Lau Ka Lai v. Humana Medical Ltd t/a Health Care & Co

DCCJ 3186/2022

[2025] HKDC 1518

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3186 OF 2022

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BETWEEN

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DECISION

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A. Introduction

1.This decision is to be read together with my Decision handed down on 17 July 2025 (the “Main Decision”)[1]. Unless otherwise indicated, I continue to use the same definitions.

2.In paragraph 41 of the Main Decision, I made a costs order nisi that the Plaintiff shall pay the Defendant’s costs of the appeal, to be taxed if not agreed, with certificate for counsel.

3.There are now before me cross-applications to vary the costs order nisi:

(1) By letter[2] dated 28 July 2025, the Plaintiff applies to vary the costs order nisi such that there be no order as to costs of the appeal;

(2) Also by letter dated 28 July 2025, the Defendant applies to vary the costs order nisi to the effect that costs of the appeal should be summarily assessed in lieu of taxation. A statement of costs was lodged and served for this purpose.

4.I then gave directions for the parties to respond to these matters in writing. In particular, I gave the Plaintiff an opportunity to respond to both the Defendant’s application and to make objections to the statement of costs.

B. The Plaintiff’s variation application

5.I bear in mind that for interlocutory proceedings, there is no longer the prescribed rule that costs should follow the event; it is only an option (see O62 r3(2A) of the Rules of the District Court). I should also take into account the factors stated in O62 r5.

6.In the present case, I have held that the Plaintiff is to be regarded as the unsuccessful party in the appeal (paragraph 41 of the Main Decision). The Plaintiff advances 2 main reasons why (she says) it is appropriate for there to be no order as to costs of the appeal. I reject both of them.

7.First, she contends that she is in a “weaker position” than the Defendant, in that she has no resources to engage lawyers (or a “big team of lawyers” as the Defendant has done), and that she was only an ex-employee of the Defendant. In short, the Plaintiff says she is in a relatively vulnerable situation. I do not accept that this is a valid justification for not ordering her to bear the costs of the appeal. The appeal was brought by the Plaintiff in seeking to defend part of her own pleading. She lost before the learned Master, and she also substantially lost the appeal before me. It is only fair for her to bear the consequences of bringing an unsuccessful appeal.

8.For completeness, it is not for a litigant in person to say that he or she is ignorant in the law or the court procedures and then to use that as a reason to resist costs: 周順鏞 v 畢志荃 (unreported, HCA 4054/2003, 13 December 2005) at §§17-18.

9.Second, the Plaintiff contends that she was partially successful in the appeal, in that she managed to retain certain paragraphs of the ASOC that were initially struck out by the learned Master (see paragraph 38 of the Main Decision). But as I explained in the Main Decision, this was because I was prepared to be “generous” on the express premise that the Plaintiff would not be allowed to run any personal injuries claims at trial. I also maintain my view that the Plaintiff lost on the key issue (which is whether the PI Claims should be struck out, see paragraph 41 of the Main Decision). I therefore do not think it is appropriate to consider the Plaintiff to be partially successful in the appeal as a matter of overall substance.

10.A related argument is that the Plaintiff says she was compelled or forced to pursue the appeal because this was the only avenue to salvage her case and part of the pleading (and she was partially successful in that regard). This is rejected for the same reason; there can be no hiding from the fact she voluntarily brought the appeal and substantially lost.

11.Accordingly, I am of the view that it is appropriate to order the Plaintiff to pay the Defendant’s costs of the appeal.

C. Summary assessment

12.I am of the view that summary assessment is appropriate in the circumstances. The appeal is a discrete proceeding within the action, and it will save substantial time and costs for the Court and the parties to summarily assess costs as compared to a full taxation process.

13.At the hearing, after I explained to the Plaintiff how summary assessment would work, she indicated that she would not oppose the application. She nevertheless said that if I am minded to order summary assessment against her, she would require more than the usual 14 days (as prescribed in O62 r9B) to pay.

14.Considering the full circumstances of the case, I am of the view that I should allow the Plaintiff to pay within 3 months. Mr Li for the Plaintiff sensibly did not object to this.

D. Quantum and costs of the hearing on 2 Sept 2025

15.I accept the Plaintiff’s submission that since the appeal is a rehearing, much of the materials placed before the learned Master may be recycled. On this basis, and having considered the Defendant’s statement of costs, I am of the view that the stated costs are on the high side.

16.On a broad brush basis, I summarily assess the Defendant’s costs of the appeal (with certificate for counsel) at HK$90,000.

17.As to the costs of the hearing on 2 September 2025, I take the view that the Defendant is entitled to some costs, given that I dismissed the Plaintiff’s variation application (for there to be no order as to costs). At the hearing I have been provided with a separate statement concerning these costs, and I will summarily assess them at HK$25,000. The hearing concerns a straightforward costs application which should not require substantial time for preparation.

E. Conclusion

18.I therefore order that the costs order nisi dated 17 July 2025 be varied, such that the Plaintiff shall pay the Defendant’s costs of the appeal (including the hearing on 2 September 2025) with certificate for counsel, to be summarily assessed at HK$115,000, to be paid within 3 months.

19.Similar to the Main Decision, if it is necessary, the Plaintiff may approach my clerk to make an appointment with a Court interpreter for this Decision to be interpreted.

The plaintiff appeared in person

Mr Li Marco, instructed by Au Yeung, Chan & Ho, for the defendant