Before : Hon Yam J in Court

Date of Hearing : 21 January 2003

Date of Handing Down Judgment : 30 January 2003
 
 

THE APPLICATION

33.1 The plaintiff applied for a variation of the Costs Order nisi dated 21 November 2002 to the effect that the defendant should pay the plaintiff's costs of the action and the counterclaim on a full indemnity basis, to be taxed if not agreed with a certificate for three counsel, or alternatively, 85% of the plaintiff's aforesaid costs on the same full indemnity basis.

33.2 The defendant applied for an order of costs that the plaintiff should pay the defendant all her costs of and incidental to the issue of ink-dating in this trial also on indemnity basis, should the plaintiff be awarded costs on indemnity basis as aforesaid, to be taxed if not agreed and also with a certificate for three counsel.

33.3 There are other incidental and minor applications of both parties which I shall deal with later on. I shall deal with the issue of costs on indemnity basis first.

COSTS ON INDEMNITY BASIS

33.4 The principle of awarding costs on indemnity basis was summarized in Halsbury's Laws of Hong Kong, Vol. 5(2), in paragraph 90.1226 as follows :
 

" To justify an award on an indemnity basis special features have to be shown. The power to order that costs be taxed on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion to what is at stake, may also be ordered to pay costs on an indemnity basis if they lose or have part of their costs disallowed if they are successful. Indemnity costs are not restricted to cases where there has been some deception or underhand conduct on the part of a litigant; they may also be awarded where the litigation has merely been fought bitterly or unreasonably. In deciding whether or not to award indemnity costs, each case must, of course, be considered on its own facts. Costs on an indemnity basis have been awarded in cases where there has been an abuse of the court's process, contempt of court, for failure to make full and frank disclosure in a affidavit in support of an ex parte application, for failure to concur in the appointment of an arbitrator, for pursuing an appeal that was utterly devoid of merit, and the conduct of litigation in an oppressive manner.

Indemnity costs may be awarded against either a plaintiff or a defendant. If a plaintiff has been forced to institute proceedings by a defendant whose conduct has been not only hostile in the normal litigious sense but oppressive and with base ulterior motive, and if the pursuit of the defence constituted conduct which was part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis might well be justified."

33.5 The Court of Appeal in Hong Kong has indicated that the court should be more ready to make indemnity costs order than in the past and "judges should not be slow" to make such orders. In Sung Foo Kee Ltd v. Pak Lik Co. [1996] 3 HKC 570, the Court of Appeal considered three English authorities and their observations were endorsed. At pp.575E-576E, the Court said :
 

" In Disney v. Plummer, 16 November 1987, in the Court of Appeal (England and Wales), unreported, it was submitted that indemnity costs would only be appropriate where there had been deception or underhand conduct. Kerr LJ in his judgment said :
 

I entirely reject that submission. On the contrary, I wholeheartedly agree with the course which the judge took in relation to this ill-advised and, if I may say so, stupidly conducted piece of litigation. It is the sort of robust attitude which should be taken to pieces of litigation of this kind. The defendants still suffer, even when they win. But they should at any rate have been given such assistance as can be provided by the rules. I do not accept, as counsel submitted, that indemnity costs are only appropriate if there is some deception or underhand conduct on the part of the losing party, but not if the litigation is merely fought bitterly or even unreasonably. In the latter type of cases judges can still exercise their discretion under O62 r3(4).

Eastham J in his judgment said :
 

The judge having listened to the various submissions which are summarised, clearly took the view that this was one of the cases in which he could, and should, make a robust order so as to discourage other plaintiffs from pursuing litigation in the way in which this litigation has been pursued on behalf of this particular plaintiff. In my judgment he had ample material on which he could find that it was appropriate to order costs on the indemnity basis and indeed, after the defendants had been exposed to the very serious consequences of this bitterly conducted litigation, they would have felt a sense of considerable injustice if their costs had been whittled away down to the costs on a standard basis.

In Macmillan Inc v Bishopgate Investment Trust Ltd, 10 December 1993, unreported, Millett J, in the Chancery Division, said :
 

The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be 'appropriate'.

