Pau Kwong Hon V.Choi Chi Ming

HCA005750/1981

BETWEEN:-

AND

BETWEEN:-

Consolidated by Order of Master Blackwell made on the 22nd day of October 1981.

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Coram: The Hon. Mr. Justice Jackson-Lipkin in Court.

Date: 28 June 1983 at 3.05 p.m.

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JUDGMENT

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1. This action concerns a collision between two of those most dangerous of road monsters, the motorised velocipede, on 24th August, 1978 on the exit road from the Cross Harbour Tunnel on the British Kowloon side, the road being, I believe, Hong Cheung Road.

2. There is no allegation that either driver was trying to be a Jehu or a Mr. Toad. It is an unhappy accident because both the drivers, young men, suffered severe injuries. The Plaintiff in the first of the consolidated actions has a permanent nerve palsy and is deprived of the use of his left arm. The injuries to the Plaintiff in the other action, whilst severe, will not in fact leave him with such a disability.

3. The doctors have made this comparative assessment: Some 60 odd per cent for Mr. CHOI, and some 5 per cent for Mr. PAU. Those figures are "impairment of the whole man", to use Dr. Wedderburn's phrase.

4. This was a day-time accident, 8.45 in the forenoon, with no adverse weather conditions and no adverse road surface.

5. The parties to whom I shall refer by their surnames, in view of the fact that there are two separate actions which have been consolidated, the first one being Mr. CHOI against Mr. PAU, No. 6003 of 1980, and the second one being Mr. PAU against Mr. CHOI, No. 5750 of 1981.

6. Mr. CHOI, as I have already indicated, suffered severe injuries. He must have been badly shaken up, and his evidence of what happened could not be described as a model of clarity.

7. Mr. PAU fared worse. He was rendered unconscious at the moment of impact, and he therefore is not in a position to help me.

8. The only wholly independent witness, Police Constable WONG, arrived too late on the scene to be able to assist me, save with his sketch plan of the area, which is Exhibit 1, and his fair copy of that, which is Exhibit 2. However, he took statements from the two injured men and from the pillion passenger who was riding abaft Mr. PAU.

9. Appalling mistranslations of those statements were first tendered to me, but, by agreement with all parties, my own interpreter retranslated them, and the original statements with the new translations have become Exhibits in this case. Exhibit 7 is the statement of Mr. CHOI, and 7A is the new translation; Exhibit 10 is the statement of the pillion passenger, and 10A is the translation; and pages 1 to 2 of the agreed bundle are the statement of Mr. PAU, and pages 3, 4 and 5 substitute, are the new translation.

10. I have had, therefore, in great measure, to rely upon inferences to be drawn from the markings on the plans made by the police constable, the photographs produced by the parties, the photographs produced by the police, and the photographs produced by the parties' Solicitors.

11. Attempts were made by the various witnesses to assist me by marking photostat copies of Exhibits with various positions, but, having regard to the totality of that evidence, I can place little reliance on those markings, save to say that they afford me an indication of the general position of the injured men and their bicycles after the accident.

12. The sergeant who arrived first on the scene has not been called, nor have the ambulance drivers, so I know not where the prostrate drivers were picked up, nor do I know in which direction the motor cycles were facing or on what side they lay after having come to rest.

13. As Mrs. Penglington pointed out to me very forcibly in her admirable summary, much is to be gleaned from pages 17 to 20 of the agreed bundle - those are photographs supplied by the R.H.K.P. - and on Exhibits 5 and 5A - which are photographs produced by Constable WONG - for in those photographs are to be seen scratches on the road surface, which scratches appear on Exhibits 1 and 2.

14. In case this matter should go further. I should add at this stage that the constable did concede that his fair copy, Exhibit 2, was wrong in that the white "V" s between white lines, marking what Mr. Eddis has called the "weave area", leading up to the bollard at the intersection that divides the rising road section (that goes to Lion Rock etc.) from the descending road section (that goes to Tsim Sha Tsui and Gascoigne Road), was wrong, and that the "V" markings should begin very much further to the right.

15. I have marked my own photostat copy, but, for the record, I will describe in words what the constable wished me to do to correct the plans. The "V" markings should begin 3½ squares further to the right on Exhibit 2 than are shewn, more or less vertically in line with the "7" of " 78 " at the foot of the page where it says "ARB No. 17760/78". That is quite clear if you look at his Exhibit 1, because he told me that the "V"s began on the right hand side of the square that begins vertically above the letters "IC AC" - singularly inappropriate initials - which are to be found at the foot of Exhibit 1 in print.

