G. Costs

G. Costs

The Court has a wide discretion in terms of costs.  Generally speaking, judicial review proceedings follow usual rules of costs in civil proceedings, that is, “costs follow the event”.  This essentially means costs will be awarded to the winning party.  At the leave stage, however, since it is ex parte in nature, absent special or unusual circumstances, the Court would normally make no order as to costs. Note however that the Court has on occasions awarded costs against an unsuccessful leave applicant.

In addition, the Court will give consideration to the public interest aspect of the judicial review, and may depart from the usual rule based on that.  The Court will consider factors such as

(1) whether the principal issues arising from the judicial review related to points of general public importance, the determination of which was for the benefit of the community

(2) whether there is contribution to the proper understanding of the law in Hong Kong

(3) whether the applicant has private gain in the outcome

(4) whether the litigation is “properly brought”

(5) conduct of the applicant.  See the Court of Appeal’s discussion in Kwok Cheuk Kin & Anor v Director of Lands & Ors [2021] 3 HKLRD 411.

In exceptional circumstances, the Court may make a “protective costs order” in public interest litigation such that the losing party does not have to pay the costs of the winning party: See the Court of Final Appeal’s discussion in Designing Hong Kong Ltd v Town Planning Board (2018) 21 HKCFAR 237.