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Designing Hong Kong Ltd v The Town Planning Board, Secretary For Justice

Judgment Cited authorities 12 Cited in 1 Precedent Map Related
Vincent
Judgment Date15 May 2018
Neutral Citation[2018] HKCFA 16
Judgement NumberFACV4/2018
Citation(2018) 21 HKCFAR 237
Year2018
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV4/2018 DESIGNING HONG KONG LTD v. THE TOWN PLANNING BOARD, SECRETARY FOR JUSTICE

FACV No. 4 of 2018

[2018] HKCFA 16

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 184 OF 2015)

_____________________

Between
DESIGNING HONG KONG LIMITED Appellant
and
THE TOWN PLANNING BOARD Respondent
SECRETARY FOR JUSTICE Intervener

_____________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Lord Collins of Mapesbury NPJ
Date of Hearing: 19 April 2018
Date of Judgment: 15 May 2018

_____________________

J U D G M E N T

_____________________

Chief Justice Ma :

A. INTRODUCTION

1. In the normal course of civil litigation in the courts, any question regarding the costs of the main proceedings, as opposed to interlocutory matters, will generally be dealt with at the conclusion of those proceedings. In an application for judicial review, where there is a substantive hearing of that application, the costs of the proceedings will usually be dealt with at the end. Further, the usual rule as to the incidence of costs is that costs follow the event, meaning that in adversarial proceedings, the successful party will generally recover costs from the unsuccessful party. However, this general rule is subject to exceptions where it would be fair and just. The present appeal involves a consideration of an order in relation to costs whereby a party seeks at an early stage of public law proceedings to obtain an order to the effect that in the event that that party is unsuccessful, there will be no requirement to pay costs to the successful party. This is known as a protective costs order (a PCO)[1] and this provides an exception to the usual approach as to costs just stated. The principal point for determination in this appeal involves the examination of one aspect of the discretion to be exercised when considering whether or not to grant a PCO, namely, the aspect of the financial ability or resources of an applicant for a PCO, and in particular the position when that applicant is a company. There are other points which I shall presently identify.

A.1 Facts

2. The appellant, Designing Hong Kong Limited (DHKL) is a company limited by guarantee.[2] There were four founding members of the company, being Ms Christine Loh, Mr Markus Shaw, Mr Peter H Y Wong and Mr Paulus Johannes Zimmerman. Mr Shaw and Mr Wong remain as directors of DHKL, Mr Zimmerman is the current Chief Executive Officer. It is assumed that Ms Loh no longer has an active role within DHKL.

3. DHKL is a non‑profit organisation dedicated to Hong Kong’s environment. One of its objects is to identify ways and means of enhancing the quality and sustainability of the environment for the benefit of residents and visitors. It was formed in 2007 when the Government announced plans for the Tamar Site and Central Waterfront Reclamation. On 14 February 2014, the Town Planning Board (the TPB), the respondent in this appeal, decided not to amend what was known as the Amended Draft Outline Zoning Plan No. S/H24/8 (the ADOZP).[3] The relevant area is a strip of waterfront land comprising a 150 metre stretch located at the north shore of Victoria Harbour near the People’s Liberation Army Garrison Headquarters. Prior to the ADOZP, the intention was that there was to be a continuous waterfront promenade along this area. The ADOZP had the effect of changing this so that the 150 metre stretch would be rezoned to allow for a military dock to be built.[4] This affected the original planning intention of a continuous waterfront promenade through the Central area.

4. The TPB refused, despite representations to the contrary made by DHKL and others, to reconsider and amend the ADOZP. This led to an application by DHKL for leave to apply for judicial review of the said decision not to amend. The grounds for the application for leave are contained in the Form 86, raising issues of abuse of power, failure to carry out statutory duties and legitimate expectation.

5. Also included in the Form 86 was an application for a PCO protecting DHKL from liability to bear any of the TPB’s (the Respondent’s) costs of the proceedings, whether substantive or interlocutory; alternatively, that the TPB’s costs be capped at $10,000.00 and that any costs that should be borne by the TPB (if it was unsuccessful in resisting the proceedings) also be limited to the reasonable costs of a solicitor and junior counsel. It is this application with which we are concerned in this appeal.

