Lam Wing Sam v. Landfit Enterprises Ltd.

DCEC000370/1999

DCEC370/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 370 OF 1999

Coram: H H Judge Carlson in Court

Date of Judgment: 21 February 2002

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R U L I N G

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1.This is a matter in which the Applicant, who has suffered terrible injuries and is under disability as a result of those injuries, has been awarded the statutory maximum in this jurisdiction, and the question now falls to be decided as to the basis of the taxation of costs.

2.On behalf of the Applicant, it is submitted by Miss Chu, that the basis of taxation should be on the more generous common fund basis and she relies, of course, on the well settled practice in Hong Kong and also in England from which this practice derives in our courts, that in personal injury litigation, in particular in cases which concern either minors or persons under a disability, costs should be awarded on the more generous common fund basis.

3.There is cited in support of that proposition, if that were required, the case of Tai Chow-yung v Ng [1999] 2 HKLRD 549, a decision of Suffiad J, where the judge in awarding costs on the more generous common fund basis had in mind, in particular I think, the practice in England and referring to that practice he drew attention to the Supreme Court Practice:

"That the reason for this practice is that it is difficult for the court to judge on the adequacy of the settlement without knowing how much the plaintiff will receive net of costs."

4.Well here, of course, that amount can easily be ascertained and this is a matter where the Applicant has received everything that he is entitled to.

5.So I take the view that on this occasion the appropriate award is one on a party and party basis. I think there is a distinction to be made between actions at Common Law and applications for Employees' Compensation. So that is the order that I make as to costs.

(Submissions on costs of today)

6.The Respondent do pay the Applicant's costs but not to include the costs of this application, that will be today's costs. So the order will read (I am looking at paragraph 4):

7.The Respondent do pay the Applicant's costs on a party and party basis to be taxed if not agreed, save for the costs of today where there will be no order as to costs.

Representation:

Present: Ms K Chu, of Messrs Johnson, Stokes & Master, for the Applicant

Ms Lam, Margaret, of Messrs Deacons, for the Respondent