「不損權益但關乎訟費」要約的清晰度？申請駁回

### 案件基本資料 - 案件名稱：BIG ISLAND CONSTRUCTION (HK) LIMITED v WU YI DEVELOPMENT COMPANY LIMITED 及其他案件 - 法院：高等法院原訟法庭 (Court of First Instance, CFI) - 法官：朱芬齡法官 (Hon Chu J) - 判決日期：2007年12月20日 ### 案情摘要 本案涉及三宗合併審理的案件，原告方為BIG ISLAND CONSTRUCTION (HK) LIMITED及NATIONBUILD PACIFIC LIMITED，被告方為WU YI DEVELOPMENT COMPANY LIMITED、WU YI CONSTRUCTION COMPANY LIMITED及FU YIN FINANCIAL INVESTMENT CO., LIMITED。法庭早前已裁定被告方申請的訟費保證金 (security for costs) 申請，並發出臨時訟費命令 (order nisi)。原告方申請更改該臨時訟費命令，理由是他們曾提出「不損權益但關乎訟費」的要約 (without prejudice offer save as to costs)，金額高於法庭最終裁定的保證金數額。被告方則提出反申請，要求原告方立即支付訟費，理由是原告方反對訟費保證金申請的理據薄弱。 ### 核心法律爭議 本案的核心法律爭議在於原告方提出的「不損權益但關乎訟費」要約是否清晰且合理，足以影響法庭對訟費的酌情權。原告方認為其要約已包含支付被告方訟費保證金申請的訟費。被告方則爭辯原告方的要約並未明確表示會支付其訟費，因此拒絕要約是合理的。另一個爭議點是被告方是否有權要求原告方立即支付訟費，因原告方對訟費保證金申請的反對被指為毫無根據。 ### 判決理由 法庭分析了原告方「不損權益但關乎訟費」要約的措辭，特別是「包含這些訟費保證金申請的訟費」 (inclusive of the costs of these security for costs applications) 一句。法官認為，這句話的意思是將被告方的訟費納入支付入法庭的保證金總額中，而非原告方承諾直接支付被告方的訟費。法庭強調，提出要約的一方有責任確保要約清晰明確。由於原告方的要約不夠清晰，被告方有理由拒絕。因此，法庭認為被告方拒絕原告方要約並無不合理之處。至於被告方要求立即支付訟費的反申請，法庭認為雖然原告方反對訟費保證金申請的理據不強，但其行為尚未達到需要立即支付訟費的惡劣程度，且被告方的訟費權利已獲保證金保障。 ### 引用案例與條文 本案引用了以下案例，以闡明「不損權益但關乎訟費」要約的原則： - McDonnell v. McDonnell [1977] 1 WLR 34：確立了Calderbank要約應影響而非支配法庭對訟費的酌情權。 - Butcher v Wolfe & Anor [1999] 1 FLR 334：指出評估Calderbank要約時，應考慮對方是否應合理地接受該要約。 - C & H Engineering v. F Klucznik & Son Limited [1992] FSR 667：強調提出要約的一方有責任確保要約清晰。 - Cheung Yu Tin v. Ho Hon Ka [2006] 2 HKLRD 674：重申了要約必須清晰的原則。 ### 裁決與命令 法庭駁回了原告方更改臨時訟費命令的申請，也駁回了被告方要求立即支付訟費的反申請。鑑於雙方的申請均被駁回，且兩項申請是合併審理的，法庭命令雙方各自承擔其訟費，即不就這些傳票的訟費作出命令。 ### 判決啟示 本案重申了「不損權益但關乎訟費」要約 (Calderbank offer) 必須清晰明確的重要性。要約方有責任確保其要約的條款，特別是關於訟費的條款，不會引起歧義。若要約措辭模糊，對方有權拒絕，且法庭不會因此對拒絕方施加不利的訟費命令。此外，即使一方對申請的反對理據薄弱，法庭也不會輕易發出立即支付訟費的命令，除非其行為極為惡劣。 --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: BIG ISLAND CONSTRUCTION (HK) LIMITED v WU YI DEVELOPMENT COMPANY LIMITED and other cases - Court: Court of First Instance (CFI) - Judge: Hon Chu J - Date of Judgment: 20 December 2007 ### Factual Background This case involved three consolidated actions. The plaintiffs, BIG ISLAND CONSTRUCTION (HK) LIMITED and NATIONBUILD PACIFIC LIMITED, and the defendants, WU YI DEVELOPMENT COMPANY LIMITED, WU YI CONSTRUCTION COMPANY LIMITED, and FU YIN FINANCIAL INVESTMENT CO., LIMITED, were parties to these actions. The court had previously granted the defendants' applications for security for costs and issued an order nisi for costs. The plaintiffs applied to vary this order nisi, arguing that they had made a "without prejudice offer save as to costs" for an amount higher than what the court ultimately ordered for security. The defendants cross-applied to vary the order nisi, seeking immediate payment of costs, contending that the plaintiffs' opposition to the security for costs applications was unmeritorious. ### Key Legal Issues The core legal issue was whether the plaintiffs' "without prejudice offer save as to costs" was clear and reasonable enough to influence the court's discretion on costs. The plaintiffs argued their offers included payment of the defendants' costs for