Law Yin Pok Bosco v. Dr. Chan Yee Shing also known as Dr. Chan Yee Shing Alvin

HCPI 369/2010

[2018] HKCFI 2604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 369 OF 2010

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Before:  The Honourable Mr Justice Bharwaney in Chambers

Dates of Written Submissions:  19 and 22 November 2018

Date of Written Submissions in Reply:  23 November 2018

Date of Decision:  23 November 2018

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D E C I S I O N

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1.I have before me an application by summons, taken out by the defendant on 27 July 2018, to amend his earlier summons dated 22 May 2017 as per the draft amended summons annexed to this application. I have perused the written submissions presented to me by the parties, including the defendant’s submissions dated 23 November 2018. The application is fixed to be heard by me on 26 November 2018, with 2 hours reserved. Having considered the written submissions, I am able to make my decision on this application without requiring any further oral submissions from the parties. I vacate the hearing fixed on 26 November 2018.

2.I dismiss the defendant’s application. The issues that remain to be determined, from that issues that had been raised by the defendant in the summons dated 22 May 2017, have been made clear by my clerk’s letter to the parties dated 22 January 2018 which I reproduce below:

“I refer to the correspondence exchanged between the parties on the outstanding costs issues in HCPI 369 of 2010, including the outstanding costs issues in HCPI 369 of 2010 that affected the parents of the infant plaintiff prior to the de-consolidation of the claims. The claims of the parents after de-consolidation have been and are being dealt by Deputy High Court Judge Marlene Ng. I am not concerned with them.

The Defendant agrees with the Plaintiff's list of the costs orders previously made in the proceedings that was attached to the letter from Messrs. Ip Kwan & Co dated 6 January 2018.

The outstanding costs issues in HCPI 369 of 2010 that are before me have been neatly summarised in the Plaintiff's note dated 16 January 2018 under 5 headings:

A. Defendant’s Summons of 22 May 2017 to Vary Deputy High Court Judge Seagroatt’s Order of 20 November 2012

B. The Reserved Costs Orders

C. Costs Order Nisi of 7 November 2012

D. Miscellaneous Matter at 14 September 2012 Pre-Trial Review

E. Plaintiff’s Summons of 22 November 2017

The parties are in agreement that these are the outstanding costs matters before me and have further clarified that the costs order nisi in respect of the claim for the father's care raised under paragraph 6 of the defendant's summons dated 22 May 2017 is also in issue as are the matters raised in the 2 letters dated 23 November 2017 and 27 November 2017, which fall under Issue E set out above.

It appears to me the most substantial issue that requires my determination is Issue A. The determination of Issue A will impact on Issue C and the costs order nisi in respect of the claim for the father's care raised under paragraph 6 of the defendant's summons dated 22 May 2017.

My Directions

Under Issue A, the question is whether I should follow the Judgment of Mr Recorder Benjamin Yu SC in HCPI 601 of 2008 that the sanctioned offer/payment regime under Order 22 does not apply to cases involving infants and persons under disability or whether I should decide that the sanctioned offer/payment regime under Order 22 does apply to cases involving infants and persons under disability, as the English courts have done (see Matthews v Metal Improvements Co Inc [2007] EWCA Civ 215 and SG v Hewitt [2012] EWCA Civ 1053 at paragraphs 26 to 41).

This issue turns on the construction of the relevant provisions of Order 22 and Order 80. Unless I am persuaded otherwise, I do not need affidavit evidence from the parties to determine this issue and I am not minded to grant leave to the parties to file affidavit evidence on this issue.

However, if I were to conclude that the sanctioned offer/payment regime under Order 22 does apply to cases involving infants and persons under disability, I would need affidavit evidence on the circumstances of the case that I ought to take account of before making any orders under Order 22, rule 23.

Would the parties prefer a two part hearing, the first part dealing with the construction of the relevant provisions of Order 22 and Order 80? Only if I conclude that the sanctioned offer/payment regime under Order 22 does apply to cases involving infants and persons under disability, would I then give directions for affidavit evidence to be adduced and for a second hearing to take place on the orders that I ought to make under Order 22, rule 23.

