Li Kwok Shing v. Law Ka Fu t/a Wing Fai Electrical Engineering and Another

CACV000212A/2002

CACV 212/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2002

(ON APPEAL FROM DCEC NO. 654 OF 2000)

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Coram: Hon Woo, Cheung and Ma JJA in Court

Date of Hearing: 2 May 2003

Date of Judgment: 21 June 2003

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J U D G M E N T

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Hon Woo JA:

1.This is an appeal from the Order of a District Judge made on 26 March 2002. On 26 November 2002, I granted leave for the appeal to be brought.

Background

2.This matter arose out of an employees' compensation ("EC") claim. On 30 July 1998, the applicant sustained injuries in the course of his employment with the respondents. On 25 July 2000, the applicant commenced proceedings in the District Court pursuant to the Employees' Compensation Ordinance, Cap 282 ("ECO").

3.There was no dispute as to liability. The respondents altogether made three payments into court, the last of which was on 3 October 2001. All the three payments into court were made in terms of Form 23 of the Rules of the District Court, Cap 336 ("RDC").

4.The action was fixed to be tried on 17 October 2001.

5.On 16 October 2001, the applicant accepted the payment in by filing a notice in terms of Form 24 of the RDC. That was done within the 14-day period allowed by O 22, r 3 of the RDC for acceptance.

6.However there was a dispute between the parties as to costs. The judge heard arguments on 17 October 2001 and he handed down judgment on 29 November 2001. The Order dated 26 March 2002, which is the subject of this appeal, was made pursuant to the judgment. By the Order, the judge ordered, among other things, the respondents to pay the applicant's costs of the case up to 3 October 2001 (the date of the payment into court) and the applicant to pay the respondents' costs of the case incurred after 3 October 2001 including the costs of and occasioned by the dispute over costs.

7.By this appeal, the applicant seeks an order from this Court to reverse the judge's Order and to order that the respondents do pay the applicant's costs of the case up to and including 16 October 2001 (the date of the giving of notice of acceptance of the payment in) and the costs of and occasioned by the hearing on 17 October 2001 in relation to the issue of costs.

The principal issue

8.The principal question upon which the applicant seeks this Court's determination is whether or not the provisions of Rule 20(2) of the Employees' Compensation (Rules of Court) Rules ("ECR") displace O 22 of the RDC or, if Rule 20(2) of the ECR is the only applicable provision, whether O 22 r 3 of the RDC is effective and applicable where the applicant's claim is effectively determined by his acceptance of the respondent's payment into court, without a hearing or decision by the District Court.

The jurisdiction of the District Court in EC claims

9.The District Court has almost exclusive jurisdiction in dealing with claims under the ECO insofar as such claims are made through judicial proceedings. S 18A of the ECO provides:

"(1) Except where otherwise provided under this Ordinance, all claims for compensation, except ...

and any matter arising out of proceedings in respect of such claims shall be determined by the District Court, whatever may be the amount involved, and the Court may, for that purpose, call upon any person to give evidence, if the Court is of the opinion that such person is, by virtue of his expert knowledge, able to assist the Court." (emphasis added)

10.S 21 of the ECO provides as follows:

"(1) Save as is provided in this Ordinance and any rules made thereunder, the District Court shall, upon or in connection with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connection with civil actions in such Court in like manner as if the Court had by the District Court Ordinance (Cap 336) been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply.

(2) The Court shall have jurisdiction to hear and determine any action notwithstanding that the amount claimed exceeds the sum mentioned in section 33 of the District Court Ordinance (Cap 336)." (emphasis added)

11.S 33 of the District Court Ordinance, Cap 336 gives the District Court jurisdiction to hear and determine any action for any claim the amount of which does not exceed $600,000. It is therefore clear from ss 18A and 21 of the ECO that even if the claim for EC exceeds $600,000, the claim shall be determined by the District Court. The District Court is thus the court with exclusive jurisdiction to deal with claims under the ECO, save for the Small Claims Tribunal which is empowered by s 10(11)(a) of the ECO to deal with EC claims not exceeding its jurisdictional limit. EC claims are also treated differently from other civil actions dealt with by the District Court in that while leave to appeal is necessary from an order or judgment of the District Court in other civil cases, an appeal against any order of the District Court made in an EC case, subject to the provisions of the ECO, is a matter of right without leave (see s 23 of the ECO).

