Chan Ping-yuen and Another v. Heng Hing Hong Hongkong Ltd and Another
Read the full judgment text of DCCJ 4815/1969 on BabelCite. This District Court judgment was delivered on 9 September 1970.
1. This is an application on the part of the plaintiff for an order to be made that the costs of counsel for his attendance in Court on the 19th of January 1970 before His Honour Judge Pickering be provided for and that the order dated the 19th of January, 1970 be amended by adding the words 'Certificate for Counsel'. This application is made under Order 20 Rule 11 of the Rules of the Supreme Court, 1967, commonly known as the 'slip' rule.
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DCCJ004815/1969 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO.4815 OF 1969 -----------------
----------------- Coram: N.B. Hooper, District Judge Date of Judgment: 9 September 1970 ----------------- RULING ----------------- 1. This is an application on the part of the plaintiff for an order to be made that the costs of counsel for his attendance in Court on the 19th of January 1970 before His Honour Judge Pickering be provided for and that the order dated the 19th of January, 1970 be amended by adding the words 'Certificate for Counsel'. This application is made under Order 20 Rule 11 of the Rules of the Supreme Court, 1967, commonly known as the 'slip' rule. 2. In support of the application the plaintiff relies on the affidavit of Mr. Lau Hoi Hing of the firm of Messrs. H.H. Lau & Co., solicitors, who had the conduct of the proceedings in this action. In particular they relied on the provisions of paragraph 3 of the affidavit as follows :-
3. The defendants rely upon the affidavit of Mr. Woo Pak Hay the solicitor having the conduct of the proceedings on behalf of the defendants, which also confirms in paragraph 3 that Counsel for the plaintiffs did apply for a certificate for Counsel before the Court arose, but in spite of such request the Honourable Judge did not order the certificate to be issued. 4. Order 20 Rule 11 provides 'clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal'. 5. It would appear from the authorities referred to in the notes of the Supreme Court Practice, and also in the 22nd Vol. of the 3rd Edition of Halsbury's Laws of England, that quite apart from this rule, the judge or master who gave or made the judgment or order, has inherent power to correct any clerical mistake or error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to his meaning and intention. 6. It is, indeed, unfortunate that the Learned Judge who heard this case, is not now available to entertain this application. The question now arises, whether I, who took no part in the hearing of this action, should amend the judgment of the Court by adding these words 'Certificate for Counsel'. 7. It is quite clear from the authorities that the error or omission must be an error in expressing the manifest intention of the Court, and of course the original Judge is in a far better position to know what the intention of the Court was at the time when the judgment or order was made. In the case of In Re Swire 30, Ch.D. page 239 an application was made to the Court of Appeal to alter the record of its order. In that case an order of a Court of Appeal had been drawn up, passed, and entered, in such a form that it might be contended to decide questions which had not been before the Court, and which it had not intended to decide. The Court held that it had jurisdiction to alter the record of its order. However Bowen L.J. had this to say 'With regard to the proper form of the order, I take no part in this judgment, because I was not one of the judges by whom the appeal was heard, .................' It seems clear that the Learned Judge felt that he was in no position to comment upon the intention of the original judges on the Court of Appeal. 8. It has consistently been held that the application to correct the order ought to be made to the Court which made the order. This was made abundantly clear by the Court of Appeal in the case of Tucker v. New Brunswick Trading Company of London. In this case the Court of Appeal indicated that the application to correct the order ought to have been made to the Court below. However, in his judgment Cotton L.J. made reference to the original Judge in the following words :- 'If Mr. Justice Chitty had been applied to, he might have set this matter right; for though the order had been passed and entered, he had jurisdiction to correct it as not rightly expressing the order he had made'. It would appear have been heard by the original judge. 9. Again in the case of Milson v. Carter the Court of Appeal directed that the respondent should apply to the Supreme Court to correct its order, thereby following Hatton v. Harris (1892) Appeal Cases page 547 approving Mellor v. Swire 30 Ch.D. 239. 10. The position would therefore seem to be, that such an application should be made to the original Court, and though it does not necessarily have to be the same Judge, it is desirable that it should be, because he is in a better position to know what the intention of the Court was. If the matter comes before a new judge, then he must look at all the circumstances surrounding the order, so far as they can be ascertained from the information before him, and give affect to the intention of the Court so far as it is clear. 11. In the case of Reigate Corporation v. Wilkinson 1920.W.N. page 150 the High Court refused to amend the original order by allowing costs on a higher scale. The plaintiffs, who had obtained judgment in an action in the High Court for a sum under £100, applied for a certificate by the Court allowing these costs on the High Court Scale. The action was tried before Eve J. judgment having been passed and entered, the Taxing Master decided that this was an action on contract and ordered costs on the County Court scale, as provided by Section 116 of the County Court scale, as provided by Section 116 of the County Court's Act of 1888, the amount recovered being under £100. By Section 116 of the Act it was provided that with respect to any action brought in the High Court which could have commenced in a County Court, if in an action founded on contract the plaintiff recovered less than £100 he should not be entitled to any more costs than he would have been entitled to if the action had been brought in the County