Li Suk Yee v. Parknshop (HK) Ltd
Read the full judgment text of DCPI 3001/2019 on BabelCite. This District Court judgment was delivered on 24 November 2023.
1. This is an appeal brought by the defendant for a decision on costs made by a master. It is in the context of a plaintiff who had applied to accept the sanctioned payment made by the defendant out of time.
Cited by 2 cases · Cites 2 cases
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DCPI 3001/2019 [2023] HKDC 1670 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 3001 OF 2019 ---------------------------
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--------------------------------------------- DECISION --------------------------------------------- INTRODUCTION 1.This is an appeal brought by the defendant for a decision on costs made by a master. It is in the context of a plaintiff who had applied to accept the sanctioned payment made by the defendant out of time. BACKGROUND Background to the appeal 2.The plaintiff was employed by the defendant as a part-time store assistant to work at ParknShop Superstore at Metro City Phase II (“the Supermarket”). The plaintiff alleged that she had fallen from a ladder (“the Ladder”) when working at the Supermarket on 28 September 2016 (“the Accident”) under the following circumstances as pleaded in the statement of claim filed on 27 July 2020 (“the SOC”):-
3.Almost a year before the filing of the SOC and about a month before the plaintiff issued the writ of summons in the present proceedings on 9 September 2019, the defendant’s insurer had produced the closed circuit television (“CCTV”) footage capturing the Accident to the plaintiff via her solicitors. That was on 5 August 2019. The CCTV footage shows that the plaintiff fell from the Ladder, not because she was hit by the shopping cart (“the Cart”) pushed by the customer but rather she had turned around her body when descending from the steps and her buttock hit the side of the Cart which happened to be passing through the aisle at the time. 4.On 7 July 2022, the plaintiff took out a summons (“the Summons”) to seek leave to accept a sanctioned payment of HK$5,000 made by the defendant on 25 April 2022 (“the Sanctioned Payment”). The application was made out of time. In the Summons, the plaintiff also asked the court to order the defendant to pay the plaintiff “the costs of this action up to 28 days after the Sanctioned Payment was made (ie 23 May 2022)”. 5.At the hearing of the Summons before the master (“the Master”) on 9 March 2023, the plaintiff’s counsel accepted that the Cart did not actually move forward and hit the plaintiff. Hence, the defendant argued that the plaintiff’s pleaded case was doomed to fail. 6.At the end of the hearing, the Master gave leave to the plaintiff to accept the Sanctioned Payment out of time. However, the Master at the same time ordered that the plaintiff be entitled to the costs of the action “up to 25 November 2020”, which was the date when the CCTV footage was “disclosed to the plaintiff by way of list of documents”[1]. The Master further ordered that the plaintiff to pay the defendant’s costs of the action after that date, including the costs of and occasioned by the Summons, with certificate for counsel. The Master also ordered the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations (“the Order”). 7.The defendant now appeals against §2 of the Order, which was confined to the costs the Master ordered the defendant to pay to the plaintiff up to the date when the CCTV footage was formally disclosed under the defendant’s list of documents on 25 November 2020. The CCTV footage v the plaintiff’s pleaded case 8.The CCTV footage captured how the plaintiff was injured. The exact circumstances which the plaintiff sustained injuries were explained in §7 of the affidavit of the defendant’s handling solicitor Mr Au Ying Yin Matthew (“Au’s Affidavit”). The plaintiff did not dispute this version of events at the hearing before the Master. They were set out in Au’s Affidavit as follows:-
9.As said, the CCTV footage was provided to the plaintiff’s solicitors by the defendant’s insurer on 5 August 2019, which was slightly over a month before the writ (with the general endorsement of claim) of this case was issued. However, the plaintiff’s pleaded case was not formulated until some 10 months later when the SOC was served on the defendant. 10.The same CCTV footage was also provided to the joint medical experts (“the JME”), namely, Dr Ho Ching Lun Henry (appointed by the defendant) and Dr Chan Yu Sing (appointed by the plaintiff) for their viewing before the joint examination took place on 15 January 2021. 11.Rather unusual for cases where JME are appointed, both experts managed to come to the same finding after viewing the CCTV footage, ie the Cart did not hit the ladder or the plaintiff. This is how they have described the Accident in the joint medical report dated 1 November 2021 (“the JMR”) after watching the CCTV footage:-
12.Notwithstanding the fact that the plaintiff’s solicitors had been provided with the CCTV footage by the defendant’s insurer on 5 August 2019, the plaintiff pleaded in the SOC (about a year later) that the Cart “collided with the Ladder and/or the Plaintiff from behind”, and insisted in her witness statement filed for the purpose of the present proceedings (which was dated 22 January 2021 but was only filed and exchanged about 6 months later on 16 July 2021) that she fell from the Ladder because the Cart had either hit the Ladder and her:-
13.Further, in the plaintiff’s affirmation filed on 5 October 2022 in support of leave to accept the Sanctioned Payment out of time, the plaintiff stated that:-
