Mir Moazzam v. Secretary for Justice Sued for and on behalf of Director of Immigration

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 327 OF 2015

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DCCJ 4591/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4591 OF 2014 -------------------- BETWEEN       MIR MOAZZAM Plaintiff   and     SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION Defendant -------------------- DCCJ 4751/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4751 OF 2014 -------------------- BETWEEN       SUBHAN Plaintiff   and     SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION Defendant -------------------- DCCJ 327/2015

BETWEEN
	RANA SHAHZAD AHMAD	Plaintiff
	and
	SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION	Defendant

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DCCJ 341/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 341 OF 2015

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BETWEEN
	AHMED ZAHEER	Plaintiff
	and
	SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION	Defendant

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DCCJ 1616/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1616 OF 2015

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BETWEEN
	DHIMAN JASVIR	Plaintiff
	and
	SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION	Defendant

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Before:  His Honour Judge Andrew Li in Chambers

Date of Hearing:  22 July and 3 August 2016

Date of Decision:  24 August 2016

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DECISION

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1.This is a wasted costs order made against the solicitors representing the plaintiffs personally in the above cases in a case management context.

BACKGROUND

2.There has been a flood of cases brought by claimants under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) or what is sometime known as the non-refoulement claim in the District Court following the decision oftheCourt of Final Appeal (“CFA”) in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 in March 2014. These torture claimants are claiming damages for unlawful detention against the defendant, namely, the Secretary for Justice on behalf of the Director of the Immigration (“the defendant”).

3.After my judgment was handed down in Saeed v Secretary for Justice [2015] 1 HKLRD 1030 at the end of January 2015, I have been told that most of these cases handled by firms familiar with human rights cases had either been settled or withdrawn.  However, there remains a substantial number of such cases in the District Court waiting to be resolved.  These cases are mainly handled by 2 firms of solicitors in Hong Kong.  One of the firms, which represents the claimants in the current batch of cases, namely Messrs M.C.A. Lai & Co (“MCAL”) has around 450 cases[1] and the other firm has about 220 cases.  I was given to understand by the representatives from the Department of Justice (“DoJ”) who represents the defendant in all of these cases that there are around 60 cases in total handled by the rest of the solicitor firms in Hong Kong combined together.

4.Due to the large number of such cases which all involved with the same issues of law and similar issues of facts, the court has decided to consolidate and put these cases into “batch trials” in order to ensure efficient use of the court’s time and resources.  Hence, from the end of February 2016 onwards and on a monthly basis, this court has conducted a number of Case Management Conferences (“CMC”) to call up cases handled by these 2 firms of solicitors in order to put cases involving (i)  plaintiffs who speak the same language/dialect; (ii) the same or substantially the same defendants’ witnesses; and (iii) the same or substantially the same issues of law and facts, into separate “batches” for the purpose of conducting Pre-trial Review (“PTR”) and trials.

5.Despite great initial reluctance and under severe protest made by them, MCAL has finally agreed to the “batch trial” proposal came up by the DoJ which was endorsed by the court at the first CMC.

6.In passing, I wish to add that of the 450 cases handled by MCAL, only 212 cases were assigned by the Director of Legal Aid (“DLA”) [2]. The rest of the cases were engaged by the claimants allegedly on a “private basis”.  As to the source of the funding of those cases, I had been told by the solicitor from MCAL who attended the first CMC on behalf of the claimants in February 2016 that they had either come from “the claimants themselves or from their friends”.  Such explanation sounds decisively hollow as the claimants are either here to seek protection under the CAT or to seek refugee status under United Nation’s Refugee Convention. Therefore, most of them have no money and could not be engaged in any lawful employment in Hong Kong.  They rely on a meager living allowance, food coupons and/or a negligible rental subsidy either from the Government or the UNHCR or other agencies for their existence. 

7.This explanation later was changed by the principal of the firm, namely Mr Anthony Lai at a subsequent CMC when he told the court that his firm was acting for the alleged torture claimants without requesting them to pay costs on account, a practice which, according to Mr Lai, was not only allowed but has been specifically endorsed by the CFA in the case of Winnie Lo v HKSAR (2012) 15 HKCFAR16, see especially §§100-110.