In Munkenbeck & Marshall v McAlpine (1995) 44 Con LR 30, Hollis J (with whom Russell LJ agreed) said that he entirely agreed with that passage in the judgment of Millet J and said (at 33):
 

In my view it is a pity that various courts have attempted to define in exactly what circumstances indemnity costs may be ordered. It is a matter in each case of the judge exercising his discretion to order costs on an indemnity basis when appropriate to the facts before him.

We endorse all these observations of Kerr LJ, Eastham J, Millet J and Hollis J."

33.6 The Court of Appeal then said (at p.576F-H) :
 

"...Our rules do now expressly provide for the taxation of costs on an indemnity basis and when they consider it appropriate judges should not be slow to make orders for the receiving party's costs to be taxed on that basis. We venture to suggest that if the attention of the judge here had been drawn to the English authorities to which we have referred he would have had no hesitation in ordering the costs of the plaintiff to be taxed on the indemnity basis rather than the common fund basis (which, in fact, as we have said, corresponds to the 'standard' basis in which costs are otherwise now taxed in England and Wales)."

33.7 Accordingly, the decided authorities support the contention that indemnity costs order would be appropriate in (but not limited to) cases involving fraud, forgery, deception, underhand or oppressive conduct. I consider that the following findings in this case as stated in the previous chapters are relevant, namely :
 

(a) that the four 1990 Documents were forged documents, in that both the Deceased and Tse's signatures were forged signatures;

(b) that the defendant was probably the author of Document A; and

(c) further, the court also found that the words "one life one love" and "Nina" in the form that appeared on Documents B and A, together with the words "one life one love" on Document D were probably written by the defendant herself.

33.8 After hearing submissions from Mr Edward Chan, S.C., counsel for the plaintiff and Mr Clive Grossman, S.C., counsel for the defendant, I consider that the aforesaid points (a) and (b) by themselves are sufficient to warrant an order for costs on indemnity basis.

33.9 The defendant tried to propound the 1990 Documents as the will of the Deceased in her counterclaim in order to resist the plaintiff's application to propound the 1968 Will. In her affirmation of testamentary script, she put forward a case that she was given these documents in a sealed envelope by the Deceased shortly after 12 March 1990 but before his kidnap on 10 April 1990, i.e. she knew nothing about the contents of the documents nor when and how the documents were executed purportedly by the Deceased and his witness or witnesses. She was the only beneficiary named in the 1990 Documents. Thus she sought to propound this will with a view to obtaining a financial advantage and with the intention of depriving the plaintiff of the benefit of the estate under the 1968 Will.

33.10 In this respect I find the Australian case cited by counsel for the plaintiff to be relevant and useful : The Public Trustee v. Annous the Estate of Bader Ali Taleb (31 July 1992, unreported, NSWSC PD 103223 of 1992 per Powell J). In that case, the Australian court in New South Wales awarded costs on indemnity basis against the defendant, Annous, who initially wanted to propound a will which was considered to be forged by two separate experts. The forged document was initially handed over by the defendant, Annous, to a staff of the Public Trustee, who was the executor appointed under a former will, the validity of which had not been challenged. The executor appointed by the later will renounced probate but made an affidavit to the effect that according to what he was told by the defendant, Mr Annous, this later will was found by him in the Deceased's wallet when the Deceased's belongings were handed to him by the hospital authorities.

33.11 The Public Trustee then obtained the advice of a handwriting expert, whose view was that this later will was forged, and decided only to propound the earlier will. Mr Annous entered into an appearance in the proceedings. His counsel asked for leave to inspect the relevant affidavit and also sought leave to have the later will examined by another expert whose view was also that the later will was forged. In the end Mr Annous did not oppose to the grant of the probate of the earlier will.

