Lap v HBY

In the matter of Lap v HBY, the appellant, who is also the first respondent, faced a situation where their appeal was dismissed on the grounds that the Court of Appeal did not have the jurisdiction to hear it. Following this, the first respondent applied for an order that the appellant pay their costs of the appeal to be assessed on the indemnity basis. The appellant, in turn, sought an order that each party pay their own costs. Additionally, the appellant contended that there was doubt about whether the Court of Appeal had the authority to award costs and argued that indemnity costs should not be awarded, primarily due to the public interest in domestic violence and the respondent’s extended engagement in legal proceedings, which had the effect of retraumatising the appellant every time. The court was tasked with determining whether an award for costs should be made and, if so, on what basis.

The legal issues before the court involved the general rule that costs follow the event, the circumstances under which indemnity costs may be awarded, and whether the public interest in domestic violence and the retraumatising effect of protracted legal proceedings could be considered in determining the basis for awarding costs. The court needed to balance these considerations against the appellant’s argument that the Court of Appeal may not have the power to award costs in this context.

In deciding the matter, the court found that it did have the authority to award costs and that it was appropriate to do so on an indemnity basis. The court acknowledged the public interest in domestic violence cases and the retraumatising effect of prolonged legal proceedings but concluded that these factors did not override the general rule that costs follow the event. The court held that the appellant should be ordered to pay the first respondent’s costs of the appeal, including the costs of and incidental to the hearing on 26 March 2021. The court's decision was based on the principle that the first respondent was the prevailing party and thus entitled to indemnity costs under the general rule.