8.Be it as it may, this is not the subject of today’s discussion but I wish to put down a marker here that if this court were to find any evidence of maintenance or champerty involved in any of the non-legally aided cases, this court will have no hesitation to refer such cases to the appropriate authorities for investigation and further action.

9.Incidentally, after I had issued a similar warning in court at the first CMC hearing on 24 February 2016, in an open letter to the DoJ[3], MCAL immediately identified 92 of what they would themselves admitted as “meritless and/or weak cases”. They were willing to settle those cases on a “drop hands basis”, subject to the issue of costs. 

10.Whether they are as a result of my warning or not is not a matter of this court’s concern for the present purpose, but a casual glance of some of the case files of those 92 “weak cases” revealed that they are clearly lack of merits.  Some of these claimants appear to be “economic migrants” rather than genuine torture claimants.  Some cases involved with domestic workers or “over-stayers’ who had overstayed their visas for many years and, after arrested by the Police, suddenly decided to make a torture claim.  Yet others were literally shipped in by the flock illegally by what would appear as syndicates involving with human trafficking in large groups across the border and would immediately claim under the CAT as torture claimants upon their arrival.  Further, some of these claimants were detained by the authorities for relatively short periods of time pending investigations and processing. Yet they still filed for damages claim for alleged unlawful detention. In my view, these “weak cases” are clearly without merits and should have never been commenced in the first place or should have been withdrawn long time ago.

11.I wish to state here for the record that for the genuine torture claimants or asylum seekers who have a legitimate claim against the Government, their rights will be protected by the law and none of them will be deprived of their chance of having their case being heard by the court. They will enjoy the due process of the law offered under our legal system.

12.It is against the above background and context that the CMC for the above cases was held on 23 March 2016[4] and the PTR on 22 July 2016.

13.I note that all the plaintiffs in the current 5 cases in this batch are legally aided.

DISCUSSION

The Law relating to Wasted Costs Order

14.I am grateful to Mr Stanley Ng, counsel for the defendant, for summarizing the legal principles involved in situations where a court may make a wasted costs order against a legal representative.  I find them helpful and they accord with the result of my own research on the topic. I would respectfully adopt them below with some slight modifications of my own.

15.The jurisdiction of the court to make wasted costs orders can be found under s 53 of the District Court Ordinance, Cap 336 (“DCO”), which is equivalent to s 52A of the High Court Ordinance, Cap 4.  “Wasted costs” is defined in s 53(5) of the DCO as “any costs incurred by a party as a result of (a) an improper or unreasonable act or omission; or (b) any undue delay or other misconduct or default on the part of the legal representative, whether personally or through an employee or agent of the legal representative”.  S 53(6) further defines “legal representative”, in relation to a party to any proceedings, to mean a counsel or solicitor conducting litigation on behalf of the party.

16.Such power of the court to make wasted costs orders against solicitors is founded on the solicitor’s breach of his duty to the court as an officer of the court which has a duty and right to supervise the conduct of its solicitors[5]. The CFA has given guidance on applications for wasted costs orders in Ma So So v Chin Yuk Lun Francis and Chan Mee Yee [2004] 3 HKLRD 294, which was recently applied in Lau Kwai Kiu v Bian Xintian & Anor [2012] 2 HKLRD 954.

17.The CFA in Ma So So held at §6 that:-

“In considering the exercise of the jurisdiction under this rule [ie O 62, r 8], the court should approach the matter by dealing with the following questions:

(1) Whether the solicitor was responsible for (i) acting improperly or without reasonable cause or (ii) for undue delay or any other misconduct or default in any proceedings.

(2) Whether such conduct of the solicitor caused costs to be incurred or wasted. This is a question of causation. The causal link between the solicitor’s conduct and the extent of costs incurred or wasted must be established.

(3) Whether the court should exercise its discretion to make an order.”

