Elijah Saatori v. Raffles Medical Group (Hong Kong) Ltd

HCPI 1114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1114 OF 2006

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D E C I S I O N

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INTRODUCTION

1.The trial of this action was scheduled to commence on 2 September 2016, with 10 days reserved.

2.On 26 August 2016, the court dismissed the plaintiff’s application by a summons filed on 23 August 2016 seeking leave to rely on the evidence of a “board game” expert in this action.  The court did so on the ground of the lateness of the application and also because the court was not satisfied that the proposed evidence was of sufficient probative value such that it would likely be of real assistance to the determination of the issues in the action.

3.On 1 September 2016, the court dismissed the plaintiff’s application by a summons filed on 30 August 2016 seeking to adjourn the trial of the action on the ground that his legal aid certificate had been revoked on 29 August 2016.  The court also lifted the stay of proceedings consequent upon the revocation of the plaintiff’s legal aid certificate and/or his fresh application for legal aid to prosecute an appeal against the court’s order made on 26 August 2016.

4.On 2 September 2016, the plaintiff did not turn up in court for the trial, because he had apparently collapsed in his home earlier in that morning and been taken to Evangel Hospital for treatment.  The court made an order directing the plaintiff to make himself available for a medical examination by a neurologist appointed by the defendant for the purpose of determining his fitness to attend court for the trial of this action, and the trial was to be adjourned to 11:00 am on 5 September 2016.

5.On 5 September 2016, the plaintiff did not turn up in court.  The court received a report prepared by Dr Brian Choa, Specialist in Neurology appointed by the defendant, dated 3 September 2016.  Dr Choa, having medically examined the plaintiff, expressed the view that the plaintiff should be fit to attend court by 7 September 2016.  Accordingly, the court further adjourned the trial to 7 September 2016.

6.On 7 September 2016, the plaintiff again did not turn up in court.  He however produced a medical certificate from Dr Cheng to the effect that he was medically unfit to attend trial and represent himself until 16 September 2016, and another medical certificate from Dr Chan to the effect that he required active psychiatric treatment.  The court was faced with conflicting medical opinions regarding the plaintiff’s fitness to attend court.  Bearing in mind that the court should not conduct a mini-trial on the issue of the plaintiff’s fitness to attend the trial, which would require the parties’ medical experts to testify and be cross-examined, the court reluctantly adjourned the trial to new dates to be fixed, subject to the condition that the plaintiff was to (i) pay to the defendant the sum of HK$438,491.60 in respect of outstanding taxed costs owing to the defendant, and (ii) provide security, by paying the sum of HK$1,200,000 into court, in respect of a number of costs orders previously made in favour of the defendant which had not yet been taxed as well as the defendant’s costs thrown away by the adjournment of the trial, such payments to be made within 21 days of the date of the order, failing which the plaintiff’s action herein against the defendant would stand dismissed without any further order of the court.

7.By a summons dated 14 September 2016 and filed on 19 September 2016 (“the Summons”), the plaintiff makes a variety of applications, which I shall deal with below.

8.There are two preliminary observations which I should mention.  First, the plaintiff, both in his affirmations in support of the Summons and in his oral submissions made at the hearing on of the Summons on 23 September 2016, made numerous, serious, allegations against many different parties.  It is not necessary for the court to repeat all those allegations in this decision, many of which are either not relevant or not necessary to the plaintiff’s applications.  Neither would it have been possible for the court to resolve those allegations on the materials before it.  The court will, however, refer to some of them which are necessary for the disposition of the plaintiff’s applications.

9.Second, Mr Raymond Leung SC (for the defendant) referred the court to Order 35, rule 2(2) of the Rules of the High Court, which provides that an application to set aside any judgment, order or verdict obtained where one party does not appear at the trial should be made within 7 days after the trial.  Mr Leung submitted that the plaintiff’s Summons seeking to set aside the court’s orders made on 5 or 7 September 2016 was prima facie out of time.  Nevertheless, Mr Leung also indicated at the hearing of the plaintiff’s Summons that the defendant was prepared to deal with the plaintiff’s applications on the merits.  In view of the fact that the plaintiff is a litigant in person and has recently spent some time in hospital, the court will consider the substance of his applications and disregard the time bar under Order 35, rule 2(2).