Court, unless in any such action a judge of the High Court certified that there was sufficient reason for bringing the action in that Court, or unless the High Court or a judge in chambers should by order allow costs. The application to amend came before the same judge who heard the original trial, who held that the taxation must proceed on the County Court scale, judgment having been passed and entered. He made this order despite the fact that he felt that on the merits it was a case in which costs on the High Court scale were appropriate, and indicated that had an application been made to the Court at the conclusion of the trial for a certificate before the order had been passed and entered he would have had no hesitation in granting it, as it was a case which involved a good deal of argument on the question of the construction of an agreement. He was of the opinion however that if he granted the application, he would be imposing on the order a construction which at present it did not bear. There was no jurisdiction to grant this certificate and the application must be dismissed with costs. 12. The only case that I have been able to find which deals specifically with a certificate for Counsel is Re Ley's Will Trusts 1964 2 A.E.R. at page 328, but that case is not of great assistance to me as it concerned a consent order made by the Court after a settlement. The head note indicates that where an order, which in substance is a consent order, is approved by the Court on an infant defendant's behalf for the compromise of a chambers matter and the order does not provide expressly for the costs of leading Counsel who appeared at Chambers for the plaintiff, the Court cannot at a later date amend the order or certify under the Supreme Court Costs Rules of 1959 App. 2 Pt. 10 para. 2(3) so as to provide for leading Counsel's fees without the consent of the guardian ad litem, unless the compromise contained an implied term that such fees should be allowed on taxation. Supreme Court Costs Rules of 1959 App. 2 Pt. 10 para. 2 deals with fees by Counsel. Sub-paragraph (3) of that paragraph provides :-
13. It will be appreciated that the position under the above rule is similar to that under Rule 13 Sub-rule (1) of the District Court Civil Procedure (Costs) Rules of 1963, in that the Counsel's fees cannot be included in the costs, unless there is a certificate from the judge, or master. 14. There was some argument in the above case as to whether the matter was a chambers matter, but the Learned Judge proceeded on the basis that it was a pure chambers matter, and that no fees of leading Counsel could be included unless he gave his certificate at that time or amended the original order in some way. In holding that it would be wrong for him to give the certificate at this later stage, he said :-
15. There is naturally a wariness on the part of the Courts, to amend an order, the terms of which have been reached by agreement between the parties. In the action the subject matter of the application now before me, the judgment of the Court was not reached by settlement between the parties, but was made by the Court after hearing evidence and submissions. In the above case the Learned Judge has declined to say what would have been the position, if the original order had not been a consent order. 16. During the course of the hearing of this application I was referred to the case of Chessum & Sons v. Gordon reported (1901) 1 Q.B. page 694. In that case after judgment had been given and the Taxing Master's Certificate had been given the plaintiffs discovered that the amount of fees of the referee had been omitted from the bill of costs carried in for taxation. On an application that the defendant should be ordered to pay the amount of those fees, or such part thereof as should be allowed on taxation, it was held that there had been an error in the judgment arising from an 'accidental slip or omission' which could be corrected under Order 28 Rule 11, by including therein the amount allowed on taxation in respect of the fees paid to the referee. This case was distinguished from the case of Preston Banking Company v. Allsup & Sons on the grounds that in that case the applicant wanted to reopen the order as to costs and to have another order made in its place, not upon the ground that the order as drawn up did not carry out the intention of the Court, but upon the ground that the original order was wrong and would not have been made. In that case the Court refused to allow an amendment. 17. It does appear from the case of In Re Inchcape (1942) 1 Ch.D. page 394 that the order of the Court can be amended to provide for certain costs which Counsel forgot to ask for at the hearing. Although there is no direct authority on the point I incline to the view that an amendment could under this authority be made to allow for a certificate for counsel. However in that case Morton J. said at page 397 'It is clear that, if a Judge's attention is directed to a particular point, and, applying his mind to that point, he decides it, there can be no alteration under this rule even if the judge has fallen into some manifest error'. 18. In the present application it is clear from the affidavits filed on both sides, that the learned judge who heard this action was asked to make an order issuing a certificate for Counsel. It has been argued by Mr. Paul Fok for the plaintiffs that no order was ever made on the merits, as the learned judge did not turn to the defendant's Counsel and ask if he wished to say anything on the matter. This is indeed one possible interpretation of the circumstances. However, the same circumstances are open to another interpretation; i.e. that the learned judge did not consider the case fit for Counsel, and did not therefore require to hear any address from Counsel for the defendant. My difficulty is that I do not know what was the intention of the Court. 19. Clearly there was no omission on the part of Counsel, because he did ask for a certificate for Counsel. So far as the intention of the Court can be ascertained from the record, it would appear that the intention was that there should be no certificate for Counsel. 20. In the circumstances I would dismiss this application with costs.
Representation: Mr. Paul Fok instructed by Messrs. H.H. Lau & Co. for the plaintiffs. Mr. Edward Woo (Woo & Woo) for the defendants. ...(illegible) |