See: Chan Wai Tung v Tang Kwok Kwong & Ors, unreported, DCPI 1503/2007, 20 October 2010; Yau Chiu Wah v Gold Chief Investment Ltd [2003] 3 HKLRD 553; Ma So So v Chin Yuk Lun Francis and Chan Mee Yee, supra; Lau Kwai Kiu v Bian Xintian & Anor, supra.

18.The jurisdiction should be invoked in clear cases, but it does not depend on dishonesty, personal obliquity or behavior such as would warrant disciplinary action being taken, and that while mere mistake or error of judgment may not necessarily be enough, “misconduct, default or even negligence which is serious and gross” may be sufficient.  It may be conduct which involves a failure on the part of the solicitor to fulfill his duty to the court and to realize his duty to aid in promoting in his own sphere on the cause of justice.  The conduct must be inexcusable and such as to merit reproof.  The test is whether the conduct amounted to a serious dereliction of duty.  See: Chan Wai Tung v Tang Kwok Kwong & Ors, supra; Yau Chiu Wah v Gold Chief Investment Ltd, supra; Hong Kong Civil Procedure 2016, Vol 1, pp 1184-5, §62/8/1.

19.When exercising its discretion as to costs, including a wasted costs order, according to O 62, r 5(1)(aa) of the Rules of the District Court (“RDC”), the court should also take into account the underlying objectives set out in O 1A, r 1 of the RDC.  The underlying objectives include:-

“(a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the court.

...

(d) to ensure fairness between the parties.

...

(f) to ensure that the resources of the court are distributed fairly.”

20.In terms of procedure, under O 62, r 8B of the RDC, there are two stages.  In the first stage, the court must be satisfied that it has before it, evidence or other materials which, if unanswered, would be likely to lead to a wasted costs order being made.  In the second stage, the court shall consider the reasons given by the legal representative when deciding whether it is appropriate to make a wasted costs order.

Events leading to the PTR on 22 July 2016

21.In respect of cases DCCJ 341/2015, DCCJ 1616/2015, DCCJ 4591/2014 and DCCJ 4571/2014, at the CMC on 23 March 2016, the court made an order that the plaintiff in each case shall prepare the trial bundles (for the purpose of the PTR) in accordance with Practice Directions 5.2 and 5.6 and to lodge the same with the court and serve them on the defendant by 4:00 pm on or before 15 July 2016.  The court also ordered that the PTR hearing would be fixed on 22 July 2016 at 9:30 am.

22.In respect of DCCJ 327/2015, at the CMC held on 21 June 2016, the court made an order that this particular case to be added to this batch of cases for PTR and trial purposes, as one of the original cases in the batch had been settled after the CMC.  The court made the same order in this case as in the other 4 cases in the same batch that the plaintiff shall prepare the trial bundle in accordance with Practice Directions 5.2 and 5.6 and lodge the same with the court and serve them on the defendant by 4:00 pm on or before 15 July 2016.

23.There was no indication or suggestion from the solicitor from MCAL who attended the CMC on 23 March 2016 or 21 June 2016 on behalf of the plaintiffs that they would have any difficulty in meeting the timelines set out in those directions.  Given the fact that in 4 out of the 5 cases, they had almost 4 months to do so, it is difficult to imagine how any reasonably competent solicitors would not be able to meet those timelines.  For the other case, the plaintiff’s solicitors had more than 3 weeks to prepare the trial bundle.

24.However, this is exactly what MCAL had failed to do.    

25.In respect of all 5 cases, the plaintiffs’ solicitors had failed to lodge and serve the respective trial bundles on or before 15 July 2016.

26.On 18 July 2016, 3 days after the deadline when they were supposed to deliver the trial bundles for the purpose of the PTR hearing, DoJ wrote to MCAL (which letter was copied to the court), putting on record that the trial bundles in respect of all the cases in this batch trial had not yet been received. 

27.No response or reply was given by MCAL. 

28.The clerk of the court had also tried to chase up the trial bundles but to no avail.