10.The relevant background relating to the plaintiff’s applications can be seen from the court’s written decisions dated 26 August 2016, 2 September 2016, 5 September 2016 and 7 September 2016 respectively, and will not be repeated here.

Paragraph 1 of the Summons

11.Under paragraph 1 of the Summons, the plaintiff applies to stay or set aside the court’s order made on 1 September 2016 lifting the stay of proceedings referred to in paragraph 3 above.

12.At the hearing of the Summons, the plaintiff accepted that a decision whether to lift the stay involved an exercise of discretion by the court and indicated that he would not press for an order under this paragraph of the Summons.  In any event, for the reasons given in the court’s decision dated 2 September 2016, the court concluded that the trial should not be adjourned merely because the plaintiff did not have legal aid and would have to conduct the trial in person.  That being the position, it was clear that the stay of proceedings ought to be lifted.  Finally, it is to be observed that the trial has in fact now been adjourned to new dates to be fixed, and the plaintiff’s legal aid appeal has, I am told, been fixed to be heard on 21 October 2016. Accordingly, the plaintiff’s application to stay or set aside the order lifting the stay of proceedings is, as submitted by Mr Leung, otiose or academic.

Paragraph 2 of the Summons

13.Under paragraph 2 of the Summons, the plaintiff applies to stay or set aside the court’s order made on 5 September 2016 directing the trial to commence on 7 September 2016, arguing that Dr Choa’s report dated 3 September 2016 should have been disregarded.  At the hearing, the plaintiff complained about the authenticity of the report, as well as the contents of the report. The plaintiff referred the court to a transcript of his medical examination by Dr Choa, and made various accusations against Dr Choa.

14.As pointed out by Mr Leung, the fact of the matter is that the court first adjourned the trial on 5 September 2016 to 7 September 2016, and then on 7 September 2016 the court adjourned the trial generally to new dates to be fixed, giving the plaintiff the benefit of the doubt in view of the two medical certificates produced by him.  The plaintiff’s attack on Dr Choa is thus quite unnecessary.  The court should make it clear, moreover, that it is by no means satisfied that the plaintiff’s accusations against Dr Choa are justified, but it is not necessary for the court to delve further into those accusations. 

15.Under this paragraph of the Summons, the plaintiff also argues that because he has “inadvertently” revealed to the court the fact that the defendant had made a sanctioned payment of HK$1,000,000 into court (which the plaintiff says he has since been advised by his previous solicitors, Burke & Co, to be a breach of “protocol”), I should recuse myself.  The defendant does not accept that the disclosure was “inadvertent” as alleged by the plaintiff.  Irrespective of whether the disclosure was inadvertent or deliberate, I would not be affected by knowledge of the sanctioned payment.

16.In Garratt v Saxby [2004] 1 WLR 2152, at paragraph 20, Dyson LJ (as he then was) stated as follows:-

“It is for the judge to decide in each case whether the disclosure of a Pt 36 offer or payment makes a fair trial impossible and whether justice demands that he recuse himself. But judges should not be too ready to reach such a conclusion; the delay and extra cost occasioned by a recusal may be very considerable. Moreover, when exercising their discretion,judges should remind themselves that they ought to have little difficulty in analysing and deciding the issues in the case on their merits without being influenced by their knowledge of the amount of the Pt 36 offer or payment.”

17.Further, while the disclosure of the fact that a defendant has made a substantial settlement offer to the plaintiff, or paid a substantial sum into court, may arguably be said to be prejudicial to the defendant (if it is regarded as some form of admission of liability), I do not consider that such disclosure would be prejudicial to the plaintiff, or should cause me to recuse myself in the absence of any complaint by the defendant.

18.Another point raised by the plaintiff under this paragraph of the Summons is that I should recuse myself because I am bias against him.  As far as I can see, the plaintiff’s complaint is based, ultimately, on the fact that I have made various rulings or decisions against him.  I do not see how the fact that a judge has made interlocutory rulings or decisions against a party should mean that he has to recuse himself from any further proceedings in the action on the ground of bias or apparent bias.

Paragraphs 3 and 4 of the Summons

19.Under paragraphs 3 and 4 of the Summons, the plaintiff applies to stay or set aside the condition imposed by the court for adjourning the trial on 7 September 2016.  As earlier mentioned, the condition requires the plaintiff to pay to the defendant the sum of HK$438,491.60 in respect of outstanding taxed costs and pay the sum of HK$1,2000,000 into court as security for various costs orders previously made in favour of the defendant which have not yet been taxed as well as the defendant’s costs thrown away by the adjournment of the trial within 21 days of the date of the order.