The payment in provisions

12.S 50 of the ECO provides:

"The Chief Justice may make Rules of the Court for regulating proceedings before the Court and appeals to the Court under the provisions of this Ordinance, and for the fees payable in respect thereof."

13.Rule 20 of the ECR, which were expressly made pursuant to s 50 of the ECO, provides as follows:

"(1) A respondent from whom compensation is claimed may pay into court a sum which is considered by him to be sufficient to cover his liability.

(2) If no greater compensation be awarded than the sum of money which the respondent has paid into court, the court may order that any costs incurred by such respondent, after payment by him into court of the said sum of money, shall be paid by the applicant." (emphasis added)

14.It is to be noted that there are no further provisions in Rule 20 of the ECR or are there any other provisions in the entirety of the ECR to cater for the situation of the applicant's accepting the money paid into court pursuant to Rule 20, let alone the position as to costs relating to the parties, if such acceptance is made.

15.On the other hand, O 22 of the RDC provides a comprehensive procedure relating to payment into court, the time for acceptance, and the consequence of acceptance or otherwise relating to the question of costs. The provisions in O 22 of the RDC that are material to the facts of the present case are as follows:

O 22, r 1(1): "In any action for a debt or damages any defendant may at any time pay into court a sum or sums of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where two or more causes of action are joined in the action, a sum or sums of money in satisfaction of any or all of those causes of action."

O 22, r 3(1): "Where money is paid into court under rule 1, then, ..., within 14 days after receipt of the notice of payment or, ... in any case, before the trial or hearing of the action begins, the plaintiff may -

(a) where the money was paid in respect of the cause of action or all the causes of action in respect of which he claims, accept the money in satisfaction of that cause of action or those causes of action, as the case may be; or

(b) ...

by giving notice in Form No. 24 in Appendix A to every defendant to the action."

O 22, r 3(4): "On the plaintiff accepting any money paid into court all further proceedings in the action ..., to which the acceptance relates, both against the defendant making the payment and against any other defendant sued jointly with or in the alternative to him, shall be stayed."

O 22, r 3(6): "A plaintiff who has accepted any sum paid into court shall, subject to rules 4 and 10 and Order 80, rule 12, be entitled to receive payment of that sum in satisfaction of the cause or causes of action to which the acceptance relates."

(emphasis added)

16.It is therefore quite clear that if a plaintiff accepts the payment into court made by the defendant in satisfaction of the cause of action that the plaintiff claims, the plaintiff is entitled to recover the payment of that sum in satisfaction of the cause of action to which his acceptance relates, without any order made by the court for the payment out of the money.

17.Apart from the provisions empowering the plaintiff to accept the payment into court made by a defendant, which Rule 20 of the ECR does not provide for an applicant to do so regarding a payment into court by a respondent, the plaintiff's acceptance of the money paid in in accordance with O 22, r 3 also has a significant consequence on the costs of the action, which differs from Rule 20(2) of the ECR. O 62 r 10(2) of the RDC provides that in such a case, the plaintiff "shall be entitled to his costs of the action incurred up to the time of giving notice of acceptance." And under O 22, r 3(1) of the RDC a plaintiff has 14 days to consider whether he should accept the money paid into court. Besides, under O 22, r 3(4), upon the acceptance of the money by the plaintiff, all further proceedings in this action shall be stayed.

The judgment

18.In his judgment, the judge noted the differences between O 22 of the RDC and Rule 20 of the ECR and held that:

"6. Order 22 of the Rules of the District Court, Cap. 336 dealing with payment into court and acceptance with an automatic stay of proceedings cannot apply because it is implicitly displaced by Rule 20, Employees' Compensation (Rules of Court) Rules, Cap. 282....

Insofar as Rule 20 is inconsistent with Order 22, Rule 20 must prevail."