16. Again, as Mrs. Penlington said, the next most helpful thing was the series of photographs produced by Mr. PAU of his own motor cycle, (and they form Exhibit 9), because they shew the damage to his bicycle far more clearly than the police photographs shew the damage to Mr. CHOI's bicycle.

17. One last preliminary matter. On Exhibit 3B, which has been much used in these proceedings, and particularly on page 46 of the agreed bundle, a set of double white lines is shewn leading up to the "V" markings which I have just described. I was told that those did not exist at the time of the accident, and that is borne out most clearly by Exhibit 9A. Anyone reading these papaers hereafter should bear in mind that the double white lines did not exist at the date of the accident.

18. There was evidence from an employer, but, as agreement has been reached between the parties on special damages, I will not mention that in this judgment.

19. The remaining evidence came from the pillion passenger, a young man who appears to have a slightly nervous disposition, who impressed me with his effort to be fair and accurate, but who quite clearly remembers very little of what happened. For example, he does not even remember "leaving" the bicycle and landing where he did, which was on the lower slip-road going down to Tsi Sha Tsui. I am not surprised at the element of surprise that he expressed in finding himself down there; I am only surprised that he was not severely injured.

20. When I asked him at the close of his evidence, if, on reflection, he may in fact have fallen off the bicycle immediately prior to the accident, he frankly said to me ,"I believe that is the case." Then he went on to elaborate and said, "Just prior to the accident, I just fell off, and I did not see how they collided."

21. As I say, he seemed to be - although clearly a close friend of Mr. PAU - trying his best to be fair and accurate and to recollect what happened. But, having regard to all the circumstances -and it is not surprising, his evidence was not entirely coherent, and he made a number of conflicting statements. There were, however, two that he gave in re-examination, which provided me with a major clue as to where the truth lay. When I say "where the truth lay", I am not suggesting that anybody was trying deliberately to conceal the truth from me: As I have said, they probably do not know; everybody is trying an ex post facto reconstruction. He had said to me at an earlier stage that he felt that the other motor cycle, that is Mr. CHOI's, was in front. And, in re-examination, he was asked, "What gave you that feeling?", and he said, "Because at the time my head was slightly inclined to the right, and of course my eyeballs could turn from side to side, so I felt in any event I could see what happened in front." And he was asked, "What could you see in front? The front wheel of your motor cycle, or the back wheel of the other motor cycle, or the whole of the other motor cycle?", and he answered thus, "Well, after making payment, when we started off, I felt the speed of the other motor cycle was faster than the speed of ours. And then just before the accident, I felt from the rear wheel of the other motor cycle that it was in front." Why I found those two answers so helpful I will explain in one moment.

22. The Plaintiff's story is that he was proceeding along in what has been described as the third lane, that is the lane up which a green lorry is proceeding to the right of the double white lines on page 46, that I have just mentioned. And he says, after describing certain noises, that he was struck by a motor cycle coming up from behind him on his left hand side, and that is how the collision occurred.

23. Mr. PAU's version is totally different. He says that he was proceeding along the third lane when he received a warning from his pillion passenger and as a result he saw a motor cycle coming out of the fourth lane into his lane.

24. On 22nd November, 1978 he gave Constable WONG a drawing which is now Exhibit 4. He marked the position of his own motor bicycle with broken lines showing its course, and he marked what he then said was the track of Mr. CHOI's motor cycle to his right and slightly to his rear with broken lines whewing its track. However, when giving evidence before me, he very properly and very frankly said, "All I can recollect is the diagonal bit within the third lane, and the remainder of the broken lines is conjecture. I did not actually see that." Such frankness is commendable. It is a pity he was not as frank with the police constable, or this case might possibly have been settled at an earlier stage, thus saving everybody a lot of money.

25. I have to decide if Mr. CHOI's bicycle was struck on its near side by the front of Mr. PAU's bicycle, or if Mr. PAU's bicycle was struck on its off side by the front or the side of Mr. CHOI's bicycle.

