Lai See | Costs awarded against MSAB for improper behaviour

Over the past year Mr Justice Kevin Zervos has been the source of considerable discomfort for the Liquor Licensing Board and its appellate board the Municipal Services Appeal Board (MSAB).

Since becoming a High Court judge in September last year, he has handed down a number of decisions that have been critical of both boards for being unreasonable and unfair in the way they handle licence applications and appeals.

A recent decision by him relating to the awarding of costs to an applicant who won a judicial review against the MSAB is of particular interest since it applies to all statutory bodies in Hong Kong whose decisions are subject to judicial review.

This decision related to the Nomad Restaurant Management and Philippe Orrico which, to cut a long story short, had won a judicial review against the MSAB and had been awarded costs by Zervos, who was heavily critical of the organisation. However, Zervos' decision on costs was contested by the MSAB, which brought in a legal heavyweight in the form of Anthony Ismail to argue its case.

Although Ismail argued trenchantly for the MSAB and was commended by Zervos, the judge concluded the MSAB was liable for costs. He noted that for many years it had been the practice for the High Court not to make an order for costs against a lower court or tribunal unless "it behaved improperly in a flagrant way".

Zervos stated that the MSAB had made a number of "fundamental and improper errors and mistakes and as a result the applicant has been unfairly and unreasonable treated". He also said the MSAB had "engaged in flagrant improper conduct during the decision-making process and by its decision". The judge further said that if a party that had incurred legal costs to right a wrong perpetrated by a tribunal and had been successful, it should be compensated. So we have a judgment that says if you have been flagrantly wronged by a statutory body and win a judicial review against it, you stand a good chance of getting costs. In the past, people were often deterred from pursuing a judicial review due to the belief that even if they won, they were unlikely to be awarded costs.