19.He further said:

"9. ... I believe there are two reasons for Rule 20 of the Employees Compensation Rules, Cap. 282 not to provide for acceptance of payment. First, an Application for compensation under the Employees Compensation Ordinance, Cap. 282 may involve infant interests for which the court has a duty to protect. If an applicant can terminate an ECC case by acceptance of payment in, the court cannot effectively protect the interests of infants who are not the nominal party. Secondly, there may be dependents not necessarily infants who may have a share in the compensation that the court should justify apportion. If the nominal applicant can by simply filing a form obtains the money paid in, the money may be unlawfully distributed or dissipated before the court has the opportunity to decide on apportionment among dependents.

10. In the premises, I hold that an applicant for compensation under the Employees Compensation Ordinance, Cap. 282 is not entitled to invoke Order 22 of the Rules of the District Court, Cap. 336 to accept payment into court. If an applicant wishes to accept monies paid into court in full and final settlement, a consent summons may be taken out for approval by the court. Alternatively, the applicant may on the day of trial apply for compensation to be determined in the same amount as the total of monies in court."

20.The judge then considered the circumstances of the payment into court made by the respondent and of the acceptance of the payment in by the applicant and exercised his discretion to make the order as to costs as reflected in his Order of the 26 March 2002.

Is O 22 of RDC applicable to EC proceedings?

21.Further support of the judge's ruling that O 22 of the RDC does not apply to EC proceedings in the District Court can be found in O 1 r 2(2A) of the RDC which provides:

"This Rules shall not have effect in relation to -

(c) proceedings -

(i) for the recovery of employees' compensation; and

(ii) in respect of which rules are made under section 50 of the Employees' Compensation Ordinance (Cap. 282)."

22.Ms Remedios, for the respondents, argues that as the ECR were made pursuant to s 50 of the ECO, O 1 r 2(2A) of the RDC expressly disapplies the RDC to EC claims dealt with in the District Court.

23.Mr Sarony SC, for the applicant, submits on the other hand, that the two sub-paragraphs (i) and (ii) should be construed conjunctively, and that O 1, r 2(2A) of the RDC disapplies any particular rule of the RDC to EC proceedings before the District Court only if "rules are made under s 50 of the Employees' Compensation Ordinance". He argues that since Rule 20 of the ECR, made under s 50 of the ECO, does not make provision for the acceptance of the payment in by an applicant, insofar as O 22 caters for the acceptance of payment in with the stated consequence of stay of the proceedings and O 62, r 10(2) caters for the consequence as to costs, these rules of the RDC should apply. He also relies on the terms of s 21 of the ECO that "the law, rules and practice relating to such civil actions ... of the Court shall mutatis mutandis apply" to say that O 22 and O 62, r 10(2) of the RDC should "mutatis mutandis apply" to EC claims before the District Court.

24.On the other hand, Ms Remedios makes the following points:

(a) An EC claim is a statutory claim and does not qualify as an "action for a debt or damages" in terms of O 22, r 1(1) of the RDC, and therefore the payment in made by the respondents were not and could not have been made under O 22. Consequently, O 22 cannot apply to an EC claim.

(b) Rule 20 of the ECR would be otiose if O 22 were to apply.

(c) S 18A of the ECO expressly makes the District Court to "determine" and any matter arising out of proceedings in respect of EC claims. This is an express provision conferring power and imposing duty on the District Court to determine EC claims. On the other hand, applying O 22 to acceptance of money paid into court would give rise to the automatic stay of proceedings and taxation of costs (pursuant to O 62, r 10 of the RDC). Thus applying O 22 and O 62, r 10(2) would deprive the District Court of its right and duty to determine on EC claims and of its discretion as to costs. Such deprivation should not be allowed to occur without clear statutory provisions to that effect.

