Costs – public interest litigation – unsuccessful appeal against dismissal of application for protective costs order – whether no order as to costs of application below appropriate
In judicial review proceedings against the Town Planning Board (the “Board”), the Judge refused an application for a protective costs order (“PCO”) by X, finding it had failed to show it was genuinely incapable of funding the litigation or to bear the Board’s costs in the main proceedings. The Court of Appeal dismissed X’s appeal with no order as to costs (see  2 HKLRD 60). By a notice of motion, X sought leave to appeal to the Court of Final Appeal.
Held, dismissing the notice of motion, that:
- Xs’ application for leave to appeal to the Court of Final Appeal was unmeritorious. The issues now raised by X were either too general or not reasonably arguable.
- It was fair and reasonable that there should also be no order as to costs of the PCO application in the Court below. Given this was the first case in which PCO was extensively argued in a court in Hong Kong, the application satisfied the public interest litigation (“PIL”) criteria. X’s legal team were acting pro bono and there was scope to relax the requirement for lack of personal benefit. However, in future, an unsuccessful PCO applicant would not be able to rely on the PIL criteria to be absolved from costs liability.
- There was no justification for extending the PIL protection further to this unmeritorious application for leave and X was ordered to pay the costs of the Board in the notice of motion.