33.12 Even in the aforesaid circumstances, the Australian court held that Mr Annous should be liable for costs on indemnity basis. He had given no explanation of his conduct in his dealing with the later will. The main reason for the court to grant costs on such basis is that in the absence of any explanation, the court took the view that Mr Annous had attempted to peddle a forged document as the deceased's will with a view to obtaining a financial advantage for himself. Powell J said in his judgment that (at p.4) :
 

"Although I have often enough expressed the view that an Order that costs be taxed on an indemnity basis is justified only where the relevant party's conduct has involved an abuse of process - in the sense that the Court's time and resources, and the litigants' money, has been wasted on fraudulent, or totally frivolous, and thoroughly unjustified, claims or defences - it seems to me that this is a case in which - subject to the qualification to which I will later refer - the Order sought by Mr Hallen should be made. Although I am only too well aware of the seriousness of the conclusion to which I have come, I have concluded that the various matters to which I have earlier referred make it, in the absence of any acceptable explanation from Mr Annous, legitimate for me to infer, as I do, that the document which Mr Annous handed to Mr Rabaa, and which he (Mr Annous) has since sought to peddle as the Deceased's Will, is a cold-blooded forgery produced by him with a view to obtaining a financial advantage for himself."

33.13 I accept the submissions of counsel for the plaintiff that the defendant's conduct in the present case was far worse than that of Annous. Counsel for the defendant submitted that the case herein is distinguishable from the case of Annous since the defendant herself had been advised by three experts in handwriting that the two sets of signatures of the Deceased and Tse were all genuine signatures. However, this submission could only be made if the court found that the defendant had nothing to do with those documents in the sealed envelope and she had no knowledge thereof. However, it is the findings of the court that she probably was the author of Document A and also those words "one life one love" and "Nina" as found in Documents B and A, and "one life one love" on Document D.

33.14 Further, the findings of suspicious circumstances as fully considered in Chapter 5 hereinbefore pointed to the fact that the 1990 Documents were forged documents and they were not executed by the Deceased himself. In short, the following further findings on the defendant's conduct in the present case are also relevant¹ :
 

(c) the findings of suspicious circumstances;

(d) the non-disclosure of documents by the defendant;

(e) the omission of paragraph 5 of the defendant's Lists of Documents up to the 12th List filed on 16 April 2002;

(f) the unduly lengthy cross-examination on Mr Yih Lee Kong, Ms Teresa Wang, and the plaintiff himself to a certain extent; and

(g) the various attempts by the defendant to delay the trial before and during the proceedings as submitted by Counsel for the plaintiff.

33.15 For example the lengthy cross-examination on Mr Yih has been fully considered in Chapter 3 hereinbefore (see paragraph 3.95 et. seq.). Suffice it for me to say that it was my finding that the attack on Mr Yih mounted by the defence was irresponsible, vicious and hostile, and no doubt it was made at the instructions of the defendant herself. After all these allegations were put to Mr Yih, no evidence was led at all to substantiate the case put to him.

33.16 In respect of the cross-examination of Ms Teresa Wang, I have not criticized the cross-examination by the defence as to her contention of the lack of four virtues or "四不". Since Teresa warranted such a contention without any prompting from the counsel for the plaintiff, and this was a very serious allegation made by her against the defendant, the defence was allowed to question her at some length in this respect as evidenced by the transcript.

33.17 What I consider to be oppressive in the cross-examination of Teresa is that she was questioned at length concerning the three documents, namely, E2-248, 249 and 297 containing the two short notes/letters at E2-248 and E2-297. The plaintiff put forward these two letters to Teresa as the genuine sample handwriting of the defendant for comparison. It was my finding, at 17.39 that "the way the defence was conducting her case by putting the plaintiff to strict proof without saying whether it was the defence case that those writings were the defendant's or not, is a complete waste of the court's time". Thus her conduct was not really just sizing the strength of the evidence led by the plaintiff. Her conduct was that her counsel could not even put to Teresa whether the defendant wrote those two letters or not. If she had given instructions to her lawyers that she did not write them, then it would be more than surprising that the case was not so put to Teresa. If it was otherwise, i.e. the defendant actually wrote those two letters, her counsel could not put such a case to Teresa contrary to instructions and lengthy cross-examination on how Teresa received those two letters became oppressive.