25.In support of her contention that the word "determined" in s 18A of the ECO means a decision by the District Court resulting in an order or an "award" as referred to in Rule 20(2) of the ECR, Ms Remedios submits that there are two concurrent methods for an EC claim to be dealt with. One of such methods is by resorting to the Commissioner for Labour under various provisions of the ECO and the other is by bringing EC proceedings in the District Court. She asserts that if O 22 applies and EC proceedings in the District Court can be brought to an end by the staying of further proceedings without any decision or order of the Court, then first the applicant might still proceed with seeking compensation by resorting to the Commissioner, and secondly, the control by the Court that would otherwise obtain under s 13 of the ECO relating to apportionment of the money paid into court and the protection of the interests of persons under disability, such an infants, by the Court would have been lost. This second reason was raised before the judge and was accepted by him in para 9 of his judgment referred to in para 19 above.

26.While O 1, r 2(2A) of the RDC appears to have the stark effect of excluding the application of the RDC to EC claims, I am of the view that that cannot be its true interpretation. I consider that the proper interpretation is that a particular rule of the RDC only has no effect on EC claims so long as it conflicts with one or more rules of the ECR made under s 50 of the ECO. In my judgment, there is no conflict between Rule 20 of the ECR and O 22 of the RDC. Rule 20(1) is the only rule relating to payment into court by a respondent. Rule 20(2) deals with the situation as to costs which will be in the discretion of the District Court but the provision does not relate to acceptance of the payment in. Where the payment in has not been accepted, the Court will necessarily have to go on to make a decision or award, which qualifies as an "award" under Rule 20(2), and may order the costs of the action up to the date of payment in to be borne by the respondent and the costs incurred thereafter to be borne by the applicant. The same effect will generally be achieved if the payment in by a defendant under O 22 of the RDC is not accepted by the plaintiff, because the Court is obliged to take into account a payment into court when exercising its discretion as to costs (see O 62, r 5(b) of the RDC). Rule 20(2) leaves the position open if the payment in is accepted. O 22, if applicable, would fill in the lacuna, which cannot be in conflict or inconsistent with Rule 20. Indeed, O 22 provides and caters for all kinds of situation regarding the time of acceptance of the payment in which are left open by Rule 20.

27.If O 1, r 2(2A) is construed in the manner as contended for by Ms Remedios, it would result in the entirety of the RDC not being applicable to EC claims. I consider that this is not a proper construction, for it would be contrary to the express applicability of the RDC provided for in s 21(1) of the ECO in terms that "the law, rules and practice relating to such civil actions ... of the Court shall mutatis mutandis apply". On the other hand, the situation that an EC claim would arguably not otherwise comply with the qualification in O 22, r 1(1) that is only applicable to an "action for a debt or damages" is catered for by Rule 20(1) that expressly allows a respondent in an EC claim to make payment into court. Once a payment in has been made pursuant to Rule 20(1), the provisions of O 22 apply to the EC claim as they apply mutatis mutandis to an "action for a debt or damages". Rule 20(1) is therefore necessary and not, as argued by Ms Remedios, otiose.

28.The judge held that O 22 is inapplicable to payment into court in connection with an EC claim because such a claim is not an "action for a debt or damages", which echoed the part of the judgment in Ng Ming Chor v Pui Hing Construction Co Ltd & Ors, DCCJ 496/1996 (26 May 1998, unreported) to the same effect. While I accept that an EC claim is not an action for damages (see McGregor on Damages, 16th Ed, pp 1-7), it may be an action for a "debt", because s 10(11)(b) the ECO has made a certain kind of compensation under the ordinance to be recoverable as a civil debt in the District Court. See also s 33 of the District Court Ordinance. Without the necessity of deciding this point, I consider that the decisions in this case and in Ng Ming Chor were wrong to hold that O 22 of the RDC does not apply to EC claims, because these decisions had failed to take into account the operation of Rule 20(1) of the ECR and s 21(1) of the ECO in the way described above.

29.I am not persuaded by Ms Remedios' contention that the word "determined" in s 18A of the ECO must necessarily mean a decision or an order of the District Court. The section deals with the exclusive jurisdiction of the District Court, even if an EC claim involves an amount exceeding the jurisdictional level of the District Court. I consider that a situation where O 22, r 3(4) applies in conjunction with O 62, r 10(2) of the RDC, to have the proceedings stayed and to entitle the applicant to his costs of the action incurred up to the time of his giving notice of acceptance of the payment in, has the effect of the proceedings being "determined" by the District Court. The application of those rules would not affect the jurisdiction of the District Court in EC claims as provided for in s 18A.