29.In the afternoon of 19 July 2016, 3 days before the PTR, MCAL served on DoJ the trial bundles in respect of two cases, namely, DCCJ 4751/2014 and DCCJ 341/2015.  The court also received those bundles in the above 2 cases around 4:00 pm on that day.

30.On 21 July 2016, at around 5:00 pm, ie the evening before the PTR, MCAL served on DoJ the trial bundles in respect of the 2 other cases, namely, DCCJ 327/2015 and DCCJ 1616/2015.  The same trials bundles in those 2 cases were lodged with the court at around 5:00 pm on the same day.  

31.However, MCAL had not served on DoJ nor lodged with the court any trial bundles in respect of DCCJ 4591/2014.  Until the evening before the PTR hearing, MCAL had not informed DoJ or the court of the reasons why no bundles were prepared for this case.  By a letter transmitted through facsimile at 5:46 pm on 21 July 2016 to the court (which was copied to DoJ), MCAL informed the court for the first time that, due to a notice of sanctioned payment made by the defendant on 6 July 2016 and due to the fact that the plaintiff had refused to accept the sanctioned payment, upon MCAL’s advice, DLA had issued a notice to show cause on 14 July 2016.  The court was further told that the plaintiff in that case was supposed to attend the Legal Aid Department in the afternoon of 22 July 2016 to show cause.  As MCAL was of the view that the legal aid certificate would be discharged, they asked for “further directions” from the court of how to deal with the matter.               

What took place at the PTR

32.The PTR hearing took place as scheduled on 22 July 2016 at 9:30 am.

33.I would like to pause here and mention the fact that MCAL had never, prior to the deadline to file and lodge the trial bundles on 15 July 2016, indicated to DoJ their reasons for not lodging and serving the trial bundles for the 5 cases nor had they written to the court or DoJ seeking for indulgence and/or making a request for extension of time to lodge and serve those bundles. 

34.Further, for reasons best known to MCAL, duplicated bundles marked as “Bundle of the Plaintiff to be lodged for Set Down for Trial” were lodged with the court either at the same time or before the trial bundles were lodged.  They were not done pursuant to any court orders either made by Master S P Yip (who is the master in charge of the case management of all the torture claimants’cases in the District Court at the registry level) or any practice directions.  They were done totally unnecessarily and were a complete waste of paper, costs and time.   

35.At the PTR, it was found that the trial bundles were not compiled in accordance with the aforementioned practice directions.  In some of those cases, over or nearly 500 pages of documents were placed in one single box file which makes turning the pages impossible.  They were also not sectioned or divided into separate parts according to the index[6].

36.However, as in most such cases where parties have failed to follow the practice directions or the court’s case management directions, the defect lies not so much in the technicalities but in the delay. In this case, it was not how the bundles were compiled that the court found repugnant (which the court was prepared to put up with) but in the lateness of lodging those bundles.  By lodging them with the court and serving them on the other side either a couple of days or the evening before the PTR, the plaintiff’s solicitors had practically allowed the court or the other side no chance to read and digest the contents and hence to prepare for the PTR properly.  This in my judgment defeats the whole purpose of having an order to have the bundles served or lodged at least one week in advance of the PTR, which purpose of course was to enable all parties concerned to have the proper chance to read into the case before the hearing.

37.Due to the above reasons, the PTR could not proceed on 22 July 2016 and was adjourned to 3 August 2016.  MCAL was ordered to re-compile the trial bundles in accordance with the practice directions in respect of all 5 cases. They were to be lodged and served again on or before 4:00 pm on 29 July 2016.  This court also ordered MCAL to submit written explanations as to why a wasted costs order should not be made against them personally for the costs thrown away by the adjournment.

The plaintiffs’ written explanations to the court

38.In MCAL’s letter to the court dated 27 July 2016, MCAL explained that for 3 of the 5 cases, namely, DCCJ 327/2015, DCCJ 1616/2015 and DCCJ 4751/2014, they had only received the notice of amendment to legal aid certificates from the DLA on 18 July 2016 to cover the PTR.  However, in the letter, MCAL failed to explain when did they first seek directions from DLA to extend the legal aid certificates.  MCAL also failed to mention why they could not have chased up the extension of the legal aid certificates from DLA sooner.  Further, they failed to explain why they could not have informed the court and/or DoJ that they could not meet with the deadline in lodging the bundles as ordered by the court, such that any necessary directions could be made by the court prior to the PTR in order to avoid the adjournment.