33.18 Further, in respect of the three Chinese experts called by the defendant and, in particular, Prof. Jia who gave evidence, I had already made certain adverse comments on them as culminated in paragraphs 16.4 and 16.5 in respect of Tse's signatures and elsewhere. Basing on their instructions and opinions, there were lengthy cross-examination of the plaintiff's experts in hand-writing. For example, they made the unfounded allegation that Mr David Tsui had deliberately made the transparency thicker by photocopying in order to suit his case on superimposition. Two full days were wasted after they had tried various photocopying machines in the court building but eventually failed.

33.19 In the end I find the award of costs on indemnity basis against the defendant herein is fully justified. This is in line with what Stock J (as he then was, sitting in the Court of Appeal) said in Choy Yee Chun v. Bond Star Development Ltd [1997] HKLRD 1327 per Nazareth V-P, Stock and Yeung JJ (as they then were), at 1335J :
 

" There has been a suggestion by counsel for the appellant that somehow the principles apply to a party who has instituted proceedings, but not to a party in response. In my judgment, the principles apply equally to those who not only institute proceedings but who defend them. If a plaintiff has been forced to institute proceedings by a defendant whose conduct has been not only hostile in the normal litigious sense, but oppressive and with base ulterior motive, and if the pursuit of a defence constitutes conduct which is part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis may well be justified. Of course there will in most litigation be evidence which a court rejects, and it is far from rare that a court will find that evidence has been deliberately untruthful. Such a finding will not necessarily in itself warrant an order for costs upon either of the bases alternative to party and party taxation. But there will be cases - and it is true that they will be the exception and not the rule - where the conduct of a party in a case is of a more venal kind, where the conduct of the litigation has in some sense been wicked, and in such a situation the exceptional power can quite properly be applied."

33.20 In conclusion, the aforesaid conduct of the defendant would certainly attract a costs order on indemnity basis. However, the next question is what should the court do with the ink-dating issue in which the plaintiff had failed and 15% of the court's time was taken up by this issue? I shall deal with it in the next section.

INK-DATING

33.21 The plaintiff had utterly failed in establishing that the ink on the documents was still in the drying process and therefore the ink was less than 3 to 3 1/2 years old at the time of examination. Mr Grossman for the defendant submitted that ink-dating is a distinct issue and the plaintiff had been warned before by the defendant's experts, Dr Giles and Dr Radley by their letters both dated 14 February 2000. Mr Chan for the plaintiff submitted that warnings from one's adversary or her expert at that early stage could not be a good guiding principle in deciding this issue.

33.22 I think the guiding principle can be found in Order 62, rule 3(2) itself and in the case of In re Elgindata Ltd [1992] 1 WLR 1207. Order 62, rule 3(2) provides that :
 

"the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case, some other order should be made as to the whole or any part of the costs."

33.23 The case of In re Elgindata Ltd is most enlightening in this respect and I shall set out the fact of the costs as appeared in the headnote hereinbelow first :
 

" The petitioners, who were husband and wife, had a minority shareholding in E. Ltd. They brought a petition under the provisions of section 459 [which is equivalent to the Hong Kong Companies Ordinance, section 168A] of the Companies Act 1985 in which they claimed that the company's affairs were being conducted in a manner which was unfairly prejudicial to their interests and sought an order for the purchase of their shares by the majority shareholder, the second respondent, or by him and his wife. After a 43-day hearing Warner J. found many of the petitioners' complaints of unfairly prejudicial conduct not to have been made out but concluded that in certain respects the conduct of the second respondent had been unfairly prejudicial and he ordered that that respondent be required to purchase the petitioners' shares. At a subsequent hearing as to the payment of the costs of the action Warner J. ordered, inter alia, that the petitioners pay three-quarters of the costs of the second respondent. The judge gave the petitioners leave to appeal against the order.