30.Nor am I persuaded that the concurrent methods of making EC claims to the Commissioner and to the Court supports Ms Remedios' contended meaning of the word "determined". In my view, Mr Sarony is correct in saying that it would be most unlikely, if not impossible, for a respondent in an EC claim to fail to inform the Commissioner of his payment into court having been accepted by the applicant, in order to protect the respondent's interest, if there is a parallel claim before the Commissioner. This can simply be done by providing a copy of the applicant's notice of acceptance of payment in to the Commissioner. Mr Sarony is also correct in pointing out that even in the situation where O 22 applies, where there is any person under disability making an EC claim, that person's interest is protected by O 80, r 10 of the RDC which provides:

"Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the Court."

31.Similarly, the protection provided by s 13 of the ECO whereby the Court can make apportionment of the money paid into court regarding compensation payable upon death of an employee is still available where there is a payment in, because the payment in under this section, which is mandatory in a fatal EC case, is different from the payment in pursuant to Rule 20(1) of the ECR. The District Court's control over apportionment in such a fatal case is not displaced or affected by the application of O 22.

32.Look at the matter another way. Rule 20 has at least four effects that are not obtainable unless O 22 comes into play, namely,

(a) the applicant is not entitled to accept the money paid into court pursuant to Rule 20;

(b) the applicant is not entitled, upon acceptance of the money paid in, to his costs, incurred within 14 days after the payment in;

(c) the applicant is not entitled, upon acceptance of the money paid in within the time prescribed by O 22 or at any time, to a payment out without an order of the Court; and

(d) the District Court retains its discretion to deal with the question of costs even if the applicant has accepted the money paid in within 14 days as provided by O 22.

33.These effects of O 22 benefit an applicant by providing a convenient and cost-effective means for him to accept the money paid into court. They do not conflict with either the terms or spirit of Rule 20 of the ECR or any other provisions of the ECR, but rather help fill in the obvious lacunae.

34.On the question of costs, if the money paid in pursuant to Rule 20 is accepted under O 22, by virtue of O 62, r 10(2) of the RDC, the plaintiff is entitled as of right to tax his costs up to the date of his giving notice of acceptance and the court's discretion as to costs is removed. Cho Ho Kuen v Yu Kwok Wah & Others [2001] 3 HKC 566 is clear authority on the subject and it is instructive to note Keith JA's view on the amendment in 1992 to O 62, r 10(2) of the Rules of the Supreme Court that used to apply to District Court proceedings. He said at 569-70:

"... I conclude that the words 'his costs of the action' in Ord. 62 r. 10(2), when read with Ord. 62 r. 9(1), refer to the party's taxed costs of the action, and the court has no discretion to direct that the costs be assessed on some other basis. I am confirmed in that view by the legislative history of Ord. 62 r. 10(2). Prior to its amendment in 1992, it read (as far as is material):

'If a plaintiff accepts money paid into court in satisfaction of the cause of action ... in respect of which he claims, ... he may after 4 days from payment out and unless the Court otherwise orders, tax his costs incurred to the time of receipt of the notice of payment into court ...' (Emphasis applied)

It is true that when the rule came to be amended, the reference to taxation of the costs was removed, but that may have simply have been because the reference to taxation was unnecessary in the light of Ord. 62 r. 9(1). What is significant about the differences in Ord. 62 r. 9(1) before and after its amendment is that the words 'unless the Court otherwise orders' were removed. That can only have been done to remove the discretion which the court would otherwise have had to direct that the Plaintiff's costs should not be taxed."

35.Mayo VP's judgment is crisp and to the point. He said at 572:

"I agree with Keith JA's judgment. I am satisfied that O. 62 r. 10(2) is in clear terms and that no discretion is reposed in a judge to depart from the provisions of the rule.

...

