A

HCA 2086/2014

B
C

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2086 OF 2014

_______________

E
F
G

BETWEEN

CHIU LUEN PUBLIC LIGHT BUS

COMPANY LIMITED
()

Plaintiff

G
H

and

1st Defendant

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

NG TING PONG ()

2nd Defendant

FOK WAI PONG DOMINIC

3rd Defendant

CHEN RAYMOND

4th Defendant

J
K
L

P
Q
R
S
T
U

J
K
L
M

_______________
Q
R
S
T
U

HCA 2104/2014

B
C

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2104 OF 2014

_______________

E
F
G
H
I
J

BETWEEN

M
N
O
P
Q
R
S
T
U

LAI HOI PING ()

(suing on his own behalf and on the behalf
of all other members of Hong Kong
Taxi Association )

1st Plaintiff

TAM CHUN HUNG ()

(suing on his own behalf and on the behalf
of all other members of Taxi Drivers
and Operators Association )

2nd Plaintiff

G
H
I
J
K

K
L

and
L
st

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

1 Defendant

NG TING PONG ()

2nd Defendant

M
N
O
P

FOK WAI PONG DOMINIC

rd

3 Defendant
Q

CHEN RAYMOND
____________________

th

4 Defendant
R
S
T
U

-3-

A
B
C

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

A.

INTRODUCTION

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

K
L
M

O
P
Q

certificate for two counsel (the costs order nisi).

2

I
J
K

By summons taken out respectively by the 2nd and

3rd defendants, respectively under these two actions, the 2 nd and

M
N

of the injunction applications be in the cause, or alternatively the

plaintiffs costs be in the cause.

O
P

It is directed that the summonses be dealt with on papers,

and the parties have respectively filed their written submissions.

Q
R

R
S

continue the injunction be to the plaintiffs, to be taxed if not agreed, with

3rd defendants seek to vary the costs order nisi to the extent that the costs
N

DECISION ON COSTS

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

S
T
U

-4-

A
B

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

As I said, the 2nd and 3rd defendants (for convenience,

collectively the defendants) ask for the costs of the injunction

G
H

L
M

O
P

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 partys costs in the

require the unsuccessful party to bear the costs at that stage

after substantive determination, meaning that he should
never have been entitled to the interlocutory relief in the first

T
U

F
G

J
K
L
M
N
O

place. The position is different if it can be shown that the

contesting party has acted improperly or in some way to be

P
Q

[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

cause. This is so as normally it would not be just and fair to

penalised. See: King Fung Vacuum Ltd v Toto Toys Ltd

Q

when the successful party at the end of the day may lose
N

cause.
6

application to be in the cause or alternatively the plaintiffs costs be in the

I
J

Ascot v Kalus Degris [2001] FSR 2 at paragraphs 5 - 16,

per Neuberger (as he then was), referring also to Desquenne

R
S
T

et Giral UK Ltd v Richardson [2001] FSR 1.

U

-5-

A
B

(2)

At the same time, post Civil Justice Reform (CJR), under

Order 62, rules 3(2) and (2A), it is now specifically provided

application in the courts exercise of discretion in costs.

(3)

or unreasonably in seeking to resist the continuation of the

J
K

plaintiffs to show that they had suffered special damage to

individuals had the necessary title to bring a public nuisance
claim against the defendants. The issues arising (including

M
N

sue, which were hotly contested at the hearing, were only

arguable which merited thorough and serious consideration
at trial.

In the circumstances, there cannot be any

when the issues, which go to the important question of title

contested at trial.

R
S

plaintiffs claims are not bound to win, the defendants also

paragraphs 63 and 65 that the plaintiffs evidence as to the
specific loss and damage said to be suffered by them might

H
I
J
K
L
M
N
O
P
Q
R

well be subject to heavy cross-examination and challenge at

trial in light of the defendants adverse observations raised in
their submissions.

In this regard, to highlight that the

point to the observations by this court in the Judgment at

Q

justifications to require the defendants to bear the costs now

to sue, would still need to be properly and no doubt heavily

legal as well as evidential ones) from this question of title to

held by both this court and later the Court of Appeal to be

point. This is particularly so when it is squarely for the

bring them within the exception so that they as private

In the present case, the defendants had not acted improperly

injunction by disputing at least, among others, the locus

that costs follow the event is not the starting position, but
only one of the options, for costs relating to interlocutory

S
T
U

-6-

In resisting these variation applications, the plaintiffs

counsel in substance submit that it is nowadays open to the court to adopt

C

F
G

Waxman v Li Fei Yu [2013] 6 HKC 424 at paragraphs 3 20, per To J;

(unreported,

HCA

574/2009,

14

May

2010,

per

Au

J)

at

paragraphs 29 - 30; and Midland Business v Lo Man Kui (No 2) [2011] 2

In the present case, the defendants should clearly be aware

of interlocutory injunction, the plaintiffs had a clear case for the

costs order nisi was thus rightly and justly made in all the circumstances

T
U

K
L
M
N
O

B2.

