Chief Executive of HKSAR v President of Legislative Council

Court of First Instance
Constitutional and Administrative Law List No. 185 of 2016
Thomas Au J in Chambers
16 February 2017

Judicial review – costs – successful application for judicial review against President of Legislative Council by Chief Executive and Secretary for Justice – whether President not to bear costs on ground of “public interest exception”

The Judge allowed the application by the Chief Executive and the Secretary for Justice (the “Applicants”) for judicial review of the decision of the President of the Legislative Council (“LegCo“) (the “President”) to readminister the LegCo oath to two newly elected members, Ys, (the “Decision”), holding that the President had no power to do so as Ys had been disqualified and vacated their offices. The Judge quashed the Decision and made a costs order nisi that, given the limited scope of the President’s opposition in the proceedings, he was to bear one fifth of the Applicants’ costs. The President applied to vary the costs order nisi, seeking no order as to costs between himself and the Applicants on the ground of “public interest exception” (the “Exception”).

Held, dismissing the application, that:

  • Here, unusually, it was the respondent and not the applicant, who relied on the Exception after unsuccessfully defending the Decision. The normal considerations as to whether the Exception was engaged therefore did not apply. The President was a public authority who had made an erroneous and unlawful decision. In any event, his opposition to the judicial review was based on the limited ground that he should not have been joined as a party, which was rejected by the Court. Thus, his participation could not be regarded as seeking “guidance on a point of general public importance of the benefit of the community as a whole”. Accordingly, the President’s opposition to these applications did not fall within the Exception. His application to vary costs should be refused on this basis alone.
  • Further, the fact that both parties were litigating with public funds was irrelevant and did not justify a departure from the general rule on costs. For a public authority which was a party to judicial review proceedings to avoid an order of costs following an adverse judgment, it should usually remain neutral and abide by the result. When such a respondent positively and actively opposed the application (as here), there was no reason why it should not bear the costs like any other litigant, simply because it was a public body. Moreover, given the Decision and that it was a substantive one, it was necessary for the Applicants to bring the judicial review and the President should bear their costs to the extent of his opposition.

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