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Colin Cohen outlines road to landmark CFA ruling

Hong Kong, 2 November 2018: Boase Cohen & Collins’ pro bono work in a public interest case which brought a landmark Court of Final Appeal judgment has been highlighted in a presentation by Senior Partner Colin Cohen.

He described how the firm’s lawyers spent four years acting for Designing Hong Kong Limited (DHKL), a non-profit organisation, in a civil action against the Town Planning Board that focused on public access to the waterfront in Hong Kong’s iconic harbour.

The case became highly significant for establishing the legal principles governing protective costs orders – these are orders a court can make in public interest cases to cap an applicant’s potential liability to pay their opponent’s costs in the event they are unsuccessful.

Mr Cohen outlined the long-running legal battle – from BC&C’s first involvement in February 2014 to the Court of Final Appeal delivering its judgment in May this year – in a talk to legal professionals and NGO representatives organised by PILnet, the Global Network for Public Interest Law.

“While it was held that DHKL was not eligible for a protective costs order in this instance, the Court of Final Appeal recognised that the case was brought in the public interest and held that DHKL was not liable for the Town Planning Board’s costs. The court’s judgment is now the authority setting out the principles governing protective costs orders in Hong Kong,” said Mr Cohen.

“Most importantly, the Court of Final Appeal held that it is not enough for applicants to simply contend that public interest is involved, it is also essential to look at their financial ability in order to determine whether it would be fair and just to grant a protective costs order. If legal representatives of the applicant are acting pro bono this is likely to enhance the merits of the application.”

Mr Cohen was assisted in his presentation by DHKL CEO Paul Zimmerman, who explained the background to the case. It began when DHKL obtained leave for judicial review of the Town Planning Board’s decision to re-zone a strip of land along the promenade between Central and Wanchai for use as a military dock by the People’s Liberation Army. Since DHKL had limited financial resources and, as a corporate body, was not eligible for legal aid, BC&C stepped in to assist on a pro bono basis.

“Despite the obstacles in pro bono culture in Hong Kong, the Court of Final Appeal judgment has eased the fear of a costs order against an unsuccessful public interest organisation and bridged the gap in access to the civil justice system. In summary, it represents progress in public law in Hong Kong,” Mr Cohen concluded.

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Colin Cohen is pictured giving his presentation and (below) with DHKL CEO Paul Zimmerman and PILnet Director for Hong Kong Leontine Chuang and PILnet Programmes Manager Julia Mayerhofer (left).

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