14.At the hearing before the Master, Mr Wong, the plaintiff’s assigned counsel (who also represented the plaintiff in the present appeal), accepted that the Cart did not hit the Ladder:-
15.It should be noted here that narrowing of the passageway had not been agreed nor pleaded by the defendant in its defence. Nor had this issue ever been pleaded by the plaintiff in the SOC as one of the reasons or causes of why she had met with the Accident. It was only raised by the plaintiff’s counsel for the first time during the hearing before the Master. 16.The defendant made the Sanctioned Payment on 25 April 2022. In the letter accompanying the notice, the defendant had specifically informed the plaintiff that her claim was doomed to fail “in light of the CCTV footage showing that the shopping cart did not collide with the ladder or your client as alleged”. 17.The plaintiff rejected the Sanctioned Payment by letter on the next day, but at the same time was willing, on a without prejudice save as to costs basis, to accept the HK$5,000, provided that the defendant pays “the costs of the entire proceedings”. 18.The defendant did not respond to the plaintiff’s “offer” above. 19.About 2½ months later, on 7 July 2022, without any prior notice or explanation, the plaintiff issued the Summons to seek leave to accept the Sanctioned Payment out of time. Reasoning of the Master 20.Reading from the transcript, it is obvious that the following matters had been taken into account and accepted by the Master before the decision on costs was reached:-
21.As said, the plaintiff’s alternative case at the hearing before the Master was that the aisle was partially occupied by the stacked up goods which had significantly narrowed the passageway. As a result, the plaintiff hit her buttock on the Cart while descending from the Ladder. In my view, the Master has rightly rejected this as a completely new argument made up by the plaintiff for the purpose of the hearing only. 22.In the appeal, the defendant does not dispute §1 of the Order in which the court gave leave to the plaintiff to accept the Sanctioned Payment made by the defendant on 25 April 2022 out of time. The defendant only disputes §2 of the Order where the Master made the “cut-off date” for the defendant to bear the costs of the action up to 25 November 2020, the date when the CCTV footage was formally disclosed by the defendant. General principles on appeal on costs 23.The relevant legal principles for appeal from a master to a judge in chambers are set out at §§58/1/2 to 58/1/6 of Vol 1 of Hong Kong Civil Procedures 2023 (“the HKCP”). 24.Order 58/1/6 of the RDC states that:-
25.The following cases have been cited by the plaintiff’s counsel in his written submissions. 26.In Hoddle v CCF Construction Ltd [1992] 2 All ER 550, at 550h – 551b, Morland J set out the approach that should be adopted by a judge in chambers on an appeal limited to an order for costs made by a master who had, effectively, the conduct of the litigation before him:-
27.Mr Wong submits that this approach has been followed by the courts in Hong Kong:-
The defendant’s grounds of appeal 28.Mr Ho for the defendant has made it clear in his submissions that the defendant’s appeal is only confined to the Master’s ruling that the defendant should pay the plaintiff’s costs of this action up to 25 November 2020. 29.Reading from the decision, the only reason that the Master gave when fixing the “cut-off date” on 25 November 2020 was based on the fact that the CCTV footage was formally disclosed to the plaintiff under the defendant’s list of documents on that day. No other reason was given or other factor had been taken into account by the Master in this regard. 30.Mr Ho submits that the Master was plainly wrong in fixing the “cut-off date” on 25 November 2020 for the following reasons:-
31.Mr Ho also raised the point that the plaintiff has unilaterally included 4 letters issued by her solicitors to the defendant’s insurer in the appeal bundle (“the Non-Agreed Letters”)[10]. The Non-Agreed Letters were not presented in the hearing before the Master. The defendant’s solicitors have drawn the attention of the plaintiff to O 58 r 1(4) of the RDC, reminding the plaintiff that it would be inappropriate for her to adduce further evidence in the present appeal. 32.The defendant relies on §58/1/3 of HKCP by stating that the no further evidence, other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made, may be received at the hearing of an appeal under O 58 of the RDC, except on “special ground”. The threshold to adduce further evidence in this context is the same as that under O 9 r 10(2) of the RDC, namely that the conditions under Ladd v Marshall conditions:-
33.I agree with Mr Ho that the Non-Agreed Letters clearly do not satisfy conditions (a) and (b) of the Ladd v Marshall test as:-
34.Hence, I rule that the Non-Agreed Letters should not be taken into account for the purpose of the appeal eventhough this appeal is by way of a hearing de novo. Findings of the Court 35.Generally speaking and as a matter of principle, I would be most reluctant to disturb a master’s decision on costs, as it is an exercise of discretion on his/her part. However, as the authorities cited by the parties have suggested, if a master has taken into account of matters he or she ought not to have taken or failed to take into account of matters he or she ought to take into account, then it may justify the judge on appeal to intervene. In other words, when making a decision on costs, a master has to decide the matter judicially and reasonably. 