KMM v Torture Claims Appeal Board
Court of Appeal
Miscellaneous Proceedings No. 1934 of 2015)
Cheung CJHC and Lam V-P
Civil Procedure
2 December 2015

Costs – judicial review – whether errors committed by Torture Claims Appeal Board (“TCAB”) constituted flagrantly improper conduct so as to be liable for costs

X and the Director of Immigration, as the interested party, obtained a consent order disposing of judicial review proceedings by quashing the decision of the Torture Claims Appeal Board (the “TCAB”). On X’s application for costs against the TCAB, the Judge made no order as to costs. X was granted leave to appeal on paper on certain grounds and sought an oral hearing to consider whether leave should also be granted on grounds for which leave to appeal was refused, inter alia, that: (a) making no order as to costs was improper where, as here, the successful applicant for judicial review was legally aided; (b) X’s lawyers were prejudiced by the non-recoverability of fees for pre-legal aid certificate preparatory work undertaken; and (c) the TCAB was guilty of “a flagrant instance of improper behaviour” by ignoring documentary evidence, a witness statement, the Country of Origin Information and disregarding the law on state acquiescence, so that it should be held liable for costs.

Held, dismissing the application, that:

  • Grounds (a)–(b) were not germane to the intended appeal. First, the court should not normally take into account that a party was publicly funded in deciding the proper order for costs.
  • Second, insofar as there was any real prejudice to the remuneration of the successful party’s lawyer flowing from different bases of taxation if there was no order as to costs, this was a relevant consideration and applied whether or not the litigants were legally aided. However, the prejudice alleged here did not arise from the different bases of taxation. As a matter of practicality, the Court had reservations as to whether one should have regard to prejudice arising from matters other than the different bases of taxation. In any event, there was no basis here for suggesting that X’s lawyers had undertaken any pre-legal aid certificate work so as to suffer such prejudice.
  • As for (c), the Judge had not erred in finding that errors committed in the TCAB’s decision-making process did not constitute flagrant improper conduct. The standard for flagrant improper behaviour should not vary for a specialist tribunal consisting of former judicial officers administering torture claims. The criteria were stringent and not all obvious and even blatant errors by a tribunal came within the test. The threshold required for a quasi-judicial appeal authority to be held accountable for costs in respect of its own decision was high and X’s case came nowhere near to surmounting it.
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