S v. Y AND ANOTHER

S v. Y AND ANOTHER

The court refused indemnity costs for the whole MHO Application because there was no sufficient evidence of ulterior motive or bad faith by Mr S and some failure to disclose the EPOA was attributable to the respondents; however it varied the costs orders nisi to award party-and-party costs up to 31 October 2018 and indemnity costs from 1 November 2018 for both proceedings and awarded enhanced interest on the indemnity costs at 3.5% above the judgment rate from 1 November 2018 until payment; summary assessment on paper was ordered.

Citation
[2019] HKCFI 2304
Parties
Applicant/plaintiff: Mr S; Respondent/1st Defendant: Madam Y; Interested Person/2nd Defendant: Mr O
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 September 2019
Case Number
HCA1469/2018
Procedural Posture
Mental Health Ordinance Application (hcmh 62/2017) and Enduring Power of Attorney Proceedings (hca 1469/2018) / Post Judgment Costs Application/decision
Outcome
Application to vary costs orders nisi granted in part and refused in part; costs orders varied to party-and-party to 31 October 2018 and indemnity from 1 November 2018 with specified enhanced interest; no order as to costs of the variation applications.
Legal Topics
Indemnity Costs, Calderbank/calderbank Offer, Enhanced Interest on Costs, Summary Assessment of Costs, Duty of Disclosure in Ex Parte Applications
Source Language
EN
Mental Health Law Capacity and Enduring Power of Attorney Civil Procedure Costs and Interest Indemnity Costs Calderbank/calderbank Offer Enhanced Interest on Costs Summary Assessment of Costs Duty of Disclosure in Ex Parte Applications

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Parties

Mr S

Applicant/plaintiff

Madam Y

Respondent/1st Defendant

Mr O

Interested Person/2nd Defendant

Procedural Posture

Mental Health Ordinance Application (hcmh 62/2017) and Enduring Power of Attorney Proceedings (hca 1469/2018) / Post Judgment Costs Application/decision

Legal Issues

  1. 1 Whether costs of the MHO Application should be taxed on indemnity basis for the whole proceeding
  2. 2 What enhanced interest rate should apply to indemnity costs from 1 November 2018
  3. 3 Whether Calderbank offer or discounts/pro bono affect costs orders

Ratio Decidendi

The court refused indemnity costs for the whole MHO Application because there was no sufficient evidence of ulterior motive or bad faith by Mr S and some failure to disclose the EPOA was attributable to the respondents; however it varied the costs orders nisi to award party-and-party costs up to 31 October 2018 and indemnity costs from 1 November 2018 for both proceedings and awarded enhanced interest on the indemnity costs at 3.5% above the judgment rate from 1 November 2018 until payment; summary assessment on paper was ordered.

Court Disposition

Application to vary costs orders nisi granted in part and refused in part; costs orders varied to party-and-party to 31 October 2018 and indemnity from 1 November 2018 with specified enhanced interest; no order as to costs of the variation applications.

Orders

  • Mr S to pay Madam Y and Mr O party-and-party costs up to 31 October 2018 and indemnity costs from 1 November 2018 for both the MHO Application and the EPOA proceedings
  • Interest on indemnity costs incurred from time to time from 1 November 2018 to be paid at 3.5% above the judgment rate, accruing from 1 November 2018 until payment