26. The damage to the off side of Mr. PAU's bicycle consists of a number of things. First, the lower and outer surface of the rubber covering of the foot-rest; second, the seat where the pillion passenger would be; and third, a dent and an irregular long scratch, with some breaks in it, down the side of the exhaust pipe. Those are shewn clearly in Exhibit 9(3), and less clearly in Exhibit 9(2). The damage to the left hand side was of a different character, as can be seen from Exhibits 9(7) and (8), 9(6) and 9(5), and less clearly from 9(4). The foot-rest had been driven almost flat along the chassis; the seat by the pillion passenger had been torn; the handle-bar had been bent back; the clutch lever is missing; the rim of the headlight was damaged around the left hand side; and the tail lamp was forced back; and the left hand side of the double D-shaped glass was missing altogether. There is a report on that vehicle on page 15 of the agreed bundle.

27. The damage to Mr. CHOI's bicycle on which there is a report at page 15 of the agreed bundle is quite different. The clutch lever on the near side and the rear mirror was knocked round; the foot-rest was bent; the seat was torn; and the exhaust pipe damaged. The - throughout the hearing we called them, the leg protectors, but the vehicle examiner called them crash bars - the near side one was bent right back, and it is noticeable from photograph (VI) of Exhibit 5 that, although it is bent back, it is not in fact scratched in the way one would expect if it had dragged along the ground as opposed to being knocked over on to the ground. Obviously there is other damage, but I do not need to go into that.

28. I have now to consider, therefore, whether that damage, combined with the marks on the road shewn so clearly in the photographs, to which I have referred on pages 17, 18, 19 and 20, the police photographs, of the agreed bundle, and in photographs (V1), (V2) and the unmarked one on Exhibit 5, top one and bottom one and particularly the centre one on Exhibit 5A, is consistent with Mr. PAU's version or Mr. CHOI's version.

29. Much was made of the position of the bollard to which I have made reference. It is quite clear from photograph 5 on page 18 of the agreed bundle that the bollard was knocked forward - and when I say ''forward", that is in the traffic direction going up towards the Lion Rock Road - and torn, or knocked, forward is all I can properly deduce from that.

30. What is interesting is to note that, in photograph 3 on page 17, the intact glass and plastic part of the bollard is standing happily in the middle of the road, having obviously been placed there to divert traffic around and away from the scene of the accident, the police vehicles and the injured persons.

31. Mrs. Penlington asked me to look at the photograph 5 on page 18 of the agreed bundle, and to assume from that that the bollard was dragged forward by the accident, by one or other of the parties or by their bicycles. I do not think it would be right of me to make that assumption considering the use that was put to it by the police in an emergency. They had to protect two, possibly three, injured people, they had to stop other vehicles from running over fallen bicycles, and they had to protect themselves, their bicycles, ambulances and police vehicles. It is equally possible the bollard, having been knocked forward and out of position, was just pulled out of its place by somebody, probably a policeman, and placed in the position shewn in photograph 3. I do not think it will be right of me to draw any further inference from the bollard than what I have just said.

32. Mr. CHOI was driving a powerful machine, more powerful than that of Mr. PAU. He had gradually been progressing through more and more powerful machines as time went on, and that progression had been reasonably fast; and it is quite clear on the evidence that not only was it more powerful, but it was going faster at all material times. He was not a particularly experienced driver. He is still quite a young man to this day.

33. Mr. PAU, on the other hand, was driving a much less powerful bicycle. It was, I believe, his fourth, and it was less powerful than the one immediately preceding it.

34. It does appear as if neither of these young men was complying with the speed limit, but, as I have said, no Jehu-like driving by either of them was alleged.

35. Going back to Mr. CHOI for a moment. He had only held a licence for two years. He had a 400 c.c. vehicle for two months, having been preceded by 350 and 150 c.c.s. But he had gone up 150, 350, 400 in a short space of time.

36. Mr. PAU had gone 90, 125, 500, down to 250, and he had 4½ years' experience.

37. Despite the length of time spent over this action, I am still none the wiser as to whereabouts in their respective lanes these young men thought they were. I am dealing with motor bicycles, and not with motor cars which would fill most of the lane. A. bicycle can be in various parts. That will become of importance, as you will see in a few moments.

38. It appears from the evidence that the ultimate road destination of both these young travellers was the rising road marked in Exhibit 3B as "Ho Man Tin and Lion Rock Tunnel". That lane, the one I have already described, commences further back, near the directional board slung right across the whole road, as the second lane from the left. Just as it approaches the bend going round to Tsim Sha Tsui, Mong Kok and, if you wish it, back into the harbour tunnel, the lane widens. It is preceded by a road surface two-directional arrow, ahead and to the left, and then, just before the bifurcation, there are two separate arrows, one after the road marking "Tsim Sha Tsui" in English and Chinese indicating a left direction, and the other in what remains of the lane marking an ahead direction.

