Cheung, Joseph Wai Leuk v. Chan Kwok Ping and Others

HCPI 264/2012

[2020] HKCFI 2546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 264 OF 2012

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BETWEEN

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Before:  The Honourable Mr Justice Bharwaney in Chambers

Date of Decision:  28 September 2020

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D E C I S I O N

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1.This is a decision by way of paper disposal.

2.I set out below the order of Deputy High Court Judge  Simon  Leung dated 22 May 2019:

“BY CONSENT, IT IS ORDERED that:

1. The Plaintiff’s appeal against paragraph 1 of Master Leong’s Order dated 6^th June 2014 striking out the Plaintiff’s claim against the 2^nd Defendant be allowed;

2. Leave be granted to the Plaintiff to amend the name of the 2^nd Defendant to “Yim Tse Kin sued on his own behalf and on behalf of all other members of Wing Chun Ip Chun Academy”;

3. The Plaintiff’s appeal against Master Leong’s order dated 6^th June 2014 dismissing the Plaintiff’s application for specific discovery be withdrawn;

4. The order made by Master Leong dated 5^th August 2014 on the summary assessment of costs be discharged;

5. Ip Chun’s appeal against Master Leong’s order dated 22^nd September 2014 joining him as the 4^th Defendant herein be allowed;

6. The Plaintiff’s Summons filed herein on 18^th November 2014 be withdrawn;

7. The parties shall jointly write to the Court and report on their positions on the issues of costs in relation to paragraph 1 to 6 hereinabove and the related costs in the court below and the hearing before the Honourable Mr. Justice Bharwaney on 27^th November 2014 (including issues that can be agreed and cannot be agreed) within 21 days from the date of this Order;

8. The issues of costs which cannot be agreed as mentioned in paragraph 7 shall be determined by the Court on paper without oral hearing;

9. The parties shall file and serve their respective written submissions on the issues of costs which cannot be agreed as mentioned in paragraph 7 within 35 days from paragraph 7 above;

10. The parties shall file their submissions in reply within 14 days from paragraph 9 above;

11. There be liberty to apply;

12. Costs of this application be in the cause; and

13. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.”

3.On 12 May 2020, Madam Justice Marlene Ng made the following directions:

“1.  The order dated 22/5/19 by DHCJ Leung (copy enclosed) (“Order”) refers.

2.  DHCJ Leung has ceased his deputyship earlier this year.

3.  The court notes that to date no agreement has been reached in respect of paras.7-10 of the Order on (a) the issue of costs in relation to paras.1-6 of the Order, (b) the related costs in the court below, and (b) the costs of the hearing before Bharwaney J on 27/11/2014 (collectively, “Outstanding Costs Issue”)

4.  The Outstanding Costs Issue shall be reserved for determination by Bharwaney J.

5.  Within 7 days from the date of these written directions, the solicitors for the 1^st, 2^nd and 3^rd defendants and Ip Chun shall write to Bharwaney J with copy to the plaintiff to invite Bharwaney J to give directions on paper for determination of the Outstanding Costs Issue.

6.  The parties to the Outstanding Costs Issue shall address all further submissions to Bharwaney J.”

4.On 23 July 2020, I gave the following directions:

“I refer to:

1. the order dated 22/05/19 by DHCJ Leung, in particular to paras 7-10 thereof;

2. the directions of Marlene Ng J dated 12/05/20; and

3. the letter from M/s Rowget W Young & Co dated 19/05/20.

I hereby direct the parties to write to me jointly within 14 days:

a. informing me whether or not any outstanding cost issues have been agreed and, if so, what outstanding cost issues have been agreed;

b. setting out their joint proposed directions for the exchange of written submissions (not exceeding 10 pages) and reply submissions (not exceeding 10 pages) on the outstanding cost issues which have not been agreed.

After receipt of the same I shall deal with this matter on paper.”

5.The letter from M/s Rowget W Young & Co dated 19 May 2020 enclosed their letter dated 21 September 2019 to the clerk of DHCJ Leung in relation to the outstanding costs issues.

6.Since my direction dated 23 July 2020 I have received the following correspondence from the parties:

(a)  Letter dated 30 July 2020 from M/s Burke & Co;

(b)  Letter dated 31 July 2020 M/s Rowget W Young & Co;

(c)  Letter dated 6 August 2020 M/s Burke & Co;

(d)  Letter dated 7 August 2020 M/s Rowget W Young & Co; and

(e)  Letter dated 11 August 2020 M/s Burke & Co.

7.My directions have not been complied with. M/s Burke & Co contend that any agreement reached between M/s Rowget W Young & Co and the Director of Legal Aid is not binding on the plaintiff.  Directions for exchange of written submissions have not been agreed.