20.A number of points have been raised by the plaintiff in support of his application under this paragraph of the Summons.

21.First, the plaintiff argues that the effect of the condition will be to stifle his claim.  I shall return to this argument later in this decision.

22.Second, the plaintiff argues that a claimant in a personal injury action cannot be ordered to give security for costs.  The plaintiff seems to treat the condition imposed by the court as if it were an order requiring him to give security for costs under Order 23 of the Rules of the High Court.  This was not the case.  The present order for security for costs was imposed as a condition for the court’s granting an adjournment of the trial under Order 35, rule 3 of the Rules of the High Court, which states that:-

“The judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit.”

23.Order 35, rule 3 must be read in the context of the two preceding rules.  Rule 1 makes provision for the failure of one or both parties to appear when the trial of an action is called on, and empowers the court to strike out the action where neither party appears or proceed with the trial of an action where one party does not appear.  Rule 2 provides that a judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the court on terms.  It is clear that rule 3 is intended to give the court the power to adjourn a trial where one party fails to appear, instead of proceeding with the trial in the absence of that party, together with a broad discretion to impose terms or conditions for granting the adjournment in order to serve the interests of justice.  In deciding on what, if any, terms or conditions, ought to be imposed for adjourning the trial, the court must take into account not only the position of the plaintiff but also that of the defendant.  As mentioned in the court’s previous decision dated 2 September 2016, the defendant would suffer substantial prejudice as a result of an adjournment of the trial.  The condition imposed by the court on 7 September 2016 was intended to address part of the prejudice or injustice which would be suffered by the defendant as a result of the adjournment of the trial.

24.There are two other points raised by the plaintiff which I should deal with at this juncture.

(1)  The plaintiff says that the costs that he has been ordered, or may be held liable, to pay to the defendant are or would be covered by legal aid.  However, the plaintiff was first granted legal aid on or about 28 January 2011, and his legal aid certificate was revoked on 29 August 2016.  Under the condition imposed by the court for granting the adjournment of the trial –

(a)  The plaintiff is required to pay to the defendant the sum of HK$438,491.60 in respect of outstanding taxed costs owing to the defendant referred to in items 1, 2, 3, 4 and 10 in the Schedule attached to the court’s decision dated 7 September 2016 (“the Schedule”). The relevant costs orders were all made prior to the grant of legal aid to the plaintiff and thus the defendant would have no recourse to the Director of Legal Aid for the costs that the plaintiff has been adjudged liable to pay to the defendant in respect of those costs orders.

(b)  The plaintiff is also required to give security for costs, by paying the sum of HK$1.2 million into court, in respect of (i) the untaxed costs which the plaintiff has previously been ordered to pay to the defendant in this action and in CACV 184/2009 referred to in items 5, 6, 7, 8, 9 and 11 in the Schedule, and (ii) the defendant’s costs thrown away by the adjournment of the trial.  The costs orders referred to in items 5, 6, 7 and 8 in the Schedule were made at a time when the plaintiff was under legal aid, while the costs orders referred to in items 9 and 11 in the Schedule were made after the plaintiff’s legal aid certificate had been revoked.  In addition, the plaintiff’s liability for the defendant’s costs thrown away by the adjournment of the trial would not be covered by legal aid.  Assuming that the defendant can look to the Director of Legal Aid to recover the costs referred to in items 5, 6, 7 and 8 in the Schedule, it would seem that the defendant has no recourse to the Director of Legal Aid for the costs referred to in items 9 and 11 in the Schedule as well as the costs thrown away by the adjournment of the trial.  The total amount claimed by the defendant in respect of such costs already exceeds the amount of the security (ie HK$1.2 million) which the plaintiff is required to pay into court.

(2)   The plaintiff says that the defendant’s costs for which he is required to give security have not been taxed or ascertained and are grossly inflated.  On the basis that the security required to be given by the plaintiff should only cover the costs referred to in items 9 and 11 in the Schedule as well as the costs thrown away by the adjournment of the trial, the amounts claimed by the defendant in respect of such costs do not seem to me to be exceptional or inflated.