39. In other words, if you are coming quite properly in the lane in which you could go to Lion Rock Tunnel, and you are keeping properly to the left of your lane, you have to work your way over to the right as you approach the bifurcation - that is if you are on a motor cycle - in order to go where both these young men wanted to go.

40. I have listened to the evidence very carefully and I have examined all these photographs and plans very carefully and I have had two extremely helpful submissions to analyse what I have seen and read, studied and heard. I have come to the conclusion that this accident occurred for two reasons: (1) because Mr. PAU left his selection of his path in the lane rather late in the day, he was taking the right hand side of the bifurcation to enable him to go up to Prince Edward Road, and (2) because Mr. CHOI was cutting corners in order to get himself nicely positioned to go to where he was going in that lane, once he came up to the bollard and beyond.

41. In any accident of that kind, the behavioural burden on the follower is greater than that of the leader. It follows, therefore, that the greater proportion of blame is attributable to Mr. PAU.

42. I am not going to go into a detailed analysis of all the damage - all the evidence suffice it to say that the only thing that will explain what I saw was if Mr. PAU came along on the correct side of his lane until he got to the bifurcation, and then, without realising the potential danger, put his bicycle over to the right; I do not mean he turned right, I mean he put his bicycle over to the right.  Not being able to warn Mr. LEUNG when he executed that manoeuvre, Mr. LEUNG fell off in the manner he described, and, mercifully, escaped serious injury.

43. Mr. CHOI can not escape blame because he ought,  with his mirrors, to have realised that something like that could happen. If he had been keeping a proper look-out, he ought to have realised that something like that would happen unless he kept away and went into the lane that is shewn on Exhibit 3B either in the centre of it or in the outer side of it, still within his own lane, of course.

44. There is no evidence of his being forced over by any cars or lorries and, therefore, he is reprehensible at that point in not having kept out of the way of anyone who, like Mr. PAU, may have had to enter the lane at the last possible moment. When I say "last possible", I do not mean last possible so that you are putting yourself in extreme danger by doing it at the bollard itself, but "last possible moment" in the context of the "X" in the circle shewn on Exhibit 3, in that sort of area.

45. This action, coming before me in the manner which it did, came hither under the terms of an Order of Master Blackwell of the 22nd of October, 1981, who according to him, heard the Director of Legal Aid for the Plaintiff in the first action and the Solicitors for Mr. PAU in the second action, and heard the Director of Legal Aid - it is very badly worded - the Director of Legal Aid for Mr. CHOI in the second action; the Solicitors, he says, for Mr. PAU in the second action being absent. It is not for me to construe that recital. That would probably take several days to do so, needing expert evidence from the Solicitors.

46. What he ordered was that 6003, that is Mr. CHOI's action, be consolidated with 5750, that is Mr. PAU's action, and the actions proceed as one action, and the costs of and occasioned by the application be costs in the cause. Apparently, he gave none of the necessary directions; who was to be Plaintiff in the action, was Mr. PAU's action to be treated as a counterclaim, were there to be any set-offs, and so on. None of the things that one would expect in an order for consolidation appears there.

47. On the 10th day of May in the following year, the matter came before Master Wilson for directions, and he ordered that Mr. PAU's statement of claim do stand as a counterclaim in the consolidated action. He made the necessary orders about Solicitors so that there should not be more than one Solicitor for Mr. PAU, and he gave what I may call the "standard orders for directions" thereafter.

48. There is no reference anywhere to set-offs. No set-off has been claimed, and Master Wilson did not order that, as between the parties there be deemed to be a claim to set-off either on what had become the claim or what had become the counterclaim. What I propose to do, therefore - I think it is the only way I can do justice between the parties - and what I would probably do even if there had been an order for a set-off, is to make two separate awards; an award for Mr. CHOI against Mr. PAU, and an award for Mr. PAU against Mr. CHOI, and they may be considered to be entirely separate and distinct awards.