8.The plaintiff was formerly on legal aid and represented by M/s Burke & Co, and a series of other law firms, but is now acting in person.  He suffered injury during a martial arts lesson, which the plaintiff claimed was an assault/battery by the 1^st defendant who was a teaching instructor there.

9.On 6 June 2014, Master Leong granted, inter alia, the following order (“6/6/14 Order”):

“(a) in respect of the summons filed on 25 March 2014, the plaintiff’s claim against the 2^nd and 3^rd defendants be struck out;

(b) the 1^st defendant was directed to file an affidavit to make discovery of certain documents;

(c) the other discovery requests in the plaintiff’s summons filed on 17 April 2014 (i.e. paras 1 and 3-5) be dismissed;

(d) costs of and occasioned by the 2^nd and 3^rd defendants’ summons dated 25/3/14 and costs of the claim against the 2^nd and 3^rd defendants be to the 2^nd and 3^rd defendants;

(e) there be no order as to costs for the plaintiff’s application for specific discovery,

(f) costs of and occasioned by paras.1 and 3-5 of the plaintiff’s summons dated 17 April 2014 be to the 1^st, 2^nd and 3^rd defendants,

(g) there be counsel’s certificate for the hearing on 20 April 2014.”

10.On 19 June 2014, the plaintiff filed notice of appeal against the orders that (a) plaintiff’s claim against the 2^nd defendant (not the 3^rd defendant) be struck out; (b) the plaintiff’s application to amend the name of the 2^nd defendant be dismissed; and (c) the plaintiff’s application for discovery against the 1^st and 2^nd defendants of various documents be dismissed.

11.On 5 August 2014, Master Leong summarily assessed the costs pursuant to the 6/6/14 Order.

12.On 22 September 2014, Master Leong allowed Ip Chun to be joined as the 4^th defendant and granted a costs order nisi that the costs of and occasioned by §2 of the corresponding summons be to the plaintiff.

13.On 30 September 2014, Ip Chun appealed against the order of Master Leong dated 22 September 2014.

14.On 24 October 2014, Master Leong ordered that time for the plaintiff to file statement of costs for summary assessment of costs under the order dated 22 September 2014 be extended to 14 days after the decision on the appeal in §13 above.

15.On 17 November 2014, the plaintiff applied by summons for leave to amend the writ of summons to appoint representatives to act for the 2^nd defendant.  The summons was filed on 18 November 2014.

16.The 2 appeals in §§10 and 13 above, and the plaintiff’s summons in §15 came before me for hearing on 27 November 2014.  The hearing took over an hour.  In the end, I directed the parties to apply to the court within 3 weeks on agreed directions to be made regarding the 2 appeals and the summons, fixed a CLR to be heard on 22 April 2015, directed that a joint orthopaedic expert report be prepared before the next hearing, and I reserved costs.

17.On 12 November 2015, Master Leong granted an extension of time until 3 December 2015 for the parties to revert to me on agreed directions in relation to the 2 appeals and summons, and granted case management directions for witness statements, joint orthopaedic expert report, revised statement of damages, answer as well as other directions.

18.On 24 February 2016,  Dr Arthur Chiang (for the defendants) and Dr Fu Wai Kee (for the plaintiff) compiled their joint orthopaedic expert report.

19.On 19 March 2016,  Master Leong granted a further extension of time until 30 May 2016 for the parties to revert to me on agreed directions in relation to the 2 appeals and summons, granted an extension of time to carry out the case management directions granted on 12 November 2015 and made other directions.

20.On 29 July 2016, and again on 15 September 2016, I granted further extensions of time.

21.On 13 October 2016, the legal aid certificate for the plaintiff was discharged.

22.At the hearing on 22 May 2019, DHCJ Leung directed the parties to liaise on a proposal for psychiatric expert opinion within 8 weeks, and directed the parties to provide a set of documents to the court relevant to the court’s consideration on whether or not to allow psychiatric expert evidence.

23.A reasoned decision by DHCJ Leung was handed down on 29 May 2019 that the CLR should not be adjourned despite the plaintiff’s claim that he was not fit to attend court hearing by reason of his psychiatric condition.

24.On 22 May 2019, DHCJ Leung made a separate consent order which is set out in §2 above.

25.I was seized of the 2 appeals and the plaintiff’s summons which came before me for hearing on 27 November 2014.  Thereafter, there was no further hearing, and no hearing or argument before DHCJ Leung, before the consent order dated 22 May 2019 was made.  A significant aspect of these outstanding costs issues concerned the hearing on 27 November 2014 before me.  In the meantime, DHCJ Leung had ceased his deputyship.  As the only judge who has been involved in these historical matters (i.e. the 2 appeals and the plaintiff’s summons) that led to the costs order, Madam Justice Marlene Ng rightly directed that I should determine the issue of costs under p§7-10 of the consent order of 22 May 2019.

