Lam Kai v. Ng Kwok Leung and Others

HCPI001460A/1999

HCPI 1460/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1460 OF 1999

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Coram : Hon Suffiad J in Chambers

Date of Hearing : 29 May 2002

Date of Decision : 19 June 2002

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D E C I S I O N

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1.I have already assessed the quantum in this matter and a written judgment was handed down on 28 March 2002.

2.There is before me a summons dated 18 May taken out by the 1st and 2nd defendants in this case asking primarily for the Final Judgment to be amended under the 'slip rule' to include mention of the 3rd defendant therein. It also asks for the cost order nisi in the assessment to be changed.

3.This matter arises in this way.

4.On 17 September 2001 a Consent Order agreed to by all the parties herein was made which provided for, inter alia, : -

(a) interlocutory judgment herein being entered in the plaintiff's favour against the 1st 2nd and 3rd defendants for 85% of the damages to be assessed, the plaintiff accepting 15% contributory negligence on his part;

(b) the 1st and 2nd defendants on the one part and the 3rd defendant on the other part each agreeing to be contribute half of the 85% of the assessed damages and costs to be payable to the plaintiff.

5.Thereafter, the hearing for assessment was set to start on 11 March 2002. On the morning of the first day of the assessment hearing, counsel for the 3rd defendant indicated to the court that an agreement had been reached between the 3rd defendant and the plaintiff and asked to be excused from the rest of the assessment hearing. The 1st and 2nd defendants were separately represented and there was no similar agreement between them and the plaintiff. There being no objection by any other parties to the proceedings, the request of the 3rd defendant to be excused was granted by me and thereafter the assessment hearing proceeded with only the plaintiff and the 1st and 2nd defendants being actively involved in it. None of the terms agreed to between the plaintiff and the 3rd defendant was disclosed to the court at that time. Not until the hearing of this application were such terms, agreed between the plaintiff and the 3rd defendant, made known to me.

6.The final amount of damages assessed by me after hearing all the evidence came to $3,036,012 and this figure took into account the 15% contributory negligence of the plaintiff as well as the interim payment previously made by the defendants. In the written judgment it was expressly stated that this figure is the amount of damages assessed "as against the 1st and 2nd defendants" due to the fact that I had been informed at the start of the assessment hearing that the plaintiff had agreed with the 3rd defendant the quantum in this case although that figure agreed between the plaintiff and the 3rd defendant as well as the terms of their agreement were not made known to me at that time.

7.Undoubtedly as a result of what was stated in that written judgment the Final Judgment drawn up was in terms "IT IS THIS DAY ADJUDGED that the 1st and 2nd defendants do pay the plaintiff a sum of HK$3,036,012.00" after reciting the fact that interlocutory judgment had been obtained against the 1st, 2nd and 3rd defendants for damages to be assessed.

8.For present purposes, all the parties herein are now agreed as to a proposed form of order ("the Proposed Order") in this matter which effectively states the amount of damages assessed to be HK$3,036,012 and the 1st and 2nd defendants do pay to the plaintiff 50% of the assessed damages pursuant to the Consent Order of 17 September 2001 while the 3rd defendant pays the plaintiff the amount agreed between them. Provision made for the costs of the assessment is also provided for and agreed by all the parties.

9.The dispute between the parties is that the 1st and 2nd defendants say that the Proposed Order, although agreed to by all the parties, cannot be made until and unless the amendment asked for by them has been effected in the Final Judgment. On the other hand, the 3rd defendant says that the Proposed Order can be made by the court as a supplemental order to the Final Judgment without any need to amend the Final Judgment. The plaintiff takes a neutral stance and says that they were always prepared to amend the Final Judgment to include mention of the 3rd defendant therein.

10.I take the view that the Proposed Order to which all the parties are agreed can be made and effected without the need to amend the Final Judgment for the reason that it was clear from the Interlocutory Judgment, the Consent Order of 17 September 2001 and from the written judgment in the assessment hearing that the 3rd defendant would not have been able to walk away scot free from these proceedings and that the 1st and 2nd defendants would only be effectively liable to pay half of the assessed amount to the plaintiff.

11.The fear of the 1st and 2nd defendants or their legal advisers that they would be asked to pay the full amount of the assessed damages was more apparent than real and the facts show that the plaintiff had never demanded from them the full sum of HK$3,036,012. Admittedly the letter of 12 April from the plaintiff's solicitors to the 3rd defendant's solicitors is unclear but the legal advisers of the 1st and 2nd defendants did not see fit to clarify such uncertainty with the plaintiff's solicitors. It was therefore not reasonable for them to assume they were being asked for the full amount of the assessed damages. Nor can the sealing of the Final Judgment amount per se to a demand by the plaintiff for the full amount assessed.

12.Having said that, whilst I take the view that the amendment to the Final Judgment is not strictly necessary in order to make or to effect the Proposed Order agreed by all the parties, I do accept that it would be neater and tidier to do so.

13.I further take the view that although this application was unnecessary, the plaintiff and the 3rd defendant must also shoulder some of the blame. Whilst it must be right that the amount agreed between them should not have been revealed to the court at the start of the assessment hearing so that the court would not be influenced by it, however, the court could have been appraised of the other terms of their agreement without the amount being revealed. A further possible course that could have been taken was that immediately or shortly after the quantum had been assessed by the court, either the plaintiff or the 3rd defendant or both jointly could have revealed their agreement to the court before the Final Judgment was drawn up and perfected in which case all these difficulties could have been avoided. None of that was done.

14.In the final analysis, all these matters would be reflected in the cost order relating to this application.

15.Accordingly I shall make the following orders:

(1) The payment clause of the Final Judgment be amended to include mention of the 3rd defendant;

(2) There will be a supplemental order to the Final Judgment in the following terms:

Damages having been assessed in the sum of HK$3,036,012 which sum is inclusive of interests and has taken into account the interim payment of HK$200,000 paid equally by the 1st and 2nd defendants on the one part and the 3rd defendant on the other part, pursuant to the Consent Order dated 17 September 2001, the 1st and 2nd defendants do pay 50% of the assessed sum of HK$3,036,012 (i.e. HK$1,518,006) in satisfaction of the plaintiff's claim herein. The 3rd defendant do pay the plaintiff the sum of HK$775,000 in satisfaction of the plaintiff's claim herein in accordance with the agreement entered into between the plaintiff and the 3rd defendant.

16.It is further agreed by the parties that the costs order nisi given in the assessment be amended as follows and which is the order I will make accordingly :

The plaintiff's costs of the assessment up to the first day of the assessment be paid equally by the 1st and 2nd defendants on the one part and the 3rd defendant on the other part and the plaintiff's costs of the assessment thereafter be paid by the 1st and 2nd defendants solely.

Cost of this application

17.For the reasons given above, the fairest order for costs of this application would be no order as to costs. There will accordingly be a costs order nisi to that effect.

Representation:

Mr Terry Wong, instructed by Messrs Hui & Lam, for the Plaintiff

Mr John Wright, instructed by Messrs Krishnan & Tsang, for the 1st and the 2nd Defendants

Mr Kumar Ramanathan, instructed by Messrs Hoosenally & Neo, for the 3rd Defendant