It makes good sense when litigants are considering whether or not to accept a payment which has been made into court that there should be an element of certainty on the subject of costs so that everyone knows exactly where they stand. It would have been obvious to the defendants that the plaintiff's costs relative to the amount being claimed would be significant. Having regard to the clear wording of O. 62 r. 10(2) they should have realized that by accepting the $25,000 paid into court they would have to pay the plaintiff's costs in the District Court action as taxed."

36.The removal of the judge's discretion as to costs by O 62, r 10(2) has the described effect of certainty, which Rule 20 of the ECR does not provide. In the present case, the judge realised the benefits that could be obtained from O 22 of the RDC. He said:

"It may be argued that Order 22 of the Rules of the District Court, Cap. 336 has shifted the date to the date of notice of acceptance of payment into court. My view is that, since the Rules of the District Court, Cap. 336 were enacted in 2000 but the opportunity was not taken to change Rule 20 of the Employees Compensation Rules, Cap. 282 to bring it in line with Order 22 of the Rules of the District Court, Cap. 336, it was not intended that the new reckoning date should be applied to ECC cases."

37.In my view, effect must be given to s 21 of the ECO to allow the provisions of the RDC to operate, whenever necessary and with necessary changes (ie, mutatis mutandis), to cater for situations not covered by the ECR which only consists of 30 rules, so long as the provisions do not conflict with the rules of the ECR. S 21 already has the effect of applying the provisions of O 22 to EC proceedings in the District Court and it is unnecessary to bring the ECR in line with O 22 so as to confer the benefits obtainable under O 22 to the applicant in EC claims before that Court.

38.As O 22 applies, the roundabout ways of using a consent summons or applying at trial for the court to make an award equal to the amount paid in, as suggested by the judge in para 10 of his judgment (cited in para 19 above), for an applicant to obtain the money paid into court by a respondent, would not be necessary. Such roundabout ways, if I may say so, are inconvenient, costs increasing, and may operate to the detriment of an applicant on costs.

The Respondents' Notice

39.The Respondents' Notice raises several points, including the meaning of the determination of the Court under s 18A of the ECO, the need to protect infant interests, and the need of an order of the Court for payment out. Most of these have been dealt with in this judgment above. They do not affect my judgment.

40.It is mentioned in the Respondents' Notice that the money paid into court by the respondents had been effectively rejected by the applicant by his solicitors' letter dated 6 October 2001 and therefore any payment out thereafter required the consent of the parties and/or a court order. I do not agree. The letter of 6 October 2001 asked the respondents to increase the amount and notified them of the applicant's preparation to proceed to trial. It could in normal circumstances be treated as having the effect of a rejection of an offer to settle. However, a payment into court, albeit being similar to an offer with the security of the amount offered being in court, is not and cannot be considered as an offer to compromise. The payment in by the respondents must be subject to the operation of O 22 of the RDC, as I have decided that O 22 applies. Unless withdrawn with the leave of the Court in the meantime, the payment in was open for acceptance within 14 days (pursuant to O 22, r 3(1)(a)) and the automatic right of the applicant to payment out (pursuant to O 22, r 3(6)) followed. No consent of the respondents or order of the Court was necessary for payment out.

Conclusion

41.For the above reasons, I would allow the appeal with costs, including the costs occasioned by the Respondents' Notice. I would set aside the orders as to costs contained in the Order dated 26 March 2002 and substitute for them the following order, namely, that the respondents do pay the applicant's costs of the case up to and including 16 October 2001 and the costs of and occasioned by the hearing on 17 October 2001. I would also make an order that the costs of the applicant be taxed in accordance with the Legal Aid Regulations.

Hon Cheung JA:

42.I agree with the judgment of Woo JA and the judgment of Ma JA.

Hon Ma JA:

43.I agree with the order proposed by Woo JA and (save for a few refinements) his reasons for allowing the Applicant's appeal. I will adopt the same abbreviations.

The issues

44.The principal question on appeal has already been identified by Woo JA:- the extent to which Rule 20(2) of the ECR displaces the application of Order 22 of the RDC as a whole.

45.In answering this question, one must I think deal with the following questions of principle:-

(1) Do the RDC, in particular Order 22, apply to EC proceedings, having regard to sections 21 and 50 of the ECO and the ECR?