26.As I stated in §7 above, my directions of 23 July 2020 have not been complied with. M/s Burke & Co contend that any agreement reached between M/s Rowget W Young & Co and the Director of Legal Aid is not binding on the plaintiff. Directions for exchange of written submissions have not been agreed.

27.I need to determine the appropriate order as to costs in respect of 6 matters:

(1)  The Plaintiff’s appeal against paragraph 1 of Master Leong’s Order dated 6^th June 2014 striking out the Plaintiff’s claim against the 2^nd Defendant be allowed;

(2)  Leave be granted to the Plaintiff to amend the name of the 2^nd Defendant to “Yim Tse Kin sued on his own behalf and on behalf of all other members of Wing Chun Ip Chun Academy”;

(3)  The Plaintiff’s appeal against Master Leong’s order dated 6^th June 2014 dismissing the Plaintiff’s application for specific discovery be withdrawn;

(4)  The order made by Master Leong dated 5^th August 2014 on the summary assessment of costs be discharged;

(5)  Ip Chun’s appeal against Master Leong’s order dated 22^nd September 2014 joining him as the 4^th Defendant herein be allowed;

(6)  The Plaintiff’s Summons filed herein on 18^th November 2014 be withdrawn.

The Plaintiff’s appeal against paragraph 1 of Master Leong’s Order dated 6^th June 2014 striking out the Plaintiff’s claim against the 2^nd Defendant be allowed

28.As the plaintiff’s appeal against paragraph 1 of Master Leong’s Order dated 6 June 2014 striking out the plaintiff’s claim against the 2^nd defendant was allowed, I make a costs order nisi that the 2^nd defendant pays the costs of the appeal, and the costs below, to the plaintiff, including the costs of 70% of the hearing on 27 November 2014, such costs to be summarily assessed on party and party basis, if not agreed, by myself or the Judge in charge of the Personal Injuries List, and paid forthwith.

Leave be granted to the Plaintiff to amend the name of the 2^nd Defendant to “Yim Tse Kin sued on his own behalf and on behalf of all other members of Wing Chun Ip Chun Academy”

29.I make a costs order nisi that the costs of the amendment of the name of the 2^nd defendant, including the costs incurred in identifying Mr Yim Tse Kin, be costs in the cause.

The Plaintiff’s appeal against Master Leong’s order dated 6^th June 2014 dismissing the Plaintiff’s application for specific discovery be withdrawn

30.As the plaintiff’s appeal against Master Leong’s dismissal of the plaintiff’s application for specific discovery was withdrawn, I make a costs order nisi that the plaintiff pays the 2^nd defendant the costs of and occasioned by the appeal, such costs to be summarily assessed on party and party basis, if not agreed, by myself or the Judge in charge of the Personal Injuries List, and paid forthwith.

The order made by Master Leong dated 5^th August 2014 on the summary assessment of costs be discharged

31.I make a costs order nisi that the costs incurred on the summary assessment made by Master Leong on 5 August 2014 be paid by the 2^nd defendant to the plaintiff, such costs to be summarily assessed on party and party basis, if not agreed, by myself or the Judge in charge of the Personal Injuries List, and paid forthwith.

Ip Chun’s appeal against Master Leong’s order dated 22^nd September 2014 joining him as the 4^th Defendant herein be allowed

32.As Ip Chun’s appeal against Master Leong’s order dated 22 September 2014 joining him as the 4^th Defendant herein was allowed, I make a costs order nisi that the plaintiff pays the costs of the appeal, and the costs below, to Ip Chun, including the costs of 20% of the hearing on 27 November 2014, such costs to be summarily assessed on party and party basis, if not agreed, by myself or the Judge in charge of the Personal Injuries List, and paid forthwith.

The Plaintiff’s Summons filed herein on 18^th November 2014 be withdrawn

33.I make a costs order nisi that the costs of the plaintiff’s summons filed herein on 18^th November 2014 that was withdrawn, be costs in the cause.

Balance of the costs of the hearing on 27 November 2014

34.10% of the hearing on 27 November 2014 was spent on case management issues. I make a costs order nisi that these costs be costs in the cause.

Taxation of the plaintiff’s own costs

35.Finally, I make a costs order nisi, in respect of the costs that were incurred during the period when the plaintiff was receiving legal aid, that the plaintiff’s own costs in respect of the aforesaid hearings and steps taken in the proceedings be taxed pursuant to the Legal Aid Regulations.

Burke & Co., for the plaintiff

Rowdget W Young & Co., for the 1^st and 2^nd defendants