On appeal by the petitioners :-

Held, allowing the appeal, that the general rule that costs should follow the event unless there were circumstances suggesting that some other order should be made did not cease to apply merely because a successful party had raised issues or made allegations which he had failed to establish at the hearing of the action; that a successful party to an action who had not acted improperly or unreasonably in raising issues ought not to be ordered to pay any part of the unsuccessful party's costs; and that, accordingly, the judge in exercising his discretion had erred in ordering the petitioners to pay an apportioned part of the respondent's costs based on the degree of the petitioners' success in establishing the various categories of their complaints.

Order of Warner J. varied."

33.24 The principles for the decision were stated by Nourse L.J. at pp. 1213H-1214D of the judgment of the Court of Appeal as follows :
 

" In order to show that the judge erred I must state the principles which ought to have been applied. They are mainly recognized or provided for, it matters not which, by section 51 of the Supreme Court Act 1981 and the relevant provisions of R.S.C., Ord. 62, in this case rules 2(4), 3(3) and 10. They do not in their entirely depend on the express recognition or provision of the rules. In part they depend on established practice or implication from the rules. The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs. Of these principles the first, second and fourth are expressly recognized or provided for by rules 2(4), 3(3) and 10 respectively. The third depends on well established practice. Moreover, the fourth implies that a successful party who neither improperly nor unreasonably raises issues or makes allegations on which he fails ought not to be ordered to pay any part of the unsuccessful party's costs. It was because of his disregard of that principle that the judge erred in this case."

33.25 In applying the aforesaid principles, Nourse L.J. awarded the petitioners half of their costs and said (at pp. 1215F-1216B) as follows :
 

" On the footing that the judge erred in principle, we in this court must exercise an original discretion of our own. Here Mr. Lloyd's formal position is that we should award the petitioners the whole of their costs. However, he correctly recognized that we would be bound under the third principle to deprive them of a substantial part of their costs. He said that that part should not be more than half; at the very most it should be three-quarters.

For a long time I was of the view that we could not properly award the petitioners more than one-quarter of their costs. That, it would seem, is the fraction that would have been adopted by the judge if he had applied the correct principles. It seemed to me that we could not properly go behind his assessment of the effect of the petitioners making allegations which have failed. However, on reflection I have come to a clear view that we should award the petitioners a half of their costs. I will explain my reasons as briefly as I can. It is to be noted that in making his rough and ready apportionment on the basis of the parties' respective degrees of success in regard to the four categories of complaints, the judge did not express any estimate of the time and costs of which they had respectively been the cause. Moreover, he did not say that that was the only fair basis for an apportionment. He said that it was as fair a basis as any other. In my judgment the only fair basis for deciding the part of their costs of which the petitioners should be deprived is to ask how much time and expense was taken up in dealing only with the allegations on which they failed. I acknowledge the difficulties with which we are confronted in answering that question. An apportionment made by us is bound to be even more rough and ready than one made by the judge. But we must do the best we can."

33.26 In the case before me, I cannot say, in the first place, that since the plaintiff had been warned by the two letters of Dr Giles and Dr Radley as to the reliability and accuracy of ink-dating test proposed, which, in their view, was doubtful and highly controversial, the plaintiff should bear all the consequences of costs at that stage. It is difficult to assess the strength of all these scientific experts without going through a thorough consideration after cross-examination. On documentary evidence alone, it is difficult to decide on contesting views given by both sides. The conclusion reached by the court was only after thorough cross-examination of Mr Speckin and the hearing of the evidence of the defendant's experts. In any event, those documents relating to fJ Cleveland were not disclosed by the defence at all until the cross-examination of Mr Speckin.

33.27 It will be wrong in principle, in my view, to award the defence costs of ink-dating when I also found that the four purported signatures of Tse on the 1990 Documents were forged by superimposition tracing, according to a model signature written by Tse in the later years after Wang was kidnapped in 1990, after 1994, but before January 1998 when the documents were lodged with the court.² The plaintiff could not prove that the ink was still in the drying process by the methods employed by Mr Speckin.