36.In this case, it is clear from reading the decision that the Master was fully aware that the defendant’s insurer had provided the plaintiff with the CCTV footage under the cover of a letter on 5 August 2019, which was well before the issue of the writ (and general endorsement of claim) by the plaintiff on 9 September 2019. 37.The plaintiff had never complained at the hearing before the Master that the quality of the CCTV footage was so low that her solicitors or assigned counsel could not work out what actually took place during the Accident by watching it. 38.The JME certainly had no difficulty in reaching the same conclusion that the Cart did not hit the Ladder after watching the CCTV footage when they prepared the JMR. 39.In my view, it is obvious that the CCTV footage was provided by the defendant’s insurer to the plaintiff’s solicitors with the purpose for them to decide whether their client’s allegations about the Accident could be true or not. This was done as part of the pre-action protocol specified under §§14-23 of Practice Direction 18.1 (“PD 18.1”). Those rules, inter alia, require the parties to engage in 3 months of constructive communication and mutual disclosure of information and documents with respect to issues of liability and quantum after initial exchange of letters: see §19 of PD 18.1. 40.In my judgment, this was exactly what the defendant had tried to do in this case. The pre-action protocol encouraged parties to disclose such documents in order to encourage early settlement or disposal of action without the plaintiff issuing proceedings or parties going to trial in appropriate cases. This is in line with the underlying objectives of the CJR. In my view, had the plaintiff or her legal aid assigned solicitor and counsel bothered to study the contents of the CCTV footage carefully, I have no doubt that they would have come to the same conclusions as the JME did. 41.Although the pre-action protocol has no statutory effects, it will have costs consequences if the parties do not adhere to them. I find this important part (ie Part B) of PD 18.1 has often been neglected (and sometimes totally ignored) by practitioners, particularly in personal injuries claims in the District Court. In quite a lot of cases I have come across in the past few years, I often found the parties not adhering to the pre-action protocol or only paying lip service to it. Often no constructive reply was given by the proposed defendant after the letter of demand was issued by the proposed plaintiff. Sometimes when a constructive reply was given and request for information and documents was made by the proposed defendant, the proposed plaintiff would simply ignore them. Worse still, when discovery in relation to issues of liability or quantum was made by a defendant, for example like a CCTV footage which indisputably shows how the accident occurred, they are simply ignored and the proposed plaintiff would simply go ahead with issuing the proceedings, ignoring the possible dire consequences on costs. 42.Putting the above rules in the context of this case, in my view, it is crucial for the plaintiff and her legal advisers to make an early decision after viewing the CCTV footage of whether to issue the proceedings in this case or not. In my judgment, it lies ill in their mouth to say that they had only known about how the Accident occurred when the CCTV footage was disclosed to them “formally” under the defendant’s list of documents. This ignored the crucial step taken by the defendant during the pre-action protocol stage when they disclosed the same CCTV footage to the plaintiff through its insurer. 43.In my view, once the Master accepted that the CCTV footage played a vital role in whether the plaintiff was able to prove her pleaded case or not, then the crucial date must be when it was first disclosed to the plaintiff and not when it was formally discovered under the list of documents. 44.Hence, the “cut-off date” in this case in my view should have been when the CCTV footage was first disclosed to the plaintiff by the defendant’s insurer on 5 August 2019 and not when it was formally discovered under the defendant’s list of documents on 22 November 2021. Of course, reasonable time (say a few weeks) should be given to the plaintiff’s solicitors to study the footage as well as to take instructions both from the legally aided plaintiff and the Director of Legal Aid before they make a final decision of whether they should proceed with the intended common law action or not. Had they done that in this case, I have scant doubt that the writ would not be issued and the case would not be proceeded with – at least not based on the pleaded case of the plaintiff as stated in the SOC which the Master in my view has rightly found to have no merits at all. 45.In the aforestated premises, regrettably, I find myself in disagreement with the Master on this matter. I find that the Master had failed to take into account of the very important fact that the same CCTV footage had been disclosed to the plaintiff over a month before the issue of the writ and this should be the “cut-off date” in which the plaintiff should bear the costs of the defendant in this action. CONCLUSION 46.Based on the above, I would allow the defendant’s appeal. 47.I would therefore set aside §2 of the Order and substitute that with the following:-
48.There will be no change to the rest of the Order. 49.For the present appeal, I order the costs to be borne by the plaintiff with certificate for counsel, such costs to be taxed if not agreed. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.
Mr Meyrick Wong, assigned by the Director of Legal Aid and instructed by Messrs Or & Partners, for the plaintiff Mr Leon Ho instructed by Messrs Mayer Brown, for the defendant | ||||||||||||||||||||
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