Siu Sau Yung v. Tak Wing Contractors Ltd. and China Expand Construction Ltd. and Others

HCPI001139A/1996

1996 No.PI 1139

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Deputy Judge Woolley in Chambers

Dates of hearing: 13 May 1997

Date of handing down Decision: 13 May 1997

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DECISION

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1. On 2nd April 1997 I gave judgment in these proceedings against the Defendants for a total of $594202.50 plus interest, less the sum of $120000 paid by way of employees' compensation. I am told, and it is not in dispute, that the net sum due under this judgment is $580838.30.

2. There have been three payments into court made by the Defendants in the course of the proceedings, namely $500000 on 27th May 1994, a further $100000 on 20th December 1994, and another $100000 on 10th March 1997, the first day of the trial. From 20th December 1994, therefore, the payments into court exceeded the sum awarded and it is the contention of the Defendants that they should have their costs of the proceedings since then.

3. Mr. Cheng has sought to persuade me that it is only the last payment which counts, as it cancels out the previous payments, and as it was made so late I should not allow it to affect the costs. This is a novel proposition which does not, I believe, have any support either in the rules or in any decided case hitherto. A payment in is, in effect, an offer to settle the claim, and if several payments in are made, they are merely a series of offers, any one of which may be accepted. Under Order 62, rule 5, I am obliged to take into account any payments into court made by the Defendants, and it follows that my discretion as to costs should, in the absence of any unusual circumstances in the action, be exercised in favour of the Defendants.

4. Mr. Cheng goes on to say that there are three matters which mitigate against an order for costs in favour of the Defendants. The first is that, on the facts of the accident which is the subject of this action, the Plaintiff was bound to succeed on liability and the Defendants should not have contested it, thereby wasting costs.

5. As I have said in my judgment, I am of the view that the Plaintiff had a very strong case on liability, but that is far from saying that the Defendants were not entitled to contest it, and were bound to fail from the beginning. Neither do I think that the strength of the Plaintiff's case here merits it affecting a normal costs order.

6. Secondly Mr. Cheng points out that the Defendants failed to file and serve an answer to the Plaintiff's schedule of damages. This is so, and the Defendants were wrong not to do so. However, this is not a complicated case on damages. Indeed, it is comparatively straightforward. Both parties knew what was claimed and it may be assumed that all the damages claimed were in issue in the absence of an answer to the schedule. I do not consider that the Plaintiff and her legal advisers were placed in a particularly difficult position because of it, nor that the costs were thereby increased or wasted.

7. The third point raised on behalf of the Plaintiff is that the there has been delay on the part of the Defendants, specifically in filing and serving their witness statements and preparing for trial. I have already in my judgment had occasion to comment of the delay in bringing this matter to trial, and I denied the Plaintiff interest for the whole period from the accident to reflect this. I do not consider the delays caused by the Defendants have added so substantially to that as to require them to be condemned in costs more than they already have been in interlocutory hearings arising out of their delay prior to trial.

8. It is trite law that a Defendant who pays money into court which exceeds that recovered by the Plaintiff is entitled to his costs from the date of payment in, and he cannot be deprived of those costs except by serious matters arising out of the litigation or his conduct of it. I cannot find any good reason here to deprive these Defendants of their right to an order for their costs from 20th December 1994, although I accept that such an order may have a disastrous effect on the amount the Plaintiff finally recovers after taxation of those costs, and her own. That, however, is the risk that a party to litigation takes when refusing to accept what in the end turns out to be an offer of reasonable settlement at an early stage of the action.

9. The order that I make is accordingly that the Plaintiff will have her costs up to 20th December 1994, but the costs from that date onwards are to the Defendants. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations. The Defendants must also have their costs of the hearing on 13th May 1997 with a certificate for counsel.

Representation:

Mr. Tom Cheng instructed by Messrs. Van Langenberg & Lau for the Plaintiff

Mr. Ashok Sakhrani instructed by Messrs. Cheng Yeung & Co. for the Defendants