the security for costs applications. The defendants contended that the offers did not explicitly state they would pay the defendants' costs, making their refusal reasonable. Another issue was whether the defendants were entitled to an immediate costs order, given the alleged unmeritorious nature of the plaintiffs' opposition to the security for costs applications. ### Ratio Decidendi The court analyzed the wording of the plaintiffs' "without prejudice offer save as to costs," specifically the phrase "inclusive of the costs of these security for costs applications." The judge found that this phrase meant the defendants' costs would be covered within the total security amount paid into court, not that the plaintiffs would directly pay the defendants' costs. The court emphasized that the offering party bears the duty to make a clear offer. As the plaintiffs' offers were ambiguous, the defendants were justified in refusing them. Therefore, the court found the defendants' refusal of the plaintiffs' offers was not unreasonable. Regarding the defendants' cross-application for immediate costs, the court held that while the plaintiffs' opposition to security for costs was weak, their conduct was not so egregious as to warrant an immediate costs order, and the defendants' entitlement to costs was already secured by the security provided. ### Key Precedents & Statutes This case cited the following precedents to clarify principles regarding "without prejudice offers save as to costs": - McDonnell v. McDonnell [1977] 1 WLR 34: Established that a Calderbank offer should influence, but not govern, the court's discretion as to costs. - Butcher v Wolfe & Anor [1999] 1 FLR 334: Indicated that in considering a Calderbank offer, the proper approach is to ask whether the party to whom the offer was made ought reasonably to have accepted it. - C & H Engineering v. F Klucznik & Son Limited [1992] FSR 667: Emphasized that the duty is on the offering party to make a clear offer. - Cheung Yu Tin v. Ho Hon Ka [2006] 2 HKLRD 674: Reaffirmed the principle that an offer must be clear. ### Decision & Orders The court dismissed both the plaintiffs' applications to vary the costs order nisi and the defendants' cross-applications for immediate payment of costs. Given that both parties' applications were dismissed and heard together, the court ordered no costs for these summonses, meaning each party would bear their own costs. ### Key Takeaways This judgment reiterates the critical importance of clarity in "without prejudice offers save as to costs" (Calderbank offers). The offering party is responsible for ensuring that the terms of their offer, especially concerning costs, are unambiguous. If an offer is vaguely worded, the recipient is entitled to refuse it, and the court will not impose adverse costs orders on the refusing party as a result. Furthermore, even if a party's opposition to an application is weak, the court will not readily grant an immediate costs order unless the conduct is exceptionally egregious. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.