Courts views

It cannot be disputed that costs is in the wide discretion of

the court by taking into account all the circumstance of the case. In
particular, post CJR, the court should also take into account the
underlying objectives set out in Order 1A, rule 1 and the conduct of the

forthwith.

opposed the continuation of the interlocutory injunction as they did. The

title to sue), and under the well established principles governing the grant

and the defendants are in fact lucky not to be required to pay the costs
N

injunction. It was therefore unreasonable for the defendants to have

L

HKLRD 667 at paragraphs 7 8, per Lam J (as the learned VP then was).

of the at the least arguable nature of the plaintiffs case (and thus their
J

Mendlowitz & Associates Inc v Winner International Group Ltd

H
I

an issue merits approach in deciding costs in interlocutory applications in

granting costs to the successful party, including on a forthwith basis. See:

R
S

parties: see Order 62, rule 5(1). In the context of the wide discretion, in
relation to costs in an interlocutory injunction, all the authorities,

T
U

-7-

including Order 62, rules 3(2) and (2A), cited by the parties, show that in
the exercise of that discretion, the court could take into account, among

F
G
H
I

only to bear the costs of the application if the successful party also
conduct of the parties and the reasonableness of resisting the application,
which may render it just to require the unsuccessful part to bear the costs
on a forthwith basis. In so exercising its discretion, the court must as
usual also take into account all the circumstances pertinent to that
Order 1A, rule 1.
Bearing these principles in mind, and looking at the

and just costs order should be that the plaintiffs costs be in the cause

H
I
J

(1)

It cannot be said that the defendants had acted improperly to

contest the continuation of the injunction, as:

(a)

The hearing of continuation application provided the

first occasion where the parties could address the

question of title to use. It is noted that at the ex parte

hearing, the issues of whether the plaintiffs as private

M
N

O
P
Q
R

individuals could commence these claims in public

S

nuisance had not been mentioned before Poon J.

continuation application globally, I agree that in the present case, the fair
given in particular the following considerations:

10

without being dependent upon the final outcome of the action, and even

K
L

succeeds in the substantive action; (b) any facts or factors, including the

particular application, and the underlying objectives of CJR as set out in

J

others, (a) the consideration that the inherent nature of an interlocutory

injunction may make it fair to normally require the unsuccessful party

(b)

The legal arguments as to what constitutes special

damage

to

found

the

title

to

sue

are

not
U

-8-

A
B

straightforward questions, in particular as to what may

meet the requirement for direct loss.1 Thus, it also

matter of legal analysis, the plaintiffs did not come

E

(2)

On the other hand, the defendants were unsuccessful in

resisting the continuation application. In this respect, other

Court of Appeal (in refusing leave to appeal against the

continuation of the interlocutory injunction) observed2 that
(a) all the defendants did not have a legal right to occupy the

subject roads in the way they did, and as such they would

E
F
G
H
I
J

not suffer any legally recognisable loss or damage if the

injunction was later held to be wrongly granted, and (b) the

balance of convenience tilted overwhelmingly in favour of

L

granting the interlocutory injunction. In such a context, it

would also be unfair to require the plaintiff in any event to

K
L
M

bear the costs of their successful application for the

continuation of the injunction whatever the outcome of the

substantive claims.
O

11

For these reasons, in my view, the fair and just costs order in

the circumstances of the present case should be that the plaintiffs costs

N
O
P
Q

be in the cause.
R

than the arguments on title to use, both this court and the

within this requirement.

cannot be said that the defendants acted improperly in

seeking to resist the injunction by arguing that as

1
2

See paragraph 21 of the Judgment

See CA judgment in HCMP 2975/2014, per Cheung CJHC and Lam VP, 15
November 2014, at paragraphs 12, 17 - 18 and 20; the Judgment, paragraph 14.

T
U

-9-

C.

CONCLUSION

12

I will therefore vary the costs order nisi to the extent that

costs of the application to continue to the injunction in each of these

proceedings be the plaintiffs costs in the cause, with certificate for two
E
F
G
H
I

counsel (as the case may be).

13
submissions.

All the parties seek costs of these applications in their

In my view, the defendants are successful in their

applications to vary the costs order nisi. I think it is only just that they

with certificate for two counsel.

J
K

(Thomas Au)
Judge of the Court of First Instance
High Court

N
O
P
Q
R

Mr Tim Wong, instructed by CMK Lawyers, for the plaintiff in

HCA 2086/2014
Mr Jose-Antonio Maurellet instructed by Phyllis K Y Kwong &
Associates, for the 1st and 2nd plaintiffs in HCA 2104/2014
Mr Philip Dykes SC and Ms Christine Yu, assigned by the Director of
Legal Aid, instructed by JCC Cheung & Co, for the 2nd defendant in
HCA 2086/2014 and HCA 2104/2014

S
T
U

should have costs of the variation applications, to be taxed if not agreed,

Ms Gladys Li SC and Ms Margaret Ng and Mr Michael Yin,

assigned by the Director of Legal Aid, instructed by Daly & Associates,
for the 3rd defendant in HCA 2086/2014 and 2104/2014

M
N
O
P
Q
R
S
T
U