A.2 The proceedings below

6. Leave to apply for judicial review was granted on 21 July 2014 after hearing submissions from both parties. The court heard DHKL’s application for a PCO over two days.[5] By a judgment given on 30 April 2015, the application was dismissed with costs. In the judgment, Au J remarked that this was the first time that the court had to deal with a PCO and examine the relevant principles applicable thereto.[6] It was for this reason that the court had invited submissions from amici curiae,[7] as well as hearing submissions on behalf of the Director of Legal Aid.

7. DHKL appealed. The appeal was heard over the course of four days[8] and was dismissed. In the CA Judgment, it was said that as the questions regarding PCOs were raised for the first time for detailed consideration, the court would take the opportunity to lay down general guidance. Owing to the importance of the matter, leave was given to the Secretary for Justice to intervene and make submissions. There were no amici curiae before the Court of Appeal. Notwithstanding that the appeal was dismissed, no costs were ordered.

A.3 The questions for determination

8. The Court of Appeal refused leave to appeal to this Court,[9] and ordered DHKL to pay costs of $100,000.00 to the TPB. On 30 October 2017, the Appeal Committee[10] granted leave to DHKL to appeal to the Court of Final Appeal. The following questions were stated to be of great general and public importance :-

“(1) When considering whether to grant a Protective Costs Order (“PCO”) in a case which raises an issue of general public importance, the resolution of which by the Court is in the public interest, to an applicant that has no special personal or pecuniary interest in the outcome of the proceedings (and, in the case of a corporate applicant, the directors or members of which have no such interest):

(a) Should the Court consider, as relevant factors in the exercise of its discretion, whether:

(i) having regard to the financial resources available to the applicant and the respondent and the amount of costs likely to be involved, it is fair and just to make the order, and

(ii) that the applicant will probably discontinue the proceedings and that it would be acting reasonably in doing so? (cf. Corner House Research at para. 74(iv) and (v))

Or is the applicant required to prove that it is “genuinely not in a position to fund the litigation or to bear the respondent’s costs in the proceedings” per Sections D5, F and para. 81(c) of the CA Judgment.

If neither, what is the correct approach or principle to be applied to the financial resources available to the applicant?

(b) Where the applicant is a body corporate:

(i) Are the private financial resources of the directors and/or members of the applicant to be treated as relevant and, if so, should they be treated as available to the applicant or as if they are the financial resources of the applicant?

(ii) If the private financial resources of the directors and/or members are relevant, is an applicant for a PCO required to obtain and disclose the financial resources of its directors and/or members? If so, how is such evidence (or its absence) to be taken into account in deciding upon a PCO?

(c) Further, what is the relevance of the availability of legal aid to persons who are not applicants to the principles upon which the jurisdiction should be exercised, both generally and in particular to applicants who are themselves ineligible for legal aid?

(d) Further, what is the relevance of the financial resources of the respondent and how should that be considered and taken into account when deciding on an application for a PCO?

(2) Is an application for a PCO to be considered at the leave stage on the principles set out in Corner House Research at paragraphs 78 to 81 inclusive, suitably adapted for the procedure under Order 53 of the Hong Kong Rules of the High Court, and applying the principles set out in Corner House Research as to the incidence of costs on such applications, or are such applications to be heard inter partes in some longer procedure as envisaged by the Court of Appeal at paragraphs 71 to 81 of its judgment and if so, on what basis as to costs?”

The relevance and effect of these questions will be apparent later in this judgment.

9. We are grateful to counsel for the assistance they have given in this appeal and like the Court of Appeal, we would commend in particular those representing DHKL who have acted pro bono in this important matter.[11]

10. Before I deal with these specific questions, it is important first to set out some general principles regarding the granting of PCOs and the context in which the application for such orders is made.

B. PROTECTIVE COSTS ORDERS

B.1 Statutory context

11. Section 52A(1) of the High Court Ordinance[12] provides that subject to rules of court,[13] the costs of civil proceedings are in the discretion of the court. There is a similar discretion in the Court of Final Appeal.[14] RHC Order 62 deals with costs and applies to all proceedings except...

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    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 7 d2 Agosto d2 2018
    ...Legislative Council of the HKSAR (No.2) (2014) 17 HKCFAR 841, at paragraphs 14 and 17; Designing Hong Kong Limited v Town Planning Board [2018] HKCFA 16, at paragraph 13; and Chu Hoi Dick & Anor v Secretary for Home Affairs (No.2) [2007] 4 HKC 428, at paragraphs 28 to 30. 6. In Chu Hoi Dick......

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