Kwan Yu Biu v. Nip Hung on and Others

HCA000844A/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 5th day of June, 1971.

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REVIEW OF TAXATION

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1. This is a review of certain items of the Plaintiff's bill of costs taxed against the 3rd defendant upon the application of the 3rd defendant's solicitors. The items relate to work done by the Plaintiff's solicitors as against the 1st and 2nd defendants and to the filing of a notice of change of solicitors.

2. At the outset I agreed that items 111-114 should be transferred from the party and party columns to common fund. No objection was made by the 3rd defendant to these items when the bill was taxed.

3. Mr. Davies for the 3rd defendant has argued that the other items to which he objects should also be transferred from the party and party columns to common fund.

4. The Plaintiff who was legally assisted instituted proceedings against the 1st, 2nd 3rd defendants as the administrator of the estate of his wife who was killed on the 22nd November 1968 in a road traffic accident.

5. An appearance was entered on behalf of the 1st and 2nd defendants but neither filed a defence and interlocutory judgment was subsequently obtained against them with damages to be assessed. However, Both judgments were silent as to costs. No further action has been taken by the Plaintiff against the 1st and 2nd defendants for the damages to be assessed.

6. The action against the 3rd defendant proceeded to trial and on the 26th November 1970 the Plaintiff obtained judgment for the sum of $26,000 under the Fatal Accidents Ordinance and $4,000 under the Law Reform (Miscellaneous Provisions) Ordinance making a total of $30,000 with costs to be taxed and paid by the 3rd defendant in accordance with the provisions of the Legal Aid (Scale of Fees) Regulations Cap. 91.

7. At the taxation of the 3rd defendant's bill of costs on the 4th May 1971 the 3rd defendant's solicitors objected to the inclusion of the Plaintiff's items for work done by them in obtaining judgment against the 1st and 2nd defendants but I allowed them on the basis that the order for costs against the 3rd defendant necessarily included the costs of all the defendants, the 3rd defendant's liability being joint and several. It is pertinent to observe that Mr. Justice McMullin on page 15 of his judgment said "I find, therefore, that the 3rd defendant was vicariously responsible for the acts of Tse On." i.e. the 2nd defendant.

8. Before the review the Plaintiff's solicitors sent me a copy of a letter received by them from the Director of Legal Aid stating that he had no objection to all these items being transferred to common fund. The Director of Legal Aid based his opinion upon the fact that there had been no assessment of damages against the 1st and 2nd defendants and that no Bullock order had been made against the 3rd defendant. However, the question of a Bullock order is not relevant to the present issue as it will only apply when the Plaintiff succeeds against one defendant and fails against another. In such event the Plaintiff's costs against the successful defendant will be recoverable from the unsuccessful defendant. In this case the Plaintiff has succeeded in obtaining judgment against all 3 defendants. Mr. Davies cited the Following passage on page 76 of Butterworths Costs, Third Edition, Volume 1:-

"In the case of Dansk Rekylriffel Syndikat Akt. v. Snell, [1908] 2 Ch. 127, the plaintiffs succeeded against two of the defendants, against one of whom judgment was obtained on a motion for judgment and against the other defendant after the trial of the action. Neville, J., in his judgment stated that the plaintiffs were entitled to costs, but the question was what form the order as to costs should take. He stated that he had seen the senior Taxing Master and it appeared that according to the practice in the Chancery Division, where some of the defendants do not appear or do not defend, and other defendants carry the action to trial and fail, the costs being given in the usual way in favour of the plaintiffs against the defendants, the whole of the costs were taxed against both defendants jointly, so that the defendant who had not appeared to the writ or not put in a defence may be rendered liable by the action of his co-defendant which he was powerless to prevent, to a sum in respect of costs which may amount to a considerable sum. The Judge stated that in his view this was an injustice and that an alteration in the form of order should be made. In this case the order made was: "the Court doth order that the plaintiffs recover their costs of action down to date of judgment, and that it be referred to the Taxing Master to tax such costs and to certify how much thereof is properly attributable to the defendants jointly, and to each defendant separately and that the respective defendants do pay to the plaintiffs the amount to be so certified. In Hobson v. Leng (W.C.) & Co., [1914] 3 K.B. 1245, a case where defendants severed and delivered separate defences, it was held that the defendant who severed and thereby set up a defence with which the other defendant had no part, was responsible solely for such costs of the plaintiff attributable to the separate defence. It was further held that the Taxing Officer should deal with the taxation on the lines as indicated even though there be no specific direction to that effect."

9. Mr. Davies also cited the case of Stumm v. Dixon (1889), 22 Q.B.D. 529 in which case one of the two defendants obtained leave to amend his statement of defence and added an alternative separate defence denying any liability to the Plaintiff. Judgment was entered against both defendants with costs to be taxed. Lord Esher, M.R. affirmed the judgment of the Queen's Bench Division that the defendant who delivered the separate defence was alone liable for the costs occasioned to the Plaintiff by and in consequence of the separate pleading and that the other defendant was not liable for those costs. However, Fry, L.J. dissenting said that both defendants were jointly and severally liable for all the costs of the action.

10. In Stumm's case the question of the Plaintiff's liability was based upon the fact that one defendant filed a separate defence. No separate defence was filed in this case.

11. As Taxing Master it is my duty to determine what sum in the way of costs is properly attributable to the 3rd defendant without causing injustice. Having regard to the judgment the Plaintiff acted quite properly in suing the 1st and 2nd defendants and at no time did the 3rd defendant allege that the 1st and 2nd defendants had been misjoined. The 3rd defendant was ultimately held liable for the negligence of the 2nd defendant and consequently as judgment was obtained against the 1st defendant in default, he was also liable for that of the 1st defendant.

12. I have therefore come to the conclusion that the 3rd defendant is responsible to pay the costs relative to the work done by the Plaintiff as against the 1st and 2nd defendants.

13. As a result the 3rd defendant's application for a review of those items to be transferred from party to party to common fund is dismissed.

14. The costs of the review will be paid by the 3rd defendant.

15. Dated the 5th day of June, 1971.

Representation: