Lau Ka Sin Cynthia v. Hospital Authority

DCEC 1014/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1014 OF 2013

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DECISION ON COSTS

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1.The applicant of these employee compensation proceedings is legally aided. At a directions hearing on 18 September 2015, the applicant’s assigned solicitor, Mr Man Ho Ching of Messrs Ho Tse Wai, Philip Li & Partners was absent. I made the following costs orders:

A. Costs Order Nisi

(1) There be a costs order nisi that:

(a) The applicant do pay the respondent’s cost of and occasioned by the application and the directions hearing on 18 September 2015; and

(b) The applicant’s own costs is to be taxed in accordance with the Legal Aid Regulations;

(2) This nisi order is to be made absolute unless the applicant makes an application by letter within 14 days to vary the order. In the letter, the applicant shall state the grounds for the variation;

(3) The respondent (if so desires) shall by letter state its ground of objections within 7 days thereafter;

(4) The variation application will, unless the court otherwise directs, be disposed of on papers.

B. Wasted Costs Order

(5) As a result of the absence of the Legally Aided assigned solicitor from the directions hearing, Mr Man Ho Ching, the assigned solicitor, will be given an opportunity to show cause why a wasted costs order in the following terms should not be made under Order 62 rule 8 of the Rules of the District Court:

(a) By directing the assigned solicitor to pay to the applicant costs which the applicant has been ordered to pay today; and

(b) Disallowing the costs as between the assigned solicitor and the applicant; and

(6) The showing of cause should be by letter within 14 days.

2.By a letter dated 2 October 2015, Messrs Ho Tse Wai, Philip Li & Partners have not applied to vary the costs order nisi but only show cause by stating:

“We cannot offer any valid explanation as to our absence at the hearing, other than to admit that it was an inadvertent mistake and an oversight on the part of the assisting solicitor and a miscommunication within the office in regard to the Court date”.

3.They further urged the court not to make a wasted costs order against the legally assigned solicitor personally by the solicitors offering:

“(i) our consent for our firm to pay the costs of the hearing to the Respondent; and

(ii) our undertaking not to charge any costs between the assigned solicitor and the Applicant.”

4.A solicitor’s failure to appear at a hearing constitutes conduct that warrants the making of a wasted costs order against him (see: Hong Kong Civil Procedure 2016 § 62/8/1 at p1184).

5.I do not consider the solicitor has provided sufficient reason against the making of a wasted costs order.  Nonetheless, I will refrain from making an order on this occasion by accepting the undertakings the solicitors have given in their letter set out in §3 above.

ORDER

6.In the circumstances, I make the following orders:

(1)Re: Costs Order Nisi

The costs order nisi is to become an absolute order.

(2)Re: Wasted Costs Order

Upon the undertakings by the solicitors to pay the costs of the hearing to the respondent; and not to charge any costs between the assigned solicitor and the applicant, I make no order.

7.I further direct my clerk to send a copy of this decision to Ms Mandy Chow, the Senior Legal Aid Counsel of the Legal Aid Department, who signed “the Notice of Re-Assignment of Solicitor” by which Mr Man was assigned.

Messrs Ho Tse Wai, Philips Li & Partners, assigned by the Director of Legal Aid, for the applicant

Messrs Deacons, for the respondent