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Sir Elly Kadoorie & Sons Ltd (For And On Behalf Of Itself, Its Current And Former Officers, Employees And Agents, Including Its Legal Representatives, Messrs Simmons & Simmons) v Samantha Jane Bradley

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date25 August 2023
Neutral Citation[2023] HKCFI 2197
Subject MatterCivil Action
Judgement NumberHCA518/2022
Year2023
HCA518A/2022 SIR ELLY KADOORIE & SONS LTD (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS) v. SAMANTHA JANE BRADLEY

HCA 518/2022

[2023] HKCFI 2197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 518 OF 2022

_________________

BETWEEN
SIR ELLY KADOORIE & SONS LIMITED (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS Plaintiff
and
SAMANTHA JANE BRADLEY Defendant

_________________

Before: Deputy High Court Judge H. Au-Yeung (Paper Disposal)
Dates of Submissions: 14 June, 7 July and 19 July 2023
Date of Decision: 25 August 2023

_________________

DECISION

_________________

INTRODUCTION

1. By Decision dated 31 May 2023 (“the Decision”), this Court ordered that SEKSL[1]’s claims against the defendant be dismissed.

2. It was also ordered on a nisi basis that SEKSL shall bear the defendant’s costs of the action (including the costs of the First Summons and the Second Summons), such costs shall be taxed if not agreed, with certificate for two counsel (“the Order Nisi”).

3. Pursuant to paragraph 114 of the Decision, the defendant, by letter dated 14 June 2023 (“the Application Letter”), applied to vary the Order Nisi, such that:

(1) The defendant’s costs incurred as a result of the application of SEKSL made by way of an inter parte summons filed on 6 May 2022 (“the Injunction Summons”) be expressly included in the cost order[2];

(2) All of the defendant’s costs be assessed on indemnity basis; and

(3) The defendant’s costs be summarily assessed and paid within 14 days.

(“the Variation Application”)

4. As a matter of principle, SEKSL has no objection against the orders sought under sub-paragraphs (1) and (3) above. The only substantive matter in dispute is whether the defendant’s costs should be assessed on indemnity basis.

LEGAL PRINCIPLES ON INDEMNITY COSTS

5. In Commissioner of Inland Revenue v Poon Cho Ming, John (2020) 23 HKCFAR 74 [2020] HKCFA 2, Bokhary NPJ summarised the principles which are applicable to an application for indemnity costs at [4] as follows:

“(a) In certain circumstances, costs may be awarded on a more generous than usual basis of taxation so as to achieve a fairer result.

(b) It is for the receiving party to show that the case has some special or unusual feature.

(c) Such features are not confined to an ulterior motive, an improper purpose, deception or underhand conduct on the part of the paying party.

(d) Neither the attributes of the parties nor the character of the proceedings are irrelevant to the question of whether a more generous than usual basis of taxation should be ordered.

(e) The discretion to order a more generous than usual basis of taxation is not to be fettered or circumscribed beyond the requirement that such taxation be ordered only when it is appropriate to do so.

(f) As to that, the grounds on which a more generous than usual basis of taxation is to be ordered must be connected with the case. That extends to - but no further than to - any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation.”

6. There are some other legal principles which are applicable to the specific grounds relied on by the defendant. They will be referred to when those grounds are dealt with below.

THE DEFENDANT’S GROUNDS

7. On the basis of the aforesaid legal principles, the defendant has put forward four factors which are said to support the making of an indemnity costs order, namely:

(1) SEKSL’s litigation conduct;

(2) SEKSL’s refusal to accept the defendant’s without prejudice offer;

(3) SEKSL’s reliance on “disingenuous and hopeless” points;

(4) The present action was vexatious, frivolous, oppressive and an abuse of the Court’s process.

DELIBERATION

SEKSL’s litigation conduct

8. There are two parts under this factor.

9. The first part relates to the Injunction Summons. It was said that (a) SEKSL’s insistence (but failed attempt) to impose oppressive restraints on the defendant’s ability to represent herself as litigant in person; and (b) SEKSL’s refusal to accept the defendant’s proposed undertaking, justify the making of an indemnity costs order in relation to the reserved costs of the Injunction Summons.