(2) Does Order 1 rule 2(2A) of the RDC make a difference?

(3) If Order 22 of the RDC applies to EC proceedings, what is the scheme for payments into court in EC proceedings?

46.I deal with these issues in turn.

Do the RDC, in particular Order 22, apply to EC proceedings, having regard to sections 21 and 50 of the ECO and the ECR?

47.Section 21 of the ECO, set out in paragraph 10 above, states that the District Court when dealing with EC claims shall have the same powers and jurisdiction exercisable by it in connection with civil actions and makes the "law, rules and practice" of the District Court apply "mutatis mutandis" to EC proceedings. These provisions and its intention are clear:- to make applicable the procedure and practice of the District Court to EC proceedings (EC claims are dealt with by the District Court: see section 18A of the ECO).

48.What is said in the previous paragraph is, however, qualified by the opening words of section 21, "Save as is provided in this Ordinance and any rules made thereunder ...". Here, so far as rules are concerned, section 50 of the ECO (set out in paragraph 12 above) enables the Chief Justice to promulgate rules regulating EC proceedings.

49.Rules were made regulating EC proceedings, namely, the ECR. Is the effect then of the qualifying words mentioned in the previous paragraph to exclude the DCR altogether? Specifically, this being the crucial question in the present case, is Order 22 of the RDC excluded?

50.This is, in my view, ultimately a question of construction. And, as with all situations involving the construction of statutory provisions, it is important to give the relevant provisions a sensible interpretation. In the present instance, we are dealing with provisions relating to the applicable procedures for judicial proceedings (i.e. EC claims). The starting point here then must therefore be the establishment of procedures that will facilitate and promote the administration of justice in such proceedings.

51.In my view, the intention behind section 21 of the ECO is to provide for EC claims as comprehensive a procedural system as that governing civil claims in the District Court. The RDC (in most respects identical to the Rules of the High Court) provide a comprehensive and workable procedural context in which civil litigation in the District Court is regulated.

52.However, it must also be recognised that there are certain features peculiar to EC claims, given their nature. This is reflected not only in the ECO itself (for example, that the involvement of the Commissioner for Labour in relation to work-related injuries), but also in the ECR.

53.The ECR contain a number of provisions that reflect the unique nature of EC claims. For example, the Registrar of the District Court shall keep a separate file in relation to such claims (Rule 6) and the originating process is quite different from ordinary proceedings in the District Court (Rule 16).

54.That said, whatever the differences between the ECR and the RDC as reflected in the rules themselves, in my view, it is nevertheless clear that a lot of what is applicable in the District Court in ordinary civil actions, must also apply to EC proceedings. There are many aspects of civil procedure missing in the ECR that one would expect to find in any civil adversarial proceedings. For example, nothing in the ECR deals with fairly obvious matters such as the method of making applications to court (cf. RDC Order 32) or even costs (cf. RDC Order 62). In other instances, although certain aspects are dealt with, they are incomplete by themselves. One example in this context are amendments to claim applications (ECR Rule 19). I would have thought that in order to see the full extent of the applicable procedure in relation to amendments, some reference needs to be made to RDC Order 18.

55.The ECR comprise only 30 rules dealing with 6 topics. On the other hand, by contrast, the RDC comprise some 80 orders covering all aspects of civil litigation in the District Court. Admittedly, not all orders in the RDC can apply to EC claims (for example RDC Order 28 relating to originating summonses cannot apply), but a lot do. If they did not, the system of civil procedure in EC claims contains far too many gaps.

56.We are in the present appeal of course concerned with the aspect of payments into court in EC claims. The existence of ECR Rule 20 demonstrates that this feature of civil litigation is also relevant to EC claims which are similarly regarded as being adversarial in nature. Yet, a cursory look at Rule 20 shows quite starkly that it does not provide anywhere near a complete code in relation to payments into court. Woo JA has pointed out some of the lacunae here (see paragraph 32 above). I would add another. Nothing in Rule 20 deals with the aspect of non-disclosure to the court of payments in (c.p. RDC Order 22 rule 7). Similarly, Rule 20 makes no provision for increases in payments into court (c.p. RDC Order 22 rule 1(2) and (3)). In this latter regard, it is perhaps interesting to note that the increases in the payments into court made by the Respondents in the present case followed the wording used in forms prescribed under the RDC.