39.From the timetable found in MCAL’s letter dated 27 July 2016, it is noted that for case DCCJ 341/2015, MCAL had already received the notice of amendment of legal aid certificate to cover the trial as early as on 4 May 2016. Hence, there is absolutely no reason why MCAL could not have complied with the court’s order to lodge and serve the trial bundles in time at least in respect of that case. 

40.According to MCAL’s letter to DLA dated 7 July 2016[7], MCAL had already indicated to DLA that, for DCCJ 4591/2014, they would advise the aided person to accept the sanctioned payment.  However, at of the date of the PTR on 22 July 2016, the plaintiff in that case still refused to accept the same.  According to what MCAL told this court on 22 July 2016, the plaintiff was due to attend the DLA’s office in that afternoon to show cause as to why the legal aid certificate should not be discharged.  

41.In my view, as the assigned solicitors by DLA and the solicitors on record, unless and until the legal aid certificate is discharged, MCAL has the duty to proceed with the PTR and to lodge and serve the trial bundles as directed by the court.  In this case, MCAL did not even have the courtesy to inform the court or DoJ as to what was happening until at almost 6:00 pm the evening before the hearing.  Such acts in my judgment not only show a lack of competence but a complete lack of respect to both the court and their opponent.

42.With the other 4 cases, MCAL insisted that they had been put in a dilemma as on one hand they have to comply with the court’s orders while on the other hand they were waiting for instructions from the DLA.  They claim that they were left with no alternative but to start working after receiving the extension of the legal aid certificates.   

43.However, a closer scrutiny of events took place between the CMC on 23 March 2016 and the originally scheduled date of the PTR on 22 July 2016 reveals a rather different picture. 

44.While it is true that MCAL did write to the DLA to make a request for the extension of the legal aid certificates after the CMC hearing on 23 March 2016[8], I note that it was for the general purpose of seeking an extension to cover the trial and not specifically asking for extension of the certificates to cover the attendance of the PTR only.

Explanations given by MCAL at the hearing

45.Be it as it may, it seems that not much else was done by MCAL to chase up the amendment to the legal aid certificates in the interim.  Mr Anthony Lai, the principal of MCAL, who attended the wasted costs order hearing on 3 August 2016, claims that phone calls were made by his staff to chase up the DLA for extending the certificates during the interim period.  However, they were not able to produce any evidence such as correspondence or telephone attendance notes to support such claims. 

46.Further, on 18 May 2016, Mr Samuel Yiu, a senior legal aid counsel, writing on behalf of the DLA, has expressly stated in the letter that they fully understood that there would be a PTR on 22 July 2016 and that DLA needed to extend the certificates and assign/re-assign counsel for this group of cases in good time.  Mr Yiu stated in the letter that they would attend to the matter and would inform their stance on the way forward as soon as possible to MCAL.

47.Yet, it seems again nothing else was done by MCAL as there were letters from DLA chasing MCAL for the report of the progress of this batch of cases in June 2016 but with no reply coming from them. At least, none was produced to me at the hearing.

48.On 6 July 2016, Mr Samuel Yiu on behalf of DLA, by referring to a previous letter from DLA to MCAL, wrote and reminded MCAL that they needed to have legal aid certificates extended to cover the PTR on 22 July 2016.  On 7 July 2016, by an “urgent fax”, MCAL asked for an extension of the legal aid certificates to cover the PTR.

49.Very significantly, what MCAL did not tell the court in their explanation letter is that, on 8 July 2016, ie 2 weeks before the PTR, DLA had already made a formal written reply to MCAL confirming that they would extend the legal aid certificates to cover the PTR.  This important letter was never included as part of the correspondence attached to  MCAL’s explanation letter dated 27 July 2016.  It was only upon the court’s enquiry at the hearing on the wasted costs order on 3 August 2016 that a copy of this letter was produced to the court upon request.