49. Having regard to the conditions of the road and the marking shewn on Exhibit 3B, having regard to Mr. CHOI's duty to keep a look-out when he was edging his way over to what would otherwise be the proper part of his lane, the left-hand lane, I adjudge him to be 30% to blame. The parties have most sensibly, and happily - because otherwise there would be a long adjournment before I could deal with it - come to agreement or the quantum of general and special damages subject to liability and subject to one matter that I am now going to mention.

50. In his pleading, Mr. PAU, under paragraph D of the particulars of special damage, claimed loss of earnings as a car mechanic at $800 a month from the date of the accident to the end of that month. To that, no challenge is made. He told me in his evidence that he had been doing rather well and he in fact had been put in charge of other apprentices and was doing a mechanic's work, but, as one would expect from a Hong Kong employer, he was not yet getting a mechanic's wage. He was told by his employer that he would get a mechanic's wage at the end of that month, that is, from the 1st of September, 1978, when his wages would be $1,400 a month, and he was issued with an identity card of a mechanic, which is Exhibit 8.

51. He was cross-examined as to why he got it before the 1st of September. Having regard to the view I formed of him and his evidence, I can find nothing sinister in his having got that before lst September, and I must reject the submission made to me by Mr. Eddis that what it means is that he had been promoted to mechanic at an apprentice's wage of $800. I accept that, as from the 1st of September, he would have got $1,400.

52. Now, approximately two to three years after this accident, Fifu Motors, the employer, went out of business. Mr. PAU does not know why, and he does not know where the proprietors now are. I suspect that, given more time and effort, they could have been traced, because some members of his family may know where they are, but Mr. PAU now lives in British Columbia.

53. He said to me this:

"I was told that I would have an increase to $2,000 after 4 months' probation."

that is, at the beginning of 1979. He was asked whether he had got that in writing. He made it clear, and, from his expression, abundantly clear, that that was not the sort of thing that he would ever have expected to have had. He was quite happy to accept his employer's assurance. What he said was:-

"They told me and they had already issued me with an identity card of a car mechanic."

54. Mr. Eddis says to me that I must disregard that entirely. He says nobody has bothered to trace - to find and bring before the Court the old Fifu Motors' man, nobody has bothered to bring before the Court comparables from other garages what they paid mechanics in 1978.

55. I believed Mr. PAU when he told me that. While, on a very strict view, it is hearsay, I am prepared to accept it. That is what he well and truly believed, and it seems a reasonable wage for the sort of work that he would have done, and, in those circumstances, I accept that, from the 1st of January, he would have been earing $2,000 a month; not very much for a skilled mechanic, but it was probably a small motor firm.

56. There will be judgment for the Plaintiff in the consolidated action for 70% of the sums set out in the agreed document marked 'X' and initialled by me. There will be judgment for the Defendant on the counterclaim in the consolidated action for 30% of the sums set out in the document marked 'Z' and initialled by me: 'Z' is agreed save as to the quantum of the wages after 31st August 1978, on which I have just made a finding in favour of Mr. PAU.

57. Well now: What are we going to do about costs, Mr. Eddis?

MR. EDDIS:    My Lord, both the White Book and the Butterworth give some assistance on this:  It is the Medway Oil and Storage Co. Ltd. v. Continental Contractors Ltd. [1929] A.C. 88. I am told by the learned author, my Lord - I have not had time to check the case - it is laid down that ... counterclaim, either succeed or fail. The rule, unless otherwise specially directed, is that there should be no apportionment to the general costs. The party who is to receive or pay the costs of the action is to receive or pay the whole of such costs of the action as if there was no counterclaim. The party who is to receive or pay the costs of the counterclaim is to receive or pay only the costs of the action, so far as it has been increased by the counterclaim, and would not have then incurred much for the counterclaim.

58. It further assists, my Lord, by referring to this case and some other in the White Book, order 62, rule 9, note 13. As I am reading from an old book, I hope I am reading the same my Lord. The page, my Lord, is 62, rule 9, note 13, headed ''counterclaim''. Is it the same, my Lord, in the '83 book?

COURT:  "The same principle applies where both the claim and the counterclaim have succeeded.".

MR. EDDIS:   That is right, my Lord. The Medway orders, approving and following other cases,costs of ...... and counterclaim ......

59. That does help, my Lord, it talks about claim and counterclaim, and both dismissed with costs.

COURT:   Yes, I do not want that. I now want the one where they both succeeded.

MR. EDDIS: Yes, my Lord, that is the main ...

COURT:  (To Clerk) Give me [1980] 1 W.L.R.

