Credit Agricole v. Crossland Industries Corporation and Another
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1. I gave judgment in this matter on the 24th of February in favour of the Plaintiff, holding that there was no defence to its claim. I also awarded costs to the Plaintiff on the usual party and party basis. The Plaintiff now seeks an amendment of that award of costs to provide that they should be on a solicitor and own client basis as there is a clause in the contract on which the claim is based that if the Plaintiff was required to sue the Defendant for breach of that agreement it could recove
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HCA006554A/1987
----------------- HEADNOTE ----------------- Claim for "solicitor and own client" costs based on contract but not specified in the claim, not asked for at hearing when judgment given. Should be specified in the claim. Failure to do so can't be rectified under Order 20 Rule 11.
IN THE SUPREME COURT OF HONG KONG HIGH COURT ------------------ BETWEEN
------------------ Coram: Hon. Penlington, J. in Chambers Date of hearing: 2nd March, 1988 Date of delivery of judgment: 14th March, 1988 ------------------ JUDGMENT ------------------ 1. I gave judgment in this matter on the 24th of February in favour of the Plaintiff, holding that there was no defence to its claim. I also awarded costs to the Plaintiff on the usual party and party basis. The Plaintiff now seeks an amendment of that award of costs to provide that they should be on a solicitor and own client basis as there is a clause in the contract on which the claim is based that if the Plaintiff was required to sue the Defendant for breach of that agreement it could recover its solicitor and own client costs. The Plaintiff did not specifically make such a claim in its statement of claim - it just claimed "costs" -and no such application was made at the hearing but it now says that was an oversight and I can correct the position pursuant to Order 20, rule 11 - the "slip" rule. 2. Reliance is placed by the plaintiff on In re Inchcape(1), Doswell v. Norton(2) and other authorities where orders as do the form of costs were corrected after judgment, pursuant to the rule. In re Inchcape(1), Morton, J. cites dicta of Fry, J. in Fritz v. Hobson(3) which in effect says that if there has been an accidental omission of Counsel to call the judge's attention to a particular point but if it had been he would undoubtedly have agreed to the suggestion and made in order accordingly, that error can be corrected. The application In re Inchcape(1) was for costs incurred in an estate prior to the issue of the summons. It was not opposed and the order for costs made at the hearing was, by agreement, on a solicitor and own client basis. 3. Here, it is argued for the defendant, the situation is totally different. There is no suggestion in the statement of claim that costs are being claimed on a solicitor and own client basis and if they had been so applied for by Counsel at the hearing that point would have been taken. It would have been by no means certain that I would have awarded costs on that basis if so asked; it was certainly an arguable point. 4. I agree with the arguments put forward for the defendant. In my view if an agreement provides for costs on any other basis than party and party that should be pleaded in the claim. Costs on a higher scale may be awarded at a hearing, if the Court considers that proper, due to the conduct of the party against whom the award is made, but here that is not the case. Here the claim for such costs is made as forming part of the contract. It is well settled that if the contract between the parties provides for costs to be taxed on other than the normal party and party basis that can be claimed and it is not an interference with the Court's discretion in the award of costs, nor is it a penal provision. G.T.E. Directories (HK) Ltd. v. Mo Yung Kwok Wah(4). However such a claim should in my view be included in the statement. 5. I am satisfied that I have no power to now amend my judgment under Order 20 rule 11 and have grave doubts if I could have made the order sought on the basis of the statement of claim as it stood at the hearing, even if asked to do so. The application is therefore refused. 6. The defendant is entitled to the costs of this application.
(1) [1942] Ch. 394 (2) [1902] 18 T.L.R. 228 (1) [1942] Ch. 394 (3) (1880) 14 Ch. D. 542 (4) C.A. 155/1985 Representation: Mr. F.R. Enock of Messrs Freshfields for Plaintiff Mr. M. Ho of Messrs Woo, Kwan, Lee & Lo for Defendants |