Lam Cheuk Ting v. Ho Kwan Yiu

HCA 2127/2019

[2020] HKCFI 3065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2127 OF 2019

________________________

BETWEEN

________________________

Before:  Hon Au-Yeung J in Chambers

Date of Hearing:  17 November 2020

Date of Decision:  17 November 2020

________________________

D E C I S I O N

________________________

1.There are two summonses before me: (1) the defendant’s summons for leave to appeal out of time against the Master’s costs order; and (2) the plaintiff’s summons for discovery which has been dealt with, and the only remaining issue is costs.

Defendant’s summons for leave to appeal out of time

2.The plaintiff sues the defendant in defamation. He made two requests for further and better particulars as the defence failed to comply with Order 82 rule 3(2) in that the pleas failed to distinguish between facts and opinion.  After two rounds of answers by letter, the plaintiff took out the summons for further and better particulars. 

3.On 7 October 2020, Master Man gave an order giving leave to the plaintiff to file and serve a request for further and better particulars of the defence and giving leave to the defendant to file and serve an answer to the plaintiff’s request.  The learned Master also ordered the defendant to pay costs of the summons to the plaintiff to be summarily assessed on paper.  On 22 October 2020, Master Man summarily assessed the costs at $160,000.

4.The defendant served the notice of appeal on 3 November 2020.  He took out the present summons on 5 November 2020 for extension of time to appeal and for stay of execution of the costs order pending appeal.  The defendant’s intended appeal is against the incidence of liability for costs, not the quantum of costs.

5.The time to appeal started to run from 7 October 2020.  The defendant was out of time, when he filed the summons, by 13 days. It plainly arose out of misconception of the law and that in itself is not a valid reason for granting extension of time. 

6.Although the explanation for the delay is not acceptable, that does not preclude the court’s discretion to extend time. However, the court has to consider the chances of success of the appeal if extension of time is granted and whether or not the other party is prejudiced.

7.An appeal against an order for costs should not be allowed unless it can be shown that the order made by the Master in the exercise of her discretion was unreasonable or erroneous in law, namely that she failed to take into account proper matters or took into account matters that should not have been taken into account: Paul Y - ITC Construction Limited v Kin Shing Company Limited, [1999] 1 HKC 511, at 515A to C, Sakhrani J.

8.There is no appeal by the defendant against the Master’s substantive order regarding further and better particulars.  That order was made after full arguments by counsel on both sides.  The costs order was not an order nisi. 

9.I am told by Mr Ma representing the defendant today that the substance of what now appears in paragraphs 29 to 32 of his written submission was presented before the Master.  So plainly, it was an order for costs to follow the event and the defendant had drawn what he thought were material considerations to the Master’s attention.  I can see no error in principle disclosed.

10.As regards the matters relied on by Mr Ma in paragraphs 29 to 32 of his written submission, I will not set them out in full, but basically the defendant’s complaint is that the plaintiff had asked him three rounds of further and better particulars and the wrong procedure of proceeding by summons, instead of a letter, was used.  But what is indisputable is that by the time the summons was issued, the defendant still had not complied in full with Order 82 rule 3(2).  The summons was contested.  The Master heard the submissions and decided against the defendant.  I can see no reason for disturbing her exercise of discretion. 

11.I therefore dismiss the defendant’s application for extension of time for leave to appeal.  It follows that it is not necessary to deal with his application for stay of execution pending appeal.

Plaintiff’s Summons for Discovery

12.The summons has been dealt with by the defendant providing documents.  This, in fact, is the call-over hearing.  No argument was involved.  There was no need to involve counsel on a simple matter asking the defendant to produce documents referred to in his further and better particulars.  The costs claimed by the plaintiff are excessive. 

Costs

13.I now deal with the questions of costs.  On the defendant’s summons, there is no complexity in the summons.  Issues of costs should be kept as simple as possible.  A lot of matters are a re-run of arguments before the Master.  In terms of costs, I make an order for the defendant to pay the plaintiff’s costs in the amount of $25,000.

14.Insofar as the plaintiff’s summons is concerned, again, there is no complexity and no need to involve counsel.  Costs are summarily assessed and granted in the sum of $1,080.

(Discussion re extension of time)

15.I think I should formally give leave to the plaintiff to withdraw the discovery summons and give the plaintiff 14 days’ time for the reply.

Ms Chow Hang Tung, instructed by Ho, Tse, Wai & Partners, for the Plaintiff

Mr Jimmy Ma and Mr Keith Tam, instructed by K.C. Ho & Fong, for the Defendant