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Lai Hoi Ping And Another v Persons Occupying Portions Of Nathan Road Near To And Between Argyle Street And Dundas Street To Prevent Or Obstruct Normal Vehicular Traffic From Passing And Repassing The Occupied Areas And Others

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date13 August 2015
Year2015
Judgement NumberHCA2104/2014
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA2086C/2014 CHIU LUEN PUBLIC LIGHT BUS CO LTD v. PERSONS UNLAWFULLY OCCUPYING OR REMAINING ON THE PUBLIC HIGHWAY NAMELY, THE WESTBOUND CARRIAGEWAY OF ARGYLE STREET BETWEEN THE JUNCTION OF TUNG CHOI STREET AND PORTLAND STREET AND/OR OTHER PERSONS HINDERING OR PREVENTING THE PASSING OR REPASSING OF ARGYLE STREET AND OTHERS

HCA 2086/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2086 OF 2014

_______________

BETWEEN
CHIU LUEN PUBLIC LIGHT BUS COMPANY LIMITED
(潮聯公共小型巴士有限公司)		 Plaintiff

and
PERSONS UNLAWFULLY OCCUPYING OR REMAINING ON THE PUBLIC HIGHWAY NAMELY, THE WESTBOUND CARRIAGEWAY OF ARGYLE STREET BETWEEN THE JUNCTION OF TUNG CHOI STREET AND PORTLAND STREET AND/OR OTHER PERSONS HINDERING OR PREVENTING THE PASSING OR REPASSING OF ARGYLE STREET 1st Defendant
NG TING PONG (吳定邦) 2nd Defendant
FOK WAI PONG DOMINIC 3rd Defendant
CHEN RAYMOND 4th Defendant

_______________

HCA 2104/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2104 OF 2014

_______________

BETWEEN
LAI HOI PING ( 黎海平) 1st Plaintiff
( suing on his own behalf and on the behalf of all other members of Hong Kong Taxi Association 香港計程車會)
TAM CHUN HUNG ( 譚駿雄) 2nd Plaintiff
( suing on his own behalf and on the behalf of all other members of Taxi Drivers and Operators Association 的士司機從業員總會)

and
PERSONS OCCUPYING PORTIONS OF NATHAN ROAD NEAR TO AND BETWEEN ARGYLE STREET AND DUNDAS STREET TO PREVENT OR OBSTRUCT NORMAL VEHICULAR TRAFFIC FROM PASSING AND REPASSING THE OCCUPIED AREAS 1st Defendant
NG TING PONG (吳定邦) 2nd Defendant
FOK WAI PONG DOMINIC 3rd Defendant
CHEN RAYMOND 4th Defendant

____________________

Before: Hon Au J in Chambers
Dates of Written Submissions: 29 December 2014, 16, 19, 23 January, and 2 February 2015
Date of Decision on Costs: 13 August 2015

____________________

DECISION ON COSTS

____________________

A. INTRODUCTION

1. On 10 November 2014, I handed down judgment (“the Judgment”) continuing the injunction under these two actions that the plaintiffs obtained on an ex parte basis on 20 October 2014. In the Judgment, I also made an order nisi that costs of the applications to continue the injunction be to the plaintiffs, to be taxed if not agreed, with certificate for two counsel (“the costs order nisi”).

2. By summons taken out respectively by the 2nd and 3rd defendants, respectively under these two actions, the 2nd and 3rd defendants seek to vary the costs order nisi to the extent that the costs of the injunction applications be in the cause, or alternatively the plaintiffs’ costs be in the cause.

3. It is directed that the summonses be dealt with on papers, and the parties have respectively filed their written submissions.

4. This is the decision on the costs variation applications. This decision should be read together with the Judgment. For convenience, the abbreviations used in the Judgment will be adopted here unless otherwise stated. I will also not repeat herein any of the history and matters that have already been set out in the Judgment.

B. THESE VARIATION APPLICATIONS

B1. The parties’ contentions

5. As I said, the 2nd and 3rd defendants (for convenience, collectively “the defendants”) ask for the costs of the injunction application to be in the cause or alternatively the plaintiffs’ costs be in the cause.

6. The principal submissions made by the defendants in support of the applications can be summarised as follows:

(1) The costs of the interlocutory injunction should normally be costs in the cause, or the successful party’s costs in the cause. This is so as normally it would not be just and fair to require the unsuccessful party to bear the costs at that stage when the successful party at the end of the day may lose after substantive determination, meaning that he should never have been entitled to the interlocutory relief in the first place. The position is different if it can be shown that the contesting party has acted improperly or in some way to be penalised. See: King Fung Vacuum Ltd v Toto Toys Ltd [2006] 2 HKLRD 785 at paragraph 27 (applied in Velatel Global Communications Inc v Chinacomm Ltd, unreported, HCA 1978/2011, 8 March 2013 at paragraph 4); Picnic At Ascot v Kalus Degris [2001] FSR 2 at paragraphs 5 ‑ 16, per Neuberger (as he then was), referring also to Desquenne et Giral UK Ltd v Richardson [2001] FSR 1.

(2) At the same time, post Civil Justice Reform (“CJR”), under Order 62, rules 3(2) and (2A), it is now specifically provided that costs follow the event is not the starting position, but only one of the options, for costs relating to interlocutory application in the court’s exercise of discretion in costs.

(3) In the present case, the defendants had not acted improperly or unreasonably in seeking to resist the continuation of the injunction by disputing at least, among others, the locus point. This is particularly...

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