Ng Kwai Lan v. Leighton - Gammon Joint Venture

DCEC 1460/2018

[2019] HKDC 351

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1460 OF 2018

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DECISION ON COSTS

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Chronology of relevant events

1.By an order dated 7 September 2018, the employer (respondent) admitted liability shortly after the commencement of these employees’ compensation proceedings.

2.On 27 December 2018, Messrs. Hastings & Co, the employer’s solicitors, pursuant to O 22 r 8(2) of the Rules of the District Court (“RDC”), filed a “Notice of Sanctioned Payment” and made a sanctioned payment into court in settlement of the whole of the applicant’s claim in these proceedings.

3.On 7 January 2019, the employer filed a summons (“Summons”) pursuant to O 26, RDC, for leave to serve interrogatories on the applicant, requiring the applicant to confirm the total amount of the advance payment she had received.

4.On 8 January 2018, the applicant’s legally-aided solicitors, Cheng & Co, filed a “Notice of Acceptance of Sanctioned Payment”.  There is no dispute that, pursuant to O 22 r 20(1), RDC, the applicant is entitled to her costs “of the proceedings up to the date of serving notice of acceptance, unless the Court otherwise orders”.

5.Since the Summons to serve interrogatories has not yet been disposed of, the costs of the Summons remains at large.  The parties are unable to agree on the costs of the Summons, and I directed that the issue of the incidence of those costs be disposed of on paper.

Decision

6.After having considered the parties’ written submissions, I am of the view that the costs of the Summons should be paid by the respondent to the applicant for the reason that the Summons is not necessary.

7.Apart from stating in §4 of the affirmation in support of the Summons that the application “is to ascertain the net amount of compensation, the parties need to ascertain and agree the amount of advanced payment”, the respondent does not state why it requires the said information.  The respondent does not depose as to the reason why the evidence of advance payment is necessary “either for disposing fairly of the cause or matter, or for saving costs”: O 26, RDC. Neither have Hastings’ in their written submission been able to demonstrate why the evidence sought is necessary in the context of O 26.

8.Pertinently, by the time when the Summons was issued, the respondent had already made a sanctioned payment.  The respondent did not therefore require the evidence of advance payment to enable it to quantify the amount of the sanctioned payment it wanted to make.

9.Lastly, since the respondent, as the employer of the applicant, (as evidenced by the documents in the Bundle of Correspondence prepared by Hastings) was the party which made the advance payments, it should have in possession of the evidence of all the advance payments it had made to the applicant.

10.For the reasons above, I order that the respondent do pay the costs of the Summons, and that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

11.Lastly, I wish to draw to the solicitors’ attention that, in line with the underlying objectives of the Civil Justice Reform (CJR), written submissions lodged for paper disposal should be short and succinct.  The parties’ lengthy submissions do not appear to have followed the spirit of the CJR.

Cheng & Co, assigned by the Director of Legal Aid, for the applicant

Hastings & Co for the respondent