Elio Marc Lucien Cascarino By His Father and Next Friend Damien Peter Cascarino v. Dr Lau Kenneth Chi Kin and Another

HCPI 70/2024

[2026] HKCFI 5830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 70 OF 2024

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DECISION

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1.After hearing the plaintiff and the 2^nd defendant, this court allowed the latter’s application for leave to issue third party proceedings against the Hospital Authority.  The plaintiff and the 2^nd defendant are in dispute in respect of the costs of and occasioned by the application.

BACKGROUND

2.The background was set out in this court’s decision handed down on 13 April 2026 ([2026] HKCFI 1574) (“the Decision”).  This court continues to adopt the same definitions and abbreviations[1] in the Decision for the present purpose.

3.In granting leave to issue the third party notice, this court also directed AH to take out a summons for third party directions pursuant to O16, r4 of the RHC.  Costs of and occasioned by the AH Summons were reserved pending determination of such application for third party directions.

4.Upon HA entering appearance, AH applied for third party directions by summons filed on 7 May 2026.  Amongst others, it sought leave to amend its points of claim against HA and to adduce further medical expert evidence in the third party proceedings.

5.The parties subsequently managed to agree on the third party directions, and disposed of the same by way of consent.  However, the Father and AH disagree in respect of the costs of and occasioned by the AH Summons, which this court has reserved to be decided as mentioned above.

6.Upon the parties’ joint letter dated 1 June 2026, this court directed in writing on 2 June 2026 for the disposal of such costs issue on paper upon receipt of the parties’ written submissions.

STANCE OF THE PARTIES

7.AH asks for costs of and occasioned by its summons against the Father.  The Father asks for the costs of the application and those of the hearing be reserved until after the conclusion of the third party proceedings.

8.Consistent with his neutral stance, Dr Lau seeks no order as to costs in respect of the AH Summons against him.  He also maintains the same stance as to the argument on costs of the AH Summons between the Father and AH now.

DISCUSSION

9.For the present purpose, the following background should perhaps be repeated.

10.The intention of AH to join HA as the third party in the present action arose only after the service of AH’s defence and subsequent to its consideration of the medical expert evidence and counsel advice available then.  AH needed leave of the court to do so.  Considering the Father’s preliminary observations, the master directed AH to file an application for leave to issue third party notice.  The master had the power to do: see O16 r2 RHC; Hong Kong Civil Procedure 2026 at §16/2/4.

11.What would normally have been an ex parte application by a defendant to the master for leave to issue third party proceedings, as so directed by the master, became an inter partes application before this court.  That afforded the Father with the opportunity to be heard on the leave application with affidavit evidence.

12.For the application for leave, the threshold is whether there is a prima facie case for bringing the matter within O16 r1(1) RHC.  If yes, the practice of the court in exercise of its discretion is to grant leave to issue the third party notice.  Whilst the master directed what is normally an ex parte application to be heard inter partes before the judge, enabling the Father to ventilate his contentions and evidence of prejudice at that juncture, the actual consideration by the court does not detract from the threshold and principles for the application for leave.  The HA at the receiving end of the third party proceedings would be heard on this, if so advised, at the third party direction stage.  Pursuant to O16, r4(3), the court may still be invited to set aside the leave or to dismiss the application for third party directions and terminate the third party proceedings on the third party notice, albeit served with leave.  This explains why this court reserved the costs of and occasioned by the AH Summons pending the hearing of the application for third party directions.

13.AH would have had to apply for leave in any event.  The Father has confirmed his intention not to join HA as a defendant.  He was entitled to do so.  The above explains how the Father was involved at the leave stage.  He was unsuccessful in his opposition.  In the circumstances, it is in my judgment fair to order that the Father and AH should respectively bear their own costs of and occasioned by the AH Summons between the Father and AH.  The same applies to the costs occasioned by the AH Summons up to the hearing.  This however is without prejudice to the right of AH to seek indemnity in the third party proceedings against HA in respect of the costs of AH in taking out the application.

14.It was the Father’s judgment call on whether or not to insist on opposing after all the relevant matters were placed before the parties.  The hearing could not be saved upon his insistence.  The dispute was determined against him at the leave stage. This court was prepared to defer considering the costs issue until after the determination of the application for third party directions when the HA would be heard for the first time.  However, the parties eventually resolved the application for third party directions by way of consent.  Therefore, the leave to issue the third party notice remains intact.  In the circumstances, costs of the hearing of the AH Summons is still expected to follow the event as a matter of norm.