25.Third, the plaintiff argues that, by reference to a previous judgment given by Barma J (as he then was) in HCSD 31/2009 on 17 June 2010, the defendant is prohibited from seeking to recover the outstanding costs until after the conclusion of the trial in this action.  HCSD 31/2009 related to a statutory demand dated 23 October 2009 served by the defendant on the plaintiff in respect of the sum of HK$261,318.10 arising out of three costs orders made against the plaintiff in favour of the defendant in this action (being items 1, 2 and 3 in the Schedule).  Barma J considered the plaintiff’s claim in this action to be a cross-claim which would appear to have (or might have) some substance, and it was possible that the amount of the claim would exceed the amount of the debts on which the statutory demand was based.  Accordingly, the learned Judge set aside the statutory demand, applying the well established principle that where the debtor asserts a cross-claim in good faith on substantial grounds, which exceeds the amount of the debt, the statutory demand ought to be set aside (see paragraphs 13 to 15 of Barma J’s judgment).

26.The issue before Barma J is completely different from the situation in which the court finds itself now.  The court is not dealing with any statutory demand for payment of any debt served on the plaintiff by the defendant, but whether the trial of this action should be adjourned and, if so, on what terms or conditions.  The latter involves an exercise of discretion which, as mentioned above, the court has to take into account not just the plaintiff’s position but also that of the defendant.

27.Fourth, by way of concession to the defendant, the plaintiff says that, if necessary, he is prepared to offer his shares in ZION as security for the costs which he is required to pay to the defendant or into court under the aforesaid condition.  The defendant submits that the plaintiff’s shares in his company are improper and/or insufficient as security.  There is no evidence before the court on the current value of the ZION shares held by the plaintiff. Furthermore, ZION is a private company.  The plaintiff’s shares in it cannot readily be converted into cash.  For these reasons, the court does not consider the plaintiff’s shares in ZION to be an acceptable form of security.

28.Fifth, the plaintiff argues that he has a strong, meritorious, claim against the defendant.  Without hearing the evidence in the case, the court does not consider that it is possible for it to reach any clear view on the merits of the plaintiff’s claim against the defendant.

29.I now return to the issue of stifling.  In answer to this point raised by the plaintiff, Mr Leung has referred the court to the following matters:-

(1)  The plaintiff has not filed any affidavit of means.

(2)  The plaintiff (or his company) received about HK$377,971 from the arbitration with Wah Tong, in addition to a subsequent settlement sum of HK$1,700,000 from Wah Tong.  It is not known how much has been spent and how much remains in the hands of the plaintiff or its company.

(3)  At the hearing on 1 September 2016, when Mr Leung (in the context of his argument that the stay of proceedings mentioned above ought to be lifted and the defendant would suffer prejudice if the trial was adjourned) submitted that the plaintiff had told the court that he was impecunious, the plaintiff interrupted Mr Leung and said, “I would like to object to that.  I never said I was impecunious.  That’s not true.”  To be fair to plaintiff, he also said, in answer to a subsequent question from the court, that he, his family and his company were all “deeply in debt”.

(4)  The plaintiff said at that hearing that he could probably (in his words, “99 per cent”) borrow HK$3.5 to 5 million “given enough time”.  Later on, he reiterated, in unequivocal terms, that he could “99 per cent” guarantee that he could raise HK$3.5 to 5 million from “church millionaires” in the event that his legal aid appeal should fail.

30.Notwithstanding the plaintiff’s failure to provide full information regarding his means, the court is prepared, exceptionally, to give the plaintiff the benefit of the doubt and grant an extension of time to 7 November 2016 for him to comply with the condition for adjourning the trial of this action.  This will give the plaintiff 2 full months to raise approximately HK$1.6 million which would only be a fraction of what the plaintiff confidently informed the court he could raise in 2 months’ time.  It should be clearly understood that, as far as this court is concerned, this is the final indulgence that it is prepared to grant to the plaintiff.

disposition

31.In all, the court is not satisfied that any sufficient ground has been shown for staying or setting aside the various orders made by the court on 1, 2, 5 and 7 September 2016.  Save to the extent mentioned in paragraph 30 above, the Summons is dismissed with costs to the defendant, to be taxed if not agreed.

The plaintiff acting in person and present

Mr Raymond Leung, SC and Mr Eric Tsoi, instructed by Robertsons, for the defendant