Chan Yiu Man v. Ha Ching Man Maria

DCPI 349/2020

[2024] HKDC 461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 349 OF 2020

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BETWEEN

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DECISION ON COSTS

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INTRODUCTION

1.After I handed down my judgment for Assessment of Damages ([2024] HKDC 262)  on 16 February 2024, the defendant applied to vary the costs order nisi made in paragraph 56 of the said judgment with consequential interests on PSLA and the pre-trial loss of earnings and special damages, and the plaintiff applied for leave out of time (for only 13 days’ delay during which the parties had without-prejudice negotiation)  also to vary the costs order nisi.  I granted leave at the beginning of the hearing given that I did not see any prejudice caused by the delay, and that the delay was explicable with reference to the parties’ without prejudice negotiation.

2.The plaintiff failed to beat the sanctioned payment of HK$400,000 made by the defendant on 27 October 2021 (acceptable without the leave of the Court until close of 24 November 2021).  Ms Percy Yue, counsel for the plaintiff, has to accept that the plaintiff should pay the defendant’s costs of the Assessment of Damages after 24 November 2021, including all costs reserved on indemnity basis.  The only disputes before me are the following:-

(1)  In respect of the costs of the Assessment of Damages until 24 November 2021, whether they should be paid by the plaintiff as provided in the costs order nisi, or by the defendant; and

(2)  In respect of the sanctioned interest, whether it should be 2% or 3 % above the judgment rate.

COSTS OF THE ASSESSMENT OF DAMAGES UNTIL 24 NOVEMBER 2021

3.I agree with Ms Yue that the usual costs order is that the defendant should pay the plaintiff the costs of assessment of damages, even though the award is lower or even substantially lower than what the plaintiff claims.  The reason for this usual costs order is that the plaintiff would have to pursue the assessment in any event. 

4.In the present case, the plaintiff had failed to serve together with the Statement of Claim the documents in relation to his earnings as required by §66 of PD18.1, if not earlier in accordance with the pre-action protocol.  As a result, the defendant had to obtain a discovery order on 3 August 2020 (the very date of the interlocutory judgment on liability), resulting in the plaintiff’s 1^st affirmation filed on 3 September 2020 and the plaintiff’s 2^nd affirmation filed on 19 August 2021 in relation to his earnings.  The sanctioned payment was then made on 27 October 2021, about 2 months after the filing of the plaintiff’s 2^nd affirmation.  The plaintiff then filed his Re-Revised Statement of Damages on 2 August 2022, and the defendant filed the Answer thereto on 8 September 2022.

5.Mr Leon Ho, counsel for the defendant, submits that the plaintiff here had himself to blame.  Had he made the discovery earlier, the defendant would have made the sanctioned payment earlier, and thus, it lies ill in the plaintiff’s mouth to say that he had to pursue the Assessment of Damages in any event.  There is force in Mr Ho’s submissions.  However, from the plaintiff’s 1^st affirmation, it is clear that the plaintiff had already on 17 April 2020 and 22 May 2020 disclosed some documents in relation to his earnings, and that the plaintiff had difficulty in locating some documents, although the plaintiff indeed only disclosed some other documents upon the discovery order.  

6.In my view, the plaintiff is only partly to blame, because the defendant could still have made a sanctioned payment of an amount with a discount to reflect the incomplete discovery by the plaintiff.  In such circumstances, taking into account the gross inflation by the plaintiff, I think the more appropriate costs order for costs up to 24 November 2021 is no order as to costs.

SANCTIONED INTEREST

7.In determining the enhanced interest rate, I am entitled to consider the parties’ conduct of the litigation, among all the relevant circumstances.  I agree with Mr Ho that in the light of the gross inflation of the plaintiff’s claim and the plaintiff’s intentional exaggeration of his difficulty in sleeping and his suicidal tendency, 3% should be more appropriate.

ORDER

8.In the circumstances, I made the following order:- 

(1)  Subparagraph 55(2)-(4)  of the Judgment be varied and replaced by the following:-

“(2)  There be interest on PSLA from the date of the Writ of Summons until 24 November 2021 at 2% per annum.

(3)  There be interest at half of the prevailing judgment rate for pre-trial loss of earnings and special damages (including property damages)  from the date of the Accident until 24 November 2021.”

(2)  The costs order nisi in the third and fourth sentences of paragraph 56 of the Judgment be varied and replaced by the following:-

“(1)  There shall be no order as to costs of the Assessment of Damages up to and including 24 November 2021, including all costs reserved;

(2)  The plaintiff do pay the defendant’s costs of the Assessment of Damages after 24 November 2021, including all costs reserved on indemnity basis, to be taxed if not agreed;

(3)  The plaintiff do pay the defendant interest on costs at the enhanced interest rate of 3% per annum above the prevailing judgment rate from 25 November 2021 to 16 February 2024.”

(3)  The sum of HK$400,000 of the sanctioned payment made by the defendant on 27 October 20221, the sum of HK$200,000 of the sanctioned payment made by the defendant on 23 February 2022 and the sum of HK$100,000 of the sanctioned payment made by the defendant on 18 April 2023 together with the interest accrued thereon (if any)  be paid out of the Court in the following manner:-

(a)  A sum of HK$308,766.42 to the Director of Legal Aid; and

(b)  The remaining sum to the defendant forthwith through its solicitors, Messrs Sun Lawyers LLP.

9.I shall now hear submissions on costs of the parties’ respective applications.  

[submissions on costs]

10.Given that the plaintiff’s application for leave out of time was an application for court’s indulgence, and that both the plaintiff’s and the defendant’s applications only partially succeeded, and considering that the bulk of arguments was on the costs up to 24 November 2021, in the overall scheme of things, I think it is fair and appropriate to make no order as to costs in respect of the parties’ applications and today’s hearing.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Ms Percy Yue, instructed by B Mak & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Leon Ho, instructed by Sun Lawyers LLP, for the defendant