AA v Securities and Futures Commission (No 3)

AA v Securities and Futures Commission (No 3)
[2019] 3 HKLRD 790, [2019] HKCFI 1703
Court of First Instance
Constitutional and Administrative Law List No 41 of 2016
Zervos JA
9 July 2019

Civil procedure — costs — unsuccessful applicant in judicial review proceedings — order nisi to pay two sets of costs: those of respondent and intervener — since intervener raised no new or separate issue, not entitled to costs — variation of order nisi

Administrative law — judicial review — costs — whether general rule that unsuccessful applicant only required to pay one set of costs applied    

Xs’ application for judicial review was dismissed with a costs order nisi (the Order) that they pay the costs of both the respondent, the Securities and Futures Commission (the SFC), and the intervener, the Secretary for Justice (the SJ). Xs applied to vary the Order to provide that they pay one set of costs only. The SJ was granted leave to intervene as a matter of public interest, but confined to a specified constitutional issue, which was also defended by the SFC.

Held, varying the Order to the extent that Xs not be liable for the SJ’s costs and the SJ to bear her own costs, that:

  1. The general rule was that an unsuccessful applicant in judicial review proceedings should only be required to pay one set of costs. It was for the additional respondent, interested party or intervener to justify his participation (Shiu Wing Steel Ltd v Director of Environmental Protection (CACC 350/2003, [2005] HKEC 426), Re Cheng Kar Shun (HCAL 79/2009, [2019] HKEC 1154) applied). (See paras.5, 10.)
  2. When the SJ intervened, she realised that she was merely adding her voice to the SFC’s submissions on the constitutional issue, as was apparent by her initial proposal of a no costs order for or against her. The SFC and the SJ shared the same interest and argument on the constitutional issue. The SJ raised no new or separate issue that entitled her to costs. (See para.15.)
  3. Xs should not be liable for the SJ’s costs. No separate interest was served by her being separately represented. The SFC was entitled to its costs and the SJ should bear her own costs. (See para.16.)

Application

This was an application by to vary a costs order nisi that the applicants pay the costs of both the respondent and intervener in judicial review proceedings (see [2017] 1 HKLRD 1018). The facts are set out in the judgment.

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