Hong Kong Divorce Litigation for Property Settlement and Alimony: Adoption of the Losing Party’s Fee Principle for Solicitor’s Fees
In Hong Kong divorce proceedings for division of property and maintenance, is the principle of the losing party paying the winning party’s legal costs applicable to the final legal costs in civil litigation cases in general?
Apply the loser pays principle, but the court has greater discretion
Based on the legal principles established in L v C (CACV 169/2006), TL v SN (Ancillary Relief) [2010] HKFLR 506 and Z v X (CACV 166, 251, 252/2011), the following principles should still apply in Hong Kong’s divorce property and ancillary relief cases, as they apply to ordinary civil proceedings The principle of ‘the losing party pays the winning party’s legal costs’ should still apply in Hong Kong in divorce property and ancillary relief cases, but the court should have a wider discretion taking into account the particular circumstances of the case (e.g. children’s issues, small amounts of property).
Changes in English law not followed in Hong Kong
Family Procedure Rules 2010 has changed this common law rule so that the general principle is that neither party is liable for the other’s legal costs unless there has been unreasonable litigation behaviour. However, this change is derived from a statutory rule, which does not exist in Hong Kong, and the common law principle of ‘the losing party pays the winning party’s legal costs’ should still apply, see Z v X (CACV 166, 251, 252/2011) para 11.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)