15.In resisting liability to bear the costs of the hearing, the Father essentially argued that his argument at the hearing, albeit failing to oppose the leave, was not unreasonable.  Further, he argues that the court should further reserve the costs until after the conclusion of the third party proceedings.  Effectively, the Father seeks to hinge the incidence of liability for such costs upon the outcome of the third party proceedings between AH and HA.

16.I do not agree.

17.Had this been an ex parte application for leave to issue third party proceedings, it would have been reasonable to order such costs as a matter between AH and HA to be in the cause of the third party proceedings.  However, the question is the incidence of liability for the costs of unsuccessfully opposing AH’s inter partes application for leave to issue the third party notice in the hearing as a matter between the Father and AH.

18.The threshold and the satisfaction of that by AH for the limited purpose of enabling the court to exercise discretion to grant leave to issue third party proceedings do not indicate the merits and prospect of success of the third party claim of AH against HA.  That the third party claim may eventually fail on the merit, if so found by the court on the evidence, would not thereby prove that the Father was right in opposing leave to issue third party proceedings or that leave ought not to have been granted in the first place.  As such, there is no basis for hinging the incidence of liability for the costs of the hearing of the AH Summons as a matter between the Father and AH on the outcome of the third party proceedings.

19.The Father also refers to the amendment of the third party points of claim by AH in January 2026 after the hearing.  Further medical expert evidence has also been obtained by AH in April and May 2026 in support of its claim against HA.  These were embodied in the third party directions mentioned above.  The Father argues that had those amendments to the third party claim been made and the further medical expert evidence been adduced before the hearing in January 2026, he would not have opposed the AH Summons.

20.The fact was that this court came to the Decision on the basis of the contentions and materials placed by the parties before this court by the time of the hearing.  If any new materials have since come about, which reinforce the propriety of the exercise of the court’s discretion to grant leave to issue the third party proceedings, they do not serve as reference for justifying the reasonableness of the Father’s opposition, and hence the costs argument.  Had such new materials suggested material change in circumstances since the Decision, which impacts on the propriety of the grant or maintenance of the leave, one would have expected issue to be taken by any party at the third party direction stage.  As mentioned, the court upon hearing the parties has the power under O16, r4 to set aside the leave or to terminate the third party proceedings: see Hong Kong Civil Procedure 2026 Vol 1 at §16/4/4 (above).

21.The fact was also that notwithstanding these new development and materials since the hearing, the parties resolved the third party directions by way of consent, including that for leave to AH to amend the points claims and to adduce the further medical expert evidence as well as to serve the same on HA in the third party proceedings.  In the circumstances, there is no valid basis for reserving the issue of incidence of liability for the costs of the hearing of the AH Summons pending the outcome of the third party proceedings.

CONCLUSION AND ORDER

22.Hence the following order:

(1)  The Father and AH shall bear their own costs of and occasioned by the AH Summons up to (but not including) the hearing on 12 January 2026, without prejudice to the right of AH to seek indemnity against its costs of (not occasioned by) the AH Summons from HA in the third party proceedings;

(2)  The Father shall pay AH’s costs of the hearing of the AH Summons (for the avoidance of doubt, including written submissions) on 12 January 2026 in any event;

(3)  No order as to costs of the AH Summons for or against Dr Lau;

(4)  Costs shall be taxed, if not agreed, with certificate for counsel;

(5)  The Father’s own costs shall be taxed in accordance with the Legal Aid Regulations;

23.I make a nisi order that the Father shall pay AH’s costs of the joint letter dated 1 June 2026 and the present argument on costs in any event, to which (4) and (5) of the preceding paragraph apply.  For the avoidance of doubt, no order as to such costs is made for or against Dr Lau.  In the absence of application to vary within 14 days from the date hereof, this nisi costs order shall become absolute without further order.

Written submissions by Mr Ashok K. Sakhrani, instructed by Szwina Pang, Edward Li & Company, assigned by the Director of Legal Aid, for the plaintiff

Written submissions by Kennedys, for the 1^st defendant

Written submissions by Mr Samuel K.Y. Chan, instructed by Fred Kan & Co, for the 2^nd defendant

Johnson Stokes & Master, for the third party