Potential Financial Burden for Public Interest Litigation

PILnet co-organized a workshop in November on protective costs orders with Boase Cohen & Collins and Designing Hong Kong (DHKL), which was sponsored by Skadden, Arps, Slate, Meagher & Flom. The workshop, attended by 27 professionals including lawyers and NGOs, covered the important issue of potential financial burden for public interest litigation.

To illustrate this issue, DHKL shared their story about seeking a protective costs order to protect it from liability to pay any of the other side’s legal costs or to cap those costs. With Boase Cohen & Collins representing them on a pro bono basis, they sought a protective costs order after their judicial review against the Town Planning Board’s plan to rezone part of the waterfront at Victoria Harbour as a military pier was granted leave. The application was unanimously dismissed by the Court of Final Appeal (CFA), but the court did not order DHKL to pay any costs associated with the litigation. This was thus a mixed result: The court decided that public interest alone is not enough to sustain a protective costs order application, and ruled, in this case, the court must also look into the financial resources of the applicant’s board members, which DHKL refused to disclose. On the other hand, the fact that DHKL was not responsible for any court costs does reflect some acknowledgment in the public value of this type of action. In addition, the court recognized that it is likely to enhance the merits of a protective costs order application if the applicant’s legal representatives are acting pro bono.

As the workshop participants discussed, despite the obstacles in pro bono culture in Hong Kong, CFA’s ruling eased the fear of a costs order against an unsuccessful public interest organization and narrowed the gap in access to the civil justice system. It remains to be seen how the court will rule in the future given a different fact pattern, and whether there is a future for protective cost orders in circumstances where the plaintiff’s financial circumstances can be disclosed.