The other outstanding issues are relatively simpler and, unless persuaded otherwise, I will not grant leave to the parties to file affidavit evidence or further written submissions. And I will determine the same on paper on the materials which I have been provided with.

Directions Hearing on 24 January 2018

I hereby vacate the directions hearing on 24 January 2018. I will give directions on the further conduct of this matter after I hear from the parties, within 7 days, on the matters I have raised above.”

3.It is clear from this letter that I did not need to deal with the claims of the parents in HCPI 62 of 2011 after the de-consolidation of the 2 actions.  §§8-11 of the summons dated 22 May 2017, dealing with the claims of the parents, had already fallen away by 22 January 2018.  There is no need to take any further steps to amend the summons of 22 May 2017 by deleting §§8-11 of that summons and by amending §15 of that summons by deleting from it the reference to HCPI 62 of 2011.  Indeed, Deputy High Court Judge Marlene Ng has already adjudicated upon the matters raised in these paragraphs in her decision given on 30 April 2018.

4.This is not the first time that the defendant has filed unnecessary applications to amend the summons dated 22 May 2017. On 27 October 2017, Deputy High Court Judge Marlene Ng directed that the defendant’s unnecessary amendment summons be expunged from the court file and explained to the defendant, in §7 of her clerk’s letter dated 27 October 2017, that there was simply no need to make any amendment:

“7. The defendant referred to an amended summons re-filed on 9/6/17. It is correct that no leave has been granted for amendment of the defendant’s summons filed on 22/5/17. What happened was that on 6/6/17 I granted leave for the defendant to withdraw the application [that] the plaintiffs in HCPI62/2011 [do] pay costs of the defendant’s strike out application of 7/11/14 on High Court scale and on indemnity basis to be taxed if not agreed and for such plaintiffs to pay enhanced interest at 10% above judgment rate per annum on such costs in paras.11-12 of the defendant’s summons filed on 22/5/17. By granting such leave to withdraw, that aspect of the defendant’s application was thereby finally disposed of. This was evident from paragraph 5(1) of the sealed copy of the order dated 6/6/17. There is simply no need to amend the defendant’s summons filed on 22/5/17. To illustrate this matter by taking a logical step further, if the court grants leave for withdrawal of the whole application made by a summons, surely the sealed copy order reflecting such fact is sufficient, and the applicant will not be required to re-file an amended summons crossing out its whole contents when the matter is already at an end.”

5.In the same vein, the matters raised in §§1-3 of the summons dated 22 May 2017, dealing with the satisfaction of the awards made from funds paid into court and with the payment of interest, have fallen away.  There is no need to delete these 3 paragraphs, and to replace them with a new paragraph regarding the payment of interest to 19 May 2011.  The amount of interest to be paid up to that date has already been agreed by the parties and set out in the order of Deputy High Court Judge Marlene Ng dated 27 October 2017.

6.In the vein, the deletion of the claims for taxation of costs on an indemnity basis and for the payment of enhanced interest contained in §§4, 5 and 6 of the summons dated 22 May 2017 is unnecessary.  As is made clear by the marginal note reference to Order 22, r. 23 of the Rules of the High Court (“RHC”) in the summons dated 22 May 2017, these claims are premised upon the failure of the infant plaintiff to beat the sanctioned payments that have been made by the defendant into court, pursuant to Order 22 of the RHC.  Indeed, as is clear from my clerk’s letter dated 22 January 2018, it appeared to me then that the most substantial issue that required my determination was whether or not I ought to vary the costs order that Deputy High Court Judge Seagroatt made on 20 November 2012 on the ground that the award made was less than the sanctioned payments in court and, specifically, whether I ought to follow the English authorities rather than the judgment of Mr Recorder Benjamin Yu SC in Law Ping Leung by Siu Siu Wa, his wife and next friend v. Ng Sze Pong HCPI 601 of 2008.

7.In response to my clerk’s letter of 22 January 2018, the defendant’s solicitors wrote to my clerk on 30 January 2018 as follows:

“…

3. The Defendant’s position is that the wording of the relevant provisions in Hong Kong are clear and, therefore, the stringent consequences of failing to beat a sanctioned payment set out in O.22 r.23 do not apply in cases involving minors because the Court’s leave is always required before a sanctioned payment can be accepted.