50.As the correspondence which was handed up to the court during the 3 August 2016 hearing reveals, it appears that 7 July 2016 was the first time when MCAL had specifically asked the DLA to extend the legal aid certificates to cover the PTR.  And on the next day, ie 8 July 2016, DLA had already confirmed in writing that legal aid certificates will be issued to cover the PTR on 22 July and asked MCAL to attend the PTR themselves instead of engaging counsel in order to save costs. 

51.Yet, instead of chasing DLA for the certificates and perhaps asked for the certificates to be faxed to them once they are issued so that they could start with the preparation work, MCAL chose to do nothing in preparing for the PTR in the interim and waited for the certificates to arrive. 

52.Those legal aid certificates to extend to cover the PTR were eventually issued by DLA on 12 July 2016.  Yet, Mr Lai claims that they could not start working on the case until they receive the original copies of the certificates, otherwise their costs might not be covered by the legal aid fund.  He says that they had only received the original copies of those certificates in the post at MCAL’s office around noon on Monday, 18 July 2016, as the time chop on the certificates confirmed. 

53.With respect, I find such explanations totally unconvincing.  While it is true that the assigned solicitors may not be able to recover their costs from the legal aid fund for any work done that is not covered by the legal aid certificates, in the circumstances of this case, it is clear that they had hardly done anything to chase up the issue of the extension of the certificates until only about 1 week before the deadline of lodging the trial bundles for the PTR hearing on 15 July 2016.  Further, since they already had the assurance from the senior legal aid counsel in writing that such extension of legal aid certificates would be issued to cover the PTR on 8 July 2016, in my view, there is no good reason why MCAL could not have started preparing the bundles for the PTR from that date in reliance of that letter.  Yet further, there is no reason why they could not have chased up for copies of the certificates to be faxed to them once they were issued by DLA. 

54.In my judgment, there is simply no good reason why MCAL had to wait for the arrival of the original copies of those certificates when they knew that the PTR, which is a milestone date under the CJR, would be looming around the corner so to speak. Further, in my judgment, it is incumbent on an assigned solicitor who is faced with deadlines of milestone dates like a PTR or trial to chase up the DLA for the legal aid certificates and not to wait for the physical copy of the original certificates to arrive in the post before carrying out their work. In my view, the plaintiff’s solicitors in this case could have started preparing for the trial bundles once they received the letter of confirmation from the senior legal aid counsel on 8 July 2016 that legal aid will be extended to cover the PTR. Or latest on 12 July 2016 when the certificates were actually issued, had they been diligent in following up with the matter.       

55.What I find most disturbing about this case is that all the above correspondence was not attached as part of the correspondence in support of the submissions and/or written arguments of MCAL to explain why the wasted costs order should not be made against them personally.  They were disclosed in piecemeal fashion during the submissions made by Mr Lai in court on 3 August 2016.  Those letters have literally come out one by one as the court kept pressing MCAL to reveal the full picture of what took place between them and DLA. It was like getting blood out of a stone. In my judgment, as an officer of the court, the plaintiff’s solicitors should have been upfront and disclosed all the relevant correspondence in the first place. It should not wait for the court to ask them to do so in a piecemeal fashion during a hearing. Otherwise, it will only leave the distinct impression that they have deliberately trying to hide something from the court. The fact that MCAL decided to “hide” those crucial correspondence with DLA in my view shows that they knew very well that they had failed to follow up with the matter and it was not until very late in the day that they had started to chase up the DLA for the extension of the legal aid certificates to cover the PTR.

56.In the aforestated circumstances, all the above 5 cases, I find that the adjournment was caused by the misconduct, default and neglect on the part of the MCAL and therefore they should be personally liable for the costs thrown away as a result of the adjournment. 

The 2 Cases Settled before the adjourned PTR date: DCCJ 4591/2015 and DCCJ 341/2015

57.For DCCJ 4591/2014, the defendant has made a sanctioned payment on 6 July 2016 to settle the whole claim.  The plaintiff accepted the sanctioned payment on 25 July 2016.

