Tang Pun Sang (鄧盤生) v Tang Kwok Shu (鄧國樹) [2024] 1 HKLRD 1226, [2024] HKCFI 359

Philip Dykes SC and Stephen LW Tang represented the applicant in Tang Pun Sang (鄧盤生) v Tang Kwok Shu (鄧國樹) [2024] 1 HKLRD 1226, [2024] HKCFI 359.

X, an indigenous inhabitant of the New Territories, applied for judicial review to inter alia require the Director of Lands, the fifth putative respondent, to accept and action his application for a land grant without the need to produce a vouching declaration regarding his status under the Small House Policy, which he failed to obtain from the indigenous inhabitant village representatives, the first to fourth putative respondents (PR1-4). Despite previously insisting that the accompanying declaration was required before X’s claim to a small house grant could be processed, the Director had agreed to process his application without requiring a vouching declaration. X discontinued the judicial review save for questions as to costs.

Held, ordering X’s costs to be payable by the putative respondents, apportioned as to 60% payable by the Director and 40% payable by PR1-4, at 10% each, that:

• (1) An applicant who had effectively secured the substantial relief sought in a judicial review without a full hearing could generally expect to recover the costs, unless there was a good reason to the contrary. In cases of partial success, the allocation of the liability for costs would often be best served by a no order as to costs. However, much would depend upon the particular facts. The court would consider arguments as to which party was more successful in the context of the relief claimed or, even if the applicant was accepted as the successful party, arguments as to the importance of the issue, or the costs relating to the issue, on which he failed ( R (M) v Croydon London Borough Council [2012] 1 WLR 2607 , SC v Torture Claims Appeal Board [2016] 2 HKLRD 864 applied). (See paras.11-12.)
• (2) By the Director’s agreement to process X’s land grant application, X had obtained some substantial success in the proceedings regardless that he had not obtained all relief to which he laid claim in the Form 86. Further, the proceedings were properly pursued against PR1-4 as well as the Director. In exercising the discretion on costs in this context, a no costs order would not be appropriate. (See paras.32-35.)
• (3) There were not any, or sufficient, special and unusual features as justified the award of costs on the indemnity basis. (See para.36.)

[The above is excerpted from the headnote to the report in HKLRD.]