4. The wording of the relevant provisions in the UK is not the same and there is, therefore, a lacuna for proceedings governed by O.80 under the present rules, as observed by Recorder Benjamin Yu SC in HCPI 601 of 2008.

5. The Defendant submits, however, that nevertheless the Court in the fair and just exercise of its wider discretion as to costs under O.62 should take substantial account of the fact that a Defendant has made early and plainly generous sanctioned payments which the Plaintiff failed to meet at the trial. The Defendant also relies upon other particular circumstances of this case as relevant matters which the Court should take into account in exercising its discretion under O.62 r.5 RHC.

…”

8.The marginal note in the summons dated 22 May 2017 did not make any reference to Order 65,  r.5 of the RHC,  nor to Order 65,  rr.3 and 7 of the RHC, nor to sections 48 and 49 of the High Court Ordinance, which now appear in the draft amended summons.  It is unnecessary to amend the summons in order to rely on these provisions to support the application to vary the costs order of Deputy High Court Judge Seagroatt made on 20 November 2012.  Even if a failure to refer to these provisions in the marginal note of the summons dated 22 May 2017 was a bar to reliance on these provisions at the hearing of that summons,  which I am not persuaded it is,  I would permit the defendant to make submissions based on those provisions, de bene esse, at the hearing of the application now fixed to be heard on 23 January 2019, and, if I found that those submissions had merit, I would permit the defendant to rely on these provisions notwithstanding that they did not appear in the summons dated 22 May 2017.

9.There is no need to amend the summons by including a new §3 to the effect that the plaintiff should recover no costs, or interest thereon, in relation to the period after 19 May 2011.  If I am persuaded that I ought to vary the costs order of Deputy High Court Judge Seagroatt made on 20 November 2012 and if I were to order the plaintiff to pay the defendant’s costs from 19 May 2011, it must necessarily follow that the plaintiff would recover no costs or interest thereon for the period after 19 May 2011.  Insofar as this is presented as an alternative claim to the claim that the plaintiff ought to pay the defendant’s costs from 19 May 2011, it is within my discretionary power to make such an order, i.e. to order that there be no order as to costs between the parties after 19 May 2011, even without this amendment, when I deal with the application to vary the costs order of Deputy High Court Judge Seagroatt made on 20 November 2012.

10.Finally, it is unnecessary to amend the summons dated 22 May 2017 to include a new §5 that certain costs orders made by Deputy High Court Judge Seagroatt ought to be drawn up and perfected.  That disputed matter has already been identified in my clerk’s letter dated 22 January 2018 as one of the other matters that I need to adjudicate upon, and in relation to which substantial correspondence has been exchanged between the parties.

11.The parties have made other submissions which I have not dealt with in this decision.  I have considered those submissions.  I do not find them to be directly relevant to exercise of my discretion whether or not to grant leave to amend.  Even if marginally relevant, they have not impacted on the exercise of my discretion in this matter.  However, insofar as they may affect the merits of the substantive application, I do not preclude the parties from repeating those submissions, or some of them, at the hearing before me on 23 January 2019.

12.For these reasons, I dismiss the plaintiff’s application for leave to amend the summons dated 22 May 2017 as per the draft amended summons annexed to the defendant’s summons dated 26 July 2018.

13.I turn to deal with the costs of the application.  The application to amend the summons dated 22 May 2017 does not raise any issue of complexity as would warrant instructing counsel to pursue or to resist the application.  However, this is an exceptional case.  Given the amount of belligerence that has been generated by this case over the course of the last 8 years, with almost every application made, whether it be over a small matter or a major issue, being argued by senior counsel, I am minded to make a costs order nisi that the costs of the summons to amend the summons dated 22 May 2017 be paid by the defendant to the plaintiff with certificate for counsel;  and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Ms Alice Mok SC, instructed by Ip, Kwan & Co, for the plaintiff

Mr Adrian Huggins QC, SC, instructed by Howse Williams Bowers, for the defendant