236, where Butler –Sloss LJ (as she then was) had said :

“However, in the Family Division, there still remains the necessity for some starting-point. That starting point, in my judgment is that costs prima facie follow the event (see per Cumming-Bruce LJ in Singer v. Sharegin [1984] FLR 114 at p.119), but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court. One important example...

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