33.28 In the end I do not find the successful party, i.e. the plaintiff herein, had raised this issue or made allegations improperly or unreasonably to the extent that would compel me to order him to pay that part of the unsuccessful party's costs. On the other hand, I would find that since the plaintiff had failed on proving forgery by ink-dating evidence and this issue is a distinct issue which the plaintiff has utterly failed, I do not consider that it would be right to ask the defendant to pay for this part of the costs. In the end I conclude that the plaintiff is only entitled to 85% of the costs of the action and the counterclaim, although he is entitled to have his costs thereof on indemnity bases as aforesaid.

THE DIRECTION ON THE COST ON LIVENOTE AND THE WRITTEN SUBMISSIONS

33.29 Usually the cost on LiveNote or other shorthand writer's cost would not be allowed unless the court had given a special direction on them or there was an agreement between the parties to provide that these costs should be made costs in the cause. There was no such special agreement between the parties to that effect.

33.30 Mr Grossman submitted that there was an agreement that the provisions of three further terminals for the judge, the witness and the interpreter should be shared between the parties. It was submitted that an application for the defendant to pay the costs of LiveNote would be in effect an attempt to get the court to go behind their contractual arrangements. I do not agree to such an interpretation of the arrangement between the parties. I accept Mr Chan's submission that the agreement only concerned with the mechanism of who and how to pay LiveNote for the time being. It was not an agreement that was intended to transcend any award of costs.

33.31 In the present case, it is quite obvious to all parties involved that LiveNote had been constantly referred to by the parties in the course of their examination, be that examination-in-chief, cross-examination or re-examination. It has also been referred to in the course of argument of the parties. In view of the length of the trial, LiveNote had been made a necessary and proper part of the proceedings and therefore costs of the parties.

33.32 Accordingly, I think it is only fit and proper for me to direct that the costs of LiveNote should form part of the costs of the parties in this litigation, i.e. what the plaintiff had paid LiveNote should be an item of his costs of litigation herein.

33.33 Secondly, the plaintiff applied for a direction to the taxing master in order to assist him in the taxation that the written submissions should be separately taxed as a separate item of costs of the parties. It was pointed out by Mr Chan that usually written submissions of counsel should not be charged for as a separate item. It was said in paragraph 62/App/34 of the Hong Kong Civil Procedure 2002, that :
 

" Skeleton Arguments and Final Submissions - Counsel's brief fee covers the preparation of a skeleton argument for the Court of Appeal, and accordingly such preparation should not be charged for as a separate item and will be disallowed on taxation if it is so charged for (CBS Songs Ltd v. Amstrad Consumer Electronics plc (No. 2) [1988] 1 W.L.R. 364). Counsel is therefore not entitled to be remunerated separately for the preparation of final submissions (Loveday v. Renton (No. 2), supra. Cf.: In Sunny Ijaz Saleem trading as Time Pacific International v. Zurich Insurance Company (Asia) Ltd H.C.A. No. 8689 of 1993, Wuang J. was asked to provide for costs arising out of the written submissions prepared by counsel, ordered by the court. His Lordship allowed Counsel's fees for preparing the written closing submissions and ordered it be taxed as half refreshers on the basis that the submissions were of substantial assistance and had in fact reduced the time it would otherwise have taken for the hearing of final submissions)."

33.34 I have already pointed out that the hearing of oral submissions on 15 October 2002 could be shortened to one full day because counsel had already submitted about 13 boxes of submissions together with 4 boxes of authorities. At the hearing of oral submissions, there were 4 more boxes of submissions presented by the parties and thereafter 4 further bundles of submissions.³ Those written submissions have immensely assisted me in writing my own judgment of the case. It is only fair and proper that these works of written submissions should be taxed separately.

33.35 Further Mr Chan was not asking me to direct that the plaintiff should be entitled to 50 half refreshers or 25 full refreshers in respect of all these works of written submissions. He just submitted that it will be useful for the taxing master to put a maximum amount to be justified by the plaintiff in respect of the works of these written submissions. I consider it is a fair assessment that the plaintiff should be entitled to be taxed separately for these written submissions to a maximum of 25 full refreshers. No doubt the plaintiff is only entitled to 85% of their costs thereof as in line with my order of costs in his favour.

