ASIA PACIFIC LASIK CENTRE LTD v. QUALITY HEALTHCARE MEDICAL SERVICES LTD AND ANOTHER

HCA 2347/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2347 OF 2004

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Before: Deputy High Court Judge Saunders in Chambers (Open to public)

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R U L I N G

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1.  On 15 August 2005, I heard an appeal by the plaintiff against a decision of the Master in relation to costs in this matter.  I delivered a reserved decision on 23 September in which, by oversight, I did not deal with the question of costs on the appeal.  There have been discussions between the parties and they have been unable to agree on the issue of costs on the appeal, and the matter has had to be argued before me today.

2.  The original appeal was an appeal against the exercise of discretion by the Master on the question of costs.  It was a hopeless appeal, which ought not to have been brought.  It is always difficult to appeal against the exercise of a discretion on costs, particularly in a case like this where it is plain that the Master had taken into account all of the relevant matters that needed to be taken into account.  Counsel for the plaintiff was obliged to argue the appeal on costs by mounting an attack on the whole background factual circumstances of the matter, essentially challenging factual decisions that the Master had made which he was quite entitled to make in the course of hearing the appeal.

3.  The usual rule undoubtedly is that costs on an appeal follow the event, and that they are paid forthwith.  That is the case even when an appeal is brought upon reasonable grounds, which do not succeed.  Any appellant must appreciate that he is exposed to the risk of costs if he chooses to bring in an appeal.  It is all the more so if the appeal is one, like this appeal, which had no proper basis in the first place.

4.  I have listened carefully to everything that counsel for the plaintiff has had to say.  I do not find any basis at all upon which I should depart from the usual rule.  The costs on the appeal and the costs of today’s hearing must be paid by the plaintiff, to be taxed on a party-and-party basis, and must be paid forthwith.

5.  I did not say so in the course of the judgment I delivered, although I thought about the matter in the course of preparing that judgement.  I say it now; it is long past time this plaintiff stopped worrying about issues of costs and got on with the substance of the litigation.  It is time to face up to the reality of the merits of the matter and not continue skirmishes on the boundaries.

HCA 2347/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2347 of 2004

____________

____________

Before: Deputy High Court Judge Saunders in Chambers (Open to public)

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JUDGMENT

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1.  This is an appeal by the Plaintiff, (Asia Pacific), against the decision of the Master in relation to costs.  The order made by the Master was that the costs on an Order 14 Application, and a subsequent Summons to withdraw that Application, (the Withdrawal Summons), be costs in the cause, and that the costs of the hearing at which the withdrawal summons was dealt with, beat to the Defendant's (collectively, Quality Healthcare).

2.  Both counsel were agreed that the proper basis upon which an appeal against a costs order is made, is that set out in Hong Kong Civil Procedure, 2004, §§58/1/6 and 62/2/11.  Asia Pacific must establish that the order was either unreasonable or that the Master erred in law, or took into account matters which he should not have taken into account, or failed to take into account matters which he should have taken into account.

3.  The primary complaint made against the order that costs on the Order 14 Summons and the Withdrawal Summons the costs in the cause was that the withdrawal of the Order 14 Summons had been brought about by a subsequent change in position and clarification of its position by Quality Healthcare.  Mr Liu for Asia Pacific went to an extraordinary length, set out in a 14 page written submission, in which he sought to establish that the Master had approached the matter from the wrong basis.  While it may be the case that another judge may have dealt with the matter on a different basis, nothing that Mr Liu has said persuades me that the Master was either wrong in law or unreasonable in the approach he took.

4.  It is a common practice that upon the issue of a writ an Order 14 Summons is issued.  It is not in every case, no matter how clear, that Order 14 will be appropriate.  Careful consideration ought to be given by solicitors before the issue of an Order 14 summons, for, as in this case, circumstances may result in that summons being withdrawn.  If as a result of premature action an Order 14 summons must be withdrawn, then it is likely that costs against the applicant will follow.  It is clear from the record that the Master was thoroughly familiar with the matter having dealt with it three separate prior occasions.  He was plainly in the best position to make the appropriate assessment as to costs.  In my view the Master cannot be faulted in taking the middle ground and ordering that costs be in the cause.

5.  The question of the costs argument was straightforward and should have been brief.  The record shows that the hearing before the Master lasted for 1 hour and 42 minutes, of which 20 minutes was devoted to the delivery of the reasons for the orders made.  It was a hearing which ought to have taken no longer than 10 minutes, and should not have required the Master to spend so much time in giving reasons for his decision.  Again, in those circumstances, the Master cannot be faulted in ordering costs for the hearing of the argument for costs on the Withdrawal Summons to be to the defendants.

6.  There is no basis upon which it can be said either that the decision of the Master was unreasonable or that there was any error of law.  The appeal is dismissed.