XN000022-1991-06-05 — Page 17

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WEDNESDAY, JUNE 5, 1991

MR MATHEWS ALSO COMMENTED ON A SUGGESTION THAT HE SHOULD REFRAIN FROM SEEKING AN ORDER OF COSTS IN CASES WHERE THE PLAINTIFF WAS UNSUCCESSFUL IN AN ACTION AGAINST THE GOVERNMENT INVOLVING THE BILL OF RIGHTS.

HE SAID HE HAD GREAT DIFFICULTY IN SEEING HOW HE COULD POSSIBLY ACCEDE TO THE PROPOSITION.

HE POINTED OUT THAT THE LONG ESTABLISHED RULES OF PROCEDURE WERE THAT THE COURTS HAD FULL DISCRETION IN MAKING ORDERS AS ΤΟ THE PAYMENT OF COSTS.

"THE NORMAL RULE IS THAT COSTS FOLLOW THE EVENT. IF YOU WIN, YOU GET YOUR COSTS. IF YOU LOSE, YOU HAVE TO PAY YOUR OPPONENT'S.

"IF I WAS TO BE ASKED TO ACCEDE TO THE PROPOSAL PUT TO ME THIS AFTERNOON, I'LL BE DEPARTING FROM WELL ESTABLISHED PROCEDURES IN A SITUATION WHERE IT IS NOT CLEAR TO ME THAT A CASE HAS BEEN MADE OUT FOR SO DOING.'

"

HE SAID THE PROPOSAL WOULD MEAN THAT IF A CASE WAS BARELY ARGUABLE BUT NOT FRIVOLOUS, THERE WOULD BE NO COSTS. THE COSTS WOULD HAVE TO BE BORNE BY TAXPAYERS.

HE SAID IT MIGHT ENCOURAGE NUISANCE LITIGATION, ENCOURAGE PUBLICITY SEEKING LITIGATION THAT HAD NO UNDERLINING REAL PURPOSE.

HE ADDED THAT MANY OF THE RIGHTS IN THE BILL OF RIGHTS WERE ALREADY PROTECTED BY EXISTING LEGISLATION AND THE COMMON LAW, AND ACTIONABLE AS AGAINST THE GOVERNMENT AND PUBLIC AUTHORITIES.

"IT WOULD BE A VERY ODD SITUATION INDEED IF THE SAME BREACH WAS TREATED DIFFERENTLY SIMPLY BECAUSE AN ACTION WAS BROUGHT UNDER THE BILL OF RIGHTS,

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HE POINTED OUT THAT LEGAL AID WAS AVAILABLE TO PERSONS WITH LIMITED MEANS. IF A LEGALLY AIDED PERSON WAS UNSUCCESSFUL, LIABILITY FOR COSTS WOULD BE LIMITED TO THE AMOUNT OF CONTRIBUTION, IF ANY, THAT THAT PERSON WAS LIABLE TO PAY.

HE ALSO SAID THAT THE PROPOSAL ON POSTS WOULD APPLY EVEN TO WEALTHY LITIGANTS WHO, IF UNSUCCESSFUL, WOULD BE SUBSIDISED BY TAXPAYERS.

"UPON ENACTMENT, IT WILL BE FOR THE COURTS ΤΟ APPLY THIS ORDINANCE.

INTERPRET AND

"THOSE IN PRACTICE BEFORE THE COURTS WILL NO DOUBT FIND A WEALTH OF LEARNING AND EXISTING CASE LAW, NOT ONLY IN CONNECTION WITH THE INTERNATIONAL COVENANT ITSELF, BUT ALSO FROM DECISIONS ON OTHER MULTI-LATERAL CONVENTIONS AND OTHER CHARTERS OF RIGHTS.

"FOR

AND,

THE RIGHTS ENUMERATED IN THE INTERNATIONAL COVENANT THEREFORE, IN OUR BILL OF RIGHTS, ARE COMMON TO MOST SUCH INSTRUMENTS.

OF

"THAT SHOULD COME AS NO SURPRISE, SINCE THEY ARE BUT A LIST FUNDAMENTAL FREEDOMS. THEY ECHO THOSE PRINCIPLES DEVELOPED IN THE COMMON LAW WORLD, TO WHICH HONG KONG BELONGS, MR MATHEWS SAID.

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