MR. EDDIS:  My Lord, in the Medway case ...

COURT:  Millican v. Tucker, yes. It was Mr. Justice Browne-Wilkinson. No doubt there is something in it. I see it has already been distinguished. It was not just Mr. Justice Browne-Wilkinson. It did go to appeal.

"In the present case almost the whole of the Plaintiffs' costs would have been incurred if the claim had stood alone, because the counterclaim did little more than claim declarations which were the mirror image of those claimed by the Plaintiffs. That is not to say that the counterclaim was necessary. Only that it scarcely added to the costs.".

MR EDDIS:  That is the point. Another point I would ask your Lordship to note, and that is that you have come to a conclusion on a line which I saw as a possibility and addressed you on, which neither participants regarded as a possibility. I have noted this comment of yours, my Lord, when referring to Exhibit 4, when Mr. PAU drew that zigzag action from the fifth lane through the two cars to the third lane - "it is a pity he was not so frank with the police constable"; it might have settled the case much earlier - and you have disregarded altogether his version. You have in fact accented Mr. CHOI's version, but you said he should have been more on the look-out. But that additional consideration before you, my Lord, that the counterclaim has really added nothing to the costs, and that you have disbelieved Mr. PAU's version which - when you gave it to the police, doing the best he could, I am sure, he was trying to reconstruct something which simply did not happen.

COURT:  Lord Justice Donaldson, as he then was, did say though, at the top of page 654, that the trial judge is still left with a very wide discretion, and he can make such an order apportioning costs.

MR. EDDIS:  Always, my Lord, but I think, my Lord, as I say, you have accepted Mr. CHOI was hit from behind. You are not accepting Mr. PAU. Mr. PAU, trying to reconstruct it in November, gave a - it is always your discretion, I would not attempt to say you have to do it this way, my Lord. I certainly would not suggest that you have to do it the way I am submitting, but there are factors in this case, my Lord - both, as I say, the counterclaim has not really added to the costs, and Mr. PAU has been did believed and has given a reconstructive version to the police, which he partially backed down from in Court, and what you have found was that it was wholly wrong, and so, my Lord, in your discretion, I would ask that the costs should follow the event without regard to the counterclaim.

COURT:  A hundred per cent?

MR. EDDIS:   Well, very little, my Lord, should be awarded. I would say the counterclaim has not added ...

COURT:  That is a different matter. You see in those two cases, Millican and ...

MR. EDDIS: And the Medway one.

COURT:   And Medway, the question of making apportionment of costs. In other words, you get so much costs, the other side get so much costs, you work it out between you on the two different taxations, which is a very cumbersome order, but that is not to say that I can not deprive you of a proportion of your costs.

MR EDDIS:  My Lord, then I would ask you, for the reason that very little had been added by the - I would not say a hundred per cent again, my Lord, as I have indicated the liability and you seemed to ...

COURT:  No, you very properly said to me 20 to 30% liability on the part of your client, which was exactly the range that I had in mind.

MR. EDDIS:  Yes, I would say about half of that, my Lord, in costs, would be fair under the circumstances.

COURT:  Because all that has been advanced here by way of counterclaim would have to be litigated in your action.

MR. EDDIS:  Yes, indeed, my Lord. So very little extra costs that he has ... I do not want the injured person to be deprived by a heavy costs available ...... cut them down to 30%. I would urge my Lord, just as I urge 20 to 30%, on the view you are now taking things, that the proper award for costs should be l0 to 15% by the ...

COURT:  Yes, I see by the pleadings that you are legally aided.

MR. EDDIS:  It is true, my Lord, yes.

COURT:  Are you, Mrs. Penlington?

MRS. PENLINGTON: No, my Lord.

COURT:   Yes, I see that the Court of Appeal in Thew-v. Reeves - that is Lord Denning, Lord Justice Dunn, Lord Justice O'Connor - which is reported in [1982] 1 Q.B. 172 - approved a division of the costs of the claim and counterclaim.

MR. EDDIS:   Yes, I would not wish to seek everything, my Lord, but it does seem to me reason for your Lordship to temporarily award the costs and to make an order ...

COURT:  I will hear Mrs. Penlington.

MR. EDDIS:   Yes, certainly, my Lord. I will not say anything more unless your Lord ship wishes.

COURT:  Yes, Mrs. Penglington: There is one thing that puzzles me. Why did you not serve a defence and counterclaim? Why did you start a separate action?

