Read the full judgment text of CACV 189/2017 on BabelCite. This Court of Appeal judgment was delivered on 25 January 2018 before Lam VP, Cheung JA.
Civil procedure – costs – sanctioned payment regime – Order 22 of the Rules of the District Court – out-of-time acceptance of sanctioned payment – death of elderly plaintiff before trial – whether unjust to apply normal costs rule – elderly lady injured when concrete spalling fell from ceiling in elderly home – both tibial shaft fractures – wheelchair dependent – uncontested liability – $380,000 sanctioned payment below reasonable range – whether the approach under Rule 23 should guide discretion under Rule 15(3) – whether the death of an elderly plaintiff is a contingency inherent in litigation – whether it is unjust to deprive defendant of costs protection – appellate review of costs discretion – appeal allowed – costs order set aside – whether Rule 23 framework applies to out-of-time acceptance – court endorses SG v Hewitt approach but recognises need for broad assessment of offer's reasonableness in absence of merits determination – court rejects 'special circumstances' test in favour of 'unjust' benchmark under Rule 23(5) – contingencies inherent in litigation including death of elderly plaintiff cannot normally justify departure from normal rule – Matthews v Metal Improvements followed – SG v Hewitt distinguished on its facts – $380,000 offer found plainly outside serious injury range of $510,000 to $692,000 from Wong Man Kin v Golden Wheel – reasonable for plaintiff to reject offer in July 2015 – costs incurred after sanctioned payment could not have been avoided – defendant ordered to pay costs of action up to date of acceptance plus costs of appeal and of application for leave in HCMP 535/2017 – costs to be taxed if not agreed
Legal issues: Applicability of Rule 23 approach to out-of-time acceptance of sanctioned payment · Whether the death of an elderly plaintiff constitutes injustice warranting departure from the normal costs rule · Reasonableness of the sanctioned payment and its impact on the costs order
Outcome: Appeal allowed; the order on costs made by the Deputy District Judge set aside
Cited by 4 cases · Cites 1 case