58.For DCCJ 341/2015, the defendant has made a sanctioned payment on 22 July 2015 to settle the whole claim.  The plaintiff accepted the defendant’s sanctioned payment on 26 July 2016.

59.They happened before the adjourned PTR and wasted costs order hearing on 3 August 2016.

60.According to O 22, r 20 of the RDC, where a defendant’s sanctioned payment to settle the whole claim is accepted without requiring the leave of the court, the plaintiff is entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the court otherwise orders.

61.The defendant submits that the guidance laid down by the Court of First Instance in Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184 as to when the “order otherwise” proviso under O 22, r 20 does not affect the court’s exercise of jurisdiction to order a wasted costs order in the present context as it sees fit. I agree with such submission and I would respectfully adopt the same.

62.As a matter of fact, the court directed on 27 July 2016 that the adjourned PTR hearing on 3 August 2016 for DCCJ 4591/2014 and DCCJ 341/2015 “will still proceed for the purpose of dealing with the wasted costs order”.

63.In addition, for DCCJ 341/2015, since MCAL had received the extension of legal aid certificate as early as on 4 May 2016 to cover the trial, there is in my view no excuse for MCAL not to prepare for the trial bundles for the PTR in time.

64.It is clear that the defendant had incurred extra costs for preparing and attending the PTR on 22 July 2016 owed to no fault on his part.  It would only be fair that if the defendant could recover the wasted costs from MCAL on these two cases despite the subsequent acceptance of the sanctioned payment.

The 3 remaining cases: DCCJ 327/2015, DCCJ 1616/2015 & DCCJ 4751/2014

65.The PTR on 22 July 2016 was adjourned due to the fact that in DCCJ 327/2015, DCCJ 1616/2015 & DCCJ 4751/2014, the trial bundles (each of them consisted of a few hundred pages) were only received very late and left the court and the defendant with in sufficient time to prepare for the hearing.

Latest status of DCCJ 327/2015, DCCJ 4751/2014 & DCCJ 1616/2015

66.For the record, the plaintiff in DCCJ 327/2015 has recently filed a notice of acceptance of sanctioned payment on 15 August 2016 and therefore the trial scheduled to commence on 2 September 2016, in so far as that case is concerned, has been vacated.

67.Similarly, in DCCJ 4751/2014, the plaintiff in that case has also recently filed a notice of acceptance of sanctioned payment on 9 August 2016 and therefore the trial for that action has also been vacated.

68.Thus, to date, the only case from this batch of 5 which has not been settled is DCCJ 1616/2015.  Hence, there will be a trial commencing on 2 September 2016 for that case only.    

CONCLUSION

69.Based on the above, I find the PTR hearing on 22 July 2016 was adjourned solely as a result of MCAL’s failures in preparing for the trial bundles in time for the PTR.  In my view, if the plaintiffs were able to recover their costs for preparing and attending the PTR fixed on 22 July 2016 from the defendant, this would be most unfair to the defendant.  It would also be unfair to the legal aided claimants or to the DLA if the costs have to come out either of the common fund or the legal aid fund owe to the misconduct, delay and inaction on the part of the assigned solicitor.  In my judgment, those wasted costs should be borne by MCAL personally.

70.Having read the statement of costs submitted on behalf of the defendant and the statement of objection from MCAL and having heard submissions on the individual items from the parties, I would summarily assess the costs wasted due to the adjourned PTR on 22 July 2016 at HK$60,233, that amount would include the costs spent on the arguments on the wasted costs order on 3 August 2016. Such sum should be borne by MCAL personally and to be paid to the defendant forthwith.

71.I direct a copy of this decision to be sent to the DLA for his reference and consideration.

	( Andrew SY Li )
	District Judge

Mr Lai Man Chun Anthony and Mr Lau Kam Lun of M.C.A. Lai & Co, for the plaintiffs

Mr Stanley Ng, instructed by the Department of Justice, for the defendant