TANG KA HUNG ROBERT & TANG MEI SZE v. TANG TIM CHUE alias TANG TIM CHU HCAP 7/2006

S’s words:-
The following case only concerns about the issue of costs for an aided person, whether he should be personally responsible to pay for such costs with legal aid certificate be granted in his favour.

It is the existing practice that unless the Court otherwise directs, a plaintiff cannot recover his costs from either the Director of Legal Aid or a defendant the costs so long as the defendant is legally aided.

The governing provisions are Sections 16(C) and 17(3) of the Legal Aid Ordinance and those two sections have been referred to in the judgment.

If the Defendant in this case insisted to defend the application of the Plaintiffs for striking out despite legal advice of his legal representatives, it may be an appropriate case for the Court to make an order as requested.

Such applications should not be used as oppressions to the aided persons.

However, a defendant should be properly advised of the risk whether he would be personally responsible to pay for the costs, whether his own costs of the costs of the other side.

--- quote from judgment ---

Date of written Reasons for Decision: 27 September 2007

The plaintiffs are the executors named in the last will dated 27 September 1991 made by their late father, Mr Tang Sum On. Mr Tang died on 7 November 2005 in Hong Kong.

The defendant is the son of Mr Tang and the half brother of the plaintiffs. On 18 November 2005 and 26 January 2006, the defendant entered a Caveat and an Appearance to Warning in HCCA002730/2005 to oppose to the will to be admitted to probate.

In March 2006, the plaintiffs commenced this probate action to have the Caveat withdrawn and for probate to be granted to them.

The defendant was privately represented until legal aid was granted to him. The Legal Aid Certificate was issued on 29 August 2006 and counsel was later assigned by the Director of Legal Aid.

By summons filed on 28 February 2007, the plaintiffs apply to strike out the Defence and Counterclaim on the basis that none of the matters raised in it affects the validity of the will or the plaintiffs’ entitlement to probate and also on the basis that they are devoid of merits.

Shortly before the hearing, the defendant’s solicitors indicated to the plaintiffs’ solicitors and the court that the striking out application would not be opposed. The arguments at the hearing were directed at the question of costs. Apart from asking that the costs of the caveat proceedings and this probate action be paid by the defendant, the plaintiffs further applied for an order under section 17(3) of the Legal Aid Ordinance, cap.91 (“LAO”) that the costs incurred by the plaintiffs after the grant of Legal Aid Certificate be paid by the defendant personally. The application was opposed by the defendant. After hearing arguments, I refused to make an order under section 17(3) of LAO and gave oral reasons for the decision.

On the question of entitlement to costs, there is no reason to depart from the normal rule of costs follow event so that the costs of the caveat proceedings and this probate action should be to the plaintiff against the defendant to be taxed if not agreed.

The plaintiff’s application for an order under section 17(3) of the LAO will impact on the defendant's personal liability for costs incurred after the Legal Aid Certificate was issued. This is because in the normal course, the plaintiffs' ability to recover costs or to enforce the costs order that I had made will be subject to section 16C of the LAO.

The effects of section 16(C) insofar as they are relevant to this action are that: (1) The defendant will be personally liable for the plaintiff’s costs in the Caveat proceedings and this probate action incurred prior to the grant of the Legal Aid Certificate: section 16C(2); and (2) The Director of Legal Aid will be responsible for the plaintiff’s costs occasioned by the Counterclaim: section 16C(1)(b)(ia). It follows that under section 16C, the plaintiffs cannot recover from either the Director or the defendant the costs of their claim in this probate action incurred after the issue of the Legal Aid Certificate.

Section 17(3) provides:
“Where it appears to a court or judge that an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them, the court or judge may order the aided person to pay the costs of the Director and of the counsel or solicitor who acted for him or the costs of the other party, or the costs of the Director and such counsel and solicitor and such party.”

Section 17(3) of LAO is an exception to the general position governing an aided person's personal liability to costs, which is provided under section 16C. I do not believe that the spirit of section 17(3) is to expose an aided person to costs liability as a result of inapt advice given by his legal representatives. In this regard, I note in particular that section 17(3) not only deals with liability for costs of the aided person’s opponent, but also extends to liability for costs of the Director as well as costs of the aided person's own counsel and solicitors.

In the circumstances of this case, given what Mr Tang has informed the court, I do not feel that the discretion of the court should be exercised in making an order under section 17(3). Accordingly, I will not order the defendant to pay the plaintiff’s costs of the claim incurred after the issue of the Legal Aid Certificate.