57.In short, unless one combines ECR Rule 20 with RDC Order 22, there is such an incomplete system for payments into court for EC proceedings that the whole system in fact becomes very uncertain, if not unworkable. This cannot have been the intention behind either section 21 of the ECO or the ECR themselves.

58.Ms Remedios submitted that where a separate code was in existence (namely the ECR), then the effect of the opening, qualifying words of section 21 of the ECO was to exclude the applicability of the RDC, certainly at least where the ECR dealt with the same subject matter. The simplicity of this argument is attractive, not least because it would obviate the necessity of applying a "cut and paste" approach to the ECR and the RDC. This must have been what also persuaded the judge below. In my view, persuasive though this argument is, it cannot be right once one considers the objectives or starting point I have referred to earlier (see paragraph 50 above).

59.As for the submission that RDC Order 22 is inapplicable since that order only applies to an "action for debt or damages" (RDC Order 22 rule 1(1)), here I would differ slightly from the reasons given by Woo JA. In my view, a claim for employee's compensation is a claim neither for a debt nor for damages. It is a claim for statutory compensation. However, RDC Order 22 is made applicable to EC proceedings because section 21 of the ECO expressly makes applicable the "rules and practice" of the District Court relating to civil actions to EC claims "mutatis mutandis". One must, therefore, adapt the words "debt or damages" in RDC Order 22 rule 1(1) to cover EC claims. Reliance was placed by the Respondents on Ng Ming Chor v Pui Hing Construction Company Limited, see above, in support of the proposition that RDC Order 22 was inapplicable because an EC claim was not a claim for "a debt or damages". I am not convinced on a proper reading of the judgment of H.H. Judge To that this is made out at all. I think the learned judge was saying the opposite when his judgment in that case is read as a whole.

60.As for the other submissions of Ms Remedios in relation to this question, I would adopt the reasoning of Woo JA.

Does Order 1 rule 2(2A) of the RDC make a difference?

61.RDC Order 1 rule 2(2A) has already been set out in paragraph 21 above.

62.Again, attractive though Ms Remedios' submissions are in their simplicity, I am unable to agree. Much the same reasons apply here as in relation to the previous question. I would just emphasise the provisions of RDC Order 1 rule 2(2A)(c)(ii). This subparagraph reinforces the point that the provisions of the RDC (which may otherwise be applicable) are excluded only where express provisions exist to deal with particular situations in the ECR. For example, ECR Rule 20(2) covers the specific situation where the court has awarded a sum less than the amount paid into court. Where, however, the ECR (i.e. "rules made under section 50 of the Employees' Compensation Ordinance") do not cover the precise situation, in my view, section 21 of the ECO has the effect of making applicable the RDC. I have already dealt with the effect of that section and that section being primary legislation (unlike RDC Order 1 rule 2(2A) which is secondary legislation) in any event prevails.

63.Another way of testing the matter is to look at the position if the RDC do not apply to EC proceedings. In my judgment, an obvious absurdity emerges since there would be no workable procedural context for EC claims. In other words, the ECR by themselves cannot provide a complete code; on the contrary, far from it. At one stage, Ms Remedios seemed driven to answer this point by suggesting that perhaps the RDC could give some form of guidance without their being compulsorily applicable. This, I think, just further demonstrates the fallacy of the argument.

If Order 22 of the RDC applies to EC proceedings, what is the scheme for payments into court in EC proceedings?

64.This question has already been answered above. In my view, the scheme for payments into court in EC proceedings requires the application of both ECR Rule 20 and RDC Order 22.

Representation:

Mr Neville Sarony SC, instructed by Messrs Liau, Ho & Chan, for the applicant (appellant).

Ms Corinne Remedios, instructed by Messrs Hastings & Co, for the respondents (respondents).