MRS. PENLINGTON:  I think that the reason, my Lord, is purely logistic. The defence was filed on the instructions of the insurance company. I have not managed to check the date, but at that stage the Defendant was probably in  Canada and had not yet decided whether to, in fact ... Might I just check that file? (Pause)

60. My instructing Solicitors, my Lord, were instructed by the insurance company and, unbeknownst to the insurance company at the time, Mr. PAU had gone independently to another firm of Solicitors and had filed his own action, and it was for this reason ...

COURT:   He issued that writ himself, did he?

MRS. PENLINGTON:   Yes, on independent instructions. I think that the first - yes, you will see in the Court file, my Lord, that on the 22nd of August in 1981 Mr. PAU instructed David K.W. Tsang and Co.

COURT:  And that is why Master Wilson had to make the order removing them from the record.

MRS. PENLINGTON:   Yes, it appears so, with respect, my Lord, I think that is proabbly correct. It  was only when the actions were consolidated that David Tsang and Co. disappeared from the scene, so to speak, and my present instructing Solicitors had heard the defence - I beg your pardon, had to hear the counterclaim. Mr. PAU's claim then stood as a counterclaim, and it is my submission, my Lord, that this is the distinguishing feature between this case and the Medway Oil case, which is a pure claim and counterclaim. Here we have in fact two separate actions which have, on the application of the Director of Legal Aid, been consolidated. So indeed it does seem, my Lord, to be an inappropriate case where in fact separate orders for costs are made.

COURT:   Save only this: If I did make such an order, I would have to exclude your statement of claim, your first statement of claim, and have to direct the Taxing Master to ignore it when assessing your costs.

MRS. PENLINGTON:  But as it is now standing as a counterclaim, the ...

COURT:  Yes, the poor Taxing Master, Mrs. Pentington , has to sort out this order, and one of the things that he will be met with will be a claim in your Solicitors bill of costs for the first statement of claim by your client. Surely I shall have to direct that that ought to be disallowed, and your client will have to bear that himself because he really ought not to have done that. He ought to have counterclaimed in his defence.

MRS. PENLINGTON:  That the costs were incurred, and it is now that particular statement of claim which is standing as a counterclaim.

COURT:  Yes, but they ought not to have been incurred in that way. I know what it is: It is $400 on the writ alone plus the costs of Mr. Tsang preparing it. I do not see why those should fall on Mr. CHOI, who could quite easily have coped with the defence and counterclaim in one document.

MRS. PENLINGTON: Indeed, my Lord, but it is my submission that Mr. PAU had not properly taken out this action on his own behalf, and he is therefore entitled to recover the costs, as he is prepared to doing so.

COURT:   I think the fairest order, Mrs. Penlington - you tell me if you disagree with it - is that Mr CHOI should have 70% of the costs of his action, plus the costs of the original statement of claim in your action, and you should have 30% of the costs of the remainder of your action excluding that one document. What do you say as to that?

MRS. PENLINGTON: I do not think I can object to that.

MR. EDDIS: Just one matter to add, my Lord. As I am legally aided, could you make the normal order?

COURT: Yes, the order for taxation under the whatever-it-is Regulations.

MR. EDDIS: Common foundation, yes.

COURT: The Plaintiff in 6003/81 to have 70% of his costs. plus the costs ,of and incidental to the  issue and service of the writ and statement of claim in 5750/81. The Plaintiff in 5750/81 to have 30% of his costs. less the costs of and incidental to the issue and service of the writ and statement of claim (in 5750/81).

61. With effect from 10th of May, 1982, Plaintiff to have 70% of his costs of his claim in the consolidated action, and Defendant to have 30% of his costs of his counterclaim in the consolidated action. All costs to be taxed if not agreed. The Plaintiff's costs to be taxed under the Legal Aid Regulations.

62. Do you have a junior or just a pupil?

MR. EDDIS: He has limited practice, my Lord. He is allowed to appear in matters that can be supervised, and that can be justified.....

COURT: Is there going to be any application by him in respect of his being with you

MR. EDDIS: No, my Lord. I see that is what you mean. No, my Lord. I thought you were ...

COURT: The Legal Aid certificate is only for one Counsel.

MR. EDDIS: That is correct.

(Discussion between Court and Counsel re points not covered or alterations in the judgment.)

4.30 p.m. Court rises.

28th June, 1983

Representation: