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Hong Kong – Costs In Discrimination Claims.

27 May, 2014


Legal News & Analysis – Asia Pacific – Hong Kong – Dispute Resolution

 

In discrimination cases in the District Court, the general rule is that each party will bear its own costs unless the court determines that the proceedings were brought maliciously or frivolously or there are special circumstances that warrant an award of costs. This Practice Note written by Walter Lee, Partner at Gallant Y.T. Ho & Co., considers the procedures and costs, as well as exceptions to the general rule.

 

Procedure And Costs


The procedures for equal opportunities proceedings are based on the Rules of the District Court. More specific rules are made under sections 73B, 73C, 73D and 73E of the District Court Ordinance (Cap 336) (DCO). In practice, the procedures are very similar to those for ordinary civil claims conducted in the District Court, but the following points should be noted:

 

  • the usual practice of the court in awarding costs to the successful party varies; in discrimination claims, the normal practice is that each party bears its own costs
  • in the exercise of its jurisdiction in equal opportunities proceedings, the District Court is not bound by the rules of evidence; it may inform itself on any matter in such manner as it sees fit, with due regard to the rights of the parties to a fair hearing, the need to determine the substantial merits of the case and the need to achieve a prompt hearing of the matters at issue between the parties

Exceptions To The General Rule


Costs may be awarded against either the plaintiff or the defendant on the grounds of malicious or frivolous litigation. Employers faced with frivolous litigation have been awarded costs.


Examples – Costs Awarded To Defendant (Employer)


In Chen Ray v Tamara Rus [2001] HKCU 1072, the plaintiff had deliberately and maliciously failed to disclose material evidence, which was calculated to put forth a one-sided and distorted picture to the court. Costs were awarded to the defendant.


In Sit Ka Yin Priscilla v Equal Opportunities Commission [2010] HKCU 2279, the court awarded costs to the defendant, finding that the plaintiff’s claim was brought frivolously as the plaintiff brought serious allegations against the defendant but could not provide even a hint of evidence to substantiate her complaints.


In Chan Wai Ho v Civil Service Bureau [2011] HKCU 1942, the District Court awarded costs against a plaintiff for bringing a frivolous claim against the employer (Civil Service Bureau) on the ground that there was no objective evidence to support his claim. The court observed that it would encourage the proliferation of unsubstantiated claims if the plaintiff was not ordered to pay costs.


Examples – Costs Awarded To Plaintiff (Employee)


In A v Chan Wai Tong [2011] HKCU 2522, the District Court awarded costs to the plaintiff because the defendant refused to attempt conciliation arranged by the Equal Opportunities Commission and made a totally fabricated defence.


In L v Burton [2010] 6 HKC 463, the District Court considered that a claim for sexual harassment deserves separate consideration as every adult should know that unwelcome sexual advances are wrongful. These are special circumstances under DCO, s 73B to warrant an award of costs against defendants. Burton is followed by B v King of the King Group [2012] HKCU 1206. 

 

This article was supplied by Lexis Practical Guidance.


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