THE PLAINTIFF'S COSTS TO BE PAID OUT FROM THE ESTATE OF THE DECEASED

33.36 It has been said in Halsbury's Laws of England, Vol. 17(2), 4th Ed. Re-issue, in para. 328 thereof that :
 

"As a general rule, an executor who proves a will in solemn form, whether he has done so of his own motion or has been put to proof, is entitled to have his costs as between solicitor and client out of the estate without a court order. A beneficiary who successfully propounds a will in solemn form is entitled to an order for his costs and expenses out of the estate. ...."

33.37 Further, in para. 425.717 of Halsbury's Laws of Hong Kong, Vol. 27, it was said that :
 

"Costs of proceedings are in the discretion of the court, but the discretion is a judicial one exercised on the following principles. The executor's costs of probate proceedings are testamentary expenses and therefore payable out of the estate, and the costs of other parties may be, but are not necessarily also allowed. ...."

33.38 In Tristram and Coote's Probate Practice, 28th Ed., p. 697, in para. 39.05, it was also said that :
 

"An executor who proves a will in solemn form is, as a rule, entitled to have his costs out of the estate, and this applies whether he has done so of his own motion, or has been put on proof of the will by parties interested. ...."

33.39 In this respect, I was told at the outset of the hearing that there were certain observations made by the administrators but their observations were only matters of the implementation of the orders of which they could always apply to the court for directions if difficulty arose. In the end the plaintiff must be entitled to an order in terms of para. 4 of their application, that is, the plaintiff's solicitor and own client costs of and incidental to the action, including costs of and incidental to the counterclaim and any costs previously reserved, and including any costs that may be incurred in relation to taxation as between the plaintiff and the defendant be paid out from the estate of the deceased whereupon the plaintiff shall account to the estate in full in respect of any costs he may recover from the defendant in accordance with any court orders made in the action.

33.40 In conclusion, I shall make the following orders and directions, namely :
 

(a) the plaintiff is entitled to 85% of the costs of the action and the counterclaim, to be taxed if not agreed, on indemnity basis, with a certificate for three counsel;

(b) the taxing master is further directed that the plaintiff's aforesaid costs shall include :
 

(i) the costs of the LiveNote; and

(ii) the costs of the written submissions filed with the Court to a maximum amount of 25 refreshers of counsel for the plaintiff; and

(c) the plaintiff's solicitor and own client costs of and incidental to the action, including costs of and incidental to the counterclaim and any costs previously reserved, and including any costs that may be incurred in relation to taxation as between the plaintiff and the defendant be paid out from the estate of the deceased whereupon the plaintiff shall account to the estate in full in respect of any costs he may recover from the defendant in accordance with any court orders made in the action.

33.41 Finally, since the plaintiff is substantially successful in this application, the plaintiff is entitled to costs of this application, with a certificate for three counsel. However this set of costs should be taxed, if not agreed, only on party-and-party basis as I do not find anything on the part of the defendant in resisting this application, which would warrant an order of costs on indemnity basis.
 
 

¹  All the findings would not be repeated here. References would have to be made to the relevant parts of the findings in the previous chapters in the Judgment.

²  See para.16.7. It was the finding of the court that Tse's signatures on the 1990 Documents were forged and therefore it is not the finding of the court that they were written by Tse himself in the later years. If the meaning of the paragraph is ambiguous or otherwise capable of another meaning, this paragraph should read "In other words, I do not find Tse's signatures are genuine signatures but were forged by superimposition tracing, according to a model signature written by him in the later years after Wang was kidnapped in 1990." A corrigendum will be issued shortly afterwards to avoid any ambiguity together with other typos spotted by the court after the judgment was delivered.

³  See para. 32.1
 
 

(David YAM Yee-Kwan)
Judge of the Court of First Instance,
High Court
 
 

Mr Edward Chan, SC, leading Mr Albert Tsang and Mr Victor Luk, instructed by Messrs K.M. Chan & Co., for the Plaintiff

Mr Clive Grossman, SC, leading Mr Erik Shum, instructed by Messrs Johnson, Stokes & Master, for the Defendant