10. The background of this part of the factor relied on by the defendant may be summarised as follows[3]:

(1) On 6 May 2022, the defendant wrote an email to Mr Eric Chan of S&S and indicated that there was “nothing further to communicate about at present”;

(2) Notwithstanding the aforesaid email, SEKSL took out the Injunction Summons on the same day, with the call-over hearing fixed for 13 May 2022;

(3) By its skeleton submissions dated 10 May 2022, SEKSL indicated that it would apply for an interim-interim injunction against the defendant;

(4) By letter dated 11 May 2022, the defendant’s solicitors informed SEKSL that the defendant was prepared to offer an undertaking pending the substantive hearing of the Injunction Summons;

(5) On the following day, the defendant proposed the following terms of undertaking to be given by her to the Court and SEKSL:

(a) She will “not send any direct communication to the Plaintiff (including its current or former directors, officers, or employees of who she is aware) on the subjects set out in Clauses 1 to 3 of the draft Order attached to the summons dated 6 May 2022 (the ‘Subjects’)”;

(b) She will “not send any communications to S&S on the Subjects, except for the purpose of exercising her right to defend herself in this action and/or bringing any claims against the Plaintiff (and/or its current or former directors, officers, or employees) whether as a counterclaim in this action or as a separate action”;

(c) She will “only communicate with S&S through her solicitors, except in the situation where she is a litigant in person”.

(6) By letter dated 13 May 2022, SEKSL counter-proposed the terms of the undertakings. As far as the proposed terms under sub-paragraph (b) are concerned, SEKSL suggested to add a proviso as follows:

“provided that such communications are made through her solicitors (without prejudice to the Defendant’s right to apply to Court to vary this undertaking if she subsequently chooses to act in person and provided that at least 48 hours’ written notice is given to the Plaintiff before the Defendant makes any such application)”

(“SEKSL’s Litigant In Person Proviso”)

(7) As the defendant could not accept SEKSL’s counter-proposal, the call-over hearing proceeded on 13 May 2022 as scheduled[4];

(8) At the end of the day, SEKSL did not insist on the retention of the SEKSL’s Litigant In Person Proviso, which was not included in the order made by Cheng J on 16 May 2022 (“the May 2022 Undertaking to the Court”).

11. On the basis of the above, the defendant submitted that:

“[…] SEKSL rejected Ms Bradley’s Proposed Undertaking offered at the outset of the injunction application and insisted on attempting to impose oppressive and unjustified restraints on Ms Bradley’s ability to represent herself as a litigant in person, as well as her choice of solicitors firms that could represent her. This resulted in a hearing before this Court that could have been entirely avoided. As such, it is submitted that Ms Bradley’s costs of the Injunction Summons should be awarded on an indemnity basis.”

12. SEKSL denied that it had any intention to prevent the defendant from acting as a litigant in person. It was argued that the proviso proposed by SEKSL merely sought to prevent any misuse by the defendant of the litigant in person status as a loophole to undermine the effectiveness of the injunction.

13. In my view, even if SEKSL did not have any intention to prevent the defendant from acting in person, the objective effect of SEKSL’s Litigant In Person Proviso, if included, as a matter of fact would impose a constraint on the defendant such that she could not elect to act as a litigant in person freely at any time she wished because she had to apply to the Court for variation of the undertaking before doing so. This may be seen from S&S’ letter dated 27 July 2022 in which it was stated, inter alia, that:

“The LIP Restraint, as defined in your letter, was neither the focus of the parties’ correspondence before the May hearings nor of the hearings themselves. As our client’s Counsel submitted to the Court on 13 May 2022, our client was not seeking to restrain your client’s ability to act in person. The form of undertaking that your client had proposed prior to the 13 May 2022 hearing in effect gave her the option to release herself from the undertaking at any time simply by terminating her retainer with your firm and acting as a litigant in person. Our client’s intention, as conveyed to the Court, was to put in safeguards in the undertaking to prevent abuse by your client. Your client’s intention, as was clear to us and to the Court, was to create ‘loopholes’ (or lacunae) in the undertaking, such that she might continue her harassment by acting in person […]” (emphasis added)

14. Be that as it may, I do not think SEKSL’s initial proposal (or even “insistence” as described by the defendant) to include the SEKSL’s Litigant In Person Proviso should lead to an indemnity costs order. Putting the defendant’s case to the highest, I think what she might validly argue is that...

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