Lam Kuen v. Yiu Tat Fai

CACV000026/1984

Civil Appeal 26/84

Courts practice and procedure - costs - O.62 rr. 3(2) & (3), 5.

While a trial judge has undoubted discretion to deprive a successful plaintiff of his costs, in the absence of reasons the Court of Appeal will not uphold his order where liability in a running-down action was denied and the judge found the defendant only 20% to blame for the accident because there had been no payment in, and the plaintiff had had no option but to bring the action to trial. McCarthy v. Raylton Productions Ltd. and Another [1951] W.N. 376 applied.

Civil Appeal.
1984 No. 26

IN THE COURT OF APPEAL

BETWEEN :

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Coram: Cons and Fuad, JJ.A., and Kempster, J.

Date of hearing: 13th April, 1984

Date of delivery of judgment: 13th April, 1984

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JUDGMENT

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Fuad, J.A. :

1. This is an appeal from an Order relating to costs in a running-down action tried in the High Court. The trial Judge refused leave to appeal, but leave was granted by this Court.

2. The Plaintiff in the action is a man in his eighties who was knocked down by a car driven by the 1st Defendant while crossing Cheung Sha Wan Road. His skull was fractured, and his left leg and knee broken. He had to spend a total of 4½ months in hospital and in a convalescent home. He was assessed to liave suffered a 40% permanent disability. While nelgigence was denied, the quantum of damages were agreed; $115,000 general damages; $50,000 special damages and $15,000 for future loss.

3. The accident occurred in July 1981 and the hearing took place on three days in December 1983. The Judge concluded that the Plaintiff himself had been negligent in using the pedestrian crossing when the lights were against him but that the 1st Defendant had also been negligent in not reducing his speed in the circumstances. He apportioned the blame as follows - the 1st Defendant 20% and the Plaintiff 80%, and therefore awarded the Plaintiff a total of $36,000 with appropriate interest.

4. The award was made against the 1st Defendant only, for the Judge dismissed the action against the 2nd Defendant (who was the 1st Defendant's wife). During the course of his Reasons for Judgment the Judge said: "There shall be no order as to costs between the Plaintiff and the 1st Defendant."

5. The grounds stated in the Plaintiff's Notice of Appeal are "that the Plaintiff (Appellant) was successful in the said action and that the learned Judge failed to exercise his discretion or alternatively erred in the exercise of his discretion in that he failed to award costs to the Plaintiff (Appellant)".

6. It is hardly necessary to say that costs are in the discretion of the trial Judge. While this discretion is absolute it must, of course, be exercised judicially, and in accordance with justice and reason; and not arbitrarily. Costs normally follow the event and a successful party should receive his costs unless there is some ground for the court to exercise its discretion to refuse an order in his favour. Here the Judge gave no reasons.

7. There was no delay in this case - indeed the actual trial came on less than 2½ years after the accident. There was nothing to suggest that the action was unsatisfactorily conducted. It is perhaps necessary to mention that although the Judge dismissed the action as against the 2nd Defendant he made no order as to costs between her and the Plaintiff because "no extra costs would appear to have been incurred by way of preparation and conduct of these proceedings." There is no appeal against this Order. I do not know whether the Judge took this into account when he made his Order in relation to the costs as between the Plaintiff and the 1st Defendant, but in my view this fact is not a relevant consideration.

8. It may be that the Judge made the Order appealed against in view of the fact that he found the Plaintiff much more to blame for the accident than the 1st Defendant. If he did, there is a helpful case on the subject. In McCarthy v. Raylton Productions Ltd. and Another [1951] W.N. 376, the trial Judge had found that the accident had been entirely the fault of the Plaintiff. The Court of Appeal, however, apportioned the blame as to one-third to the Defendants. Counsel for the Defendants addressed the Court as follows: "As the Plaintiff only succeeded to the extent of one-third it would seem fair to give him one-third costs only; but the practice in the K.B.D. is to award him the whole of his costs in such a case." The Plaintiff's counsel then said: "It would be a hardship not.to award the Plaintiff his costs of the hearing [at first instance] and in the Court of Appeal. Sir Raymond Evershed M.R. (sitting with Lord Radcliffe and Denning, L.J.) in awarding the Plaintiff his costs in the court below and in the Court of Appeal is reported to have said -

"... that it was important to remember that the question of costs was within the discretion of the court. In this particular case the order would be that the plaintiff should recover his costs of the appeal and in the court below. That practice had been challenged, but the matter of costs was one of judicial discretion. Here, however, all the facts had to be gone into, whether the claim was for the whole of the damages suffered or was limited to a part of them."

9. It is perhaps necessary to recall that even where there has been payment into court, and the plaintiff recovers no more than the amount paid in, he will normally be given his costs of the action down to the date of payment in.

10. A Court of Appeal is most reluctant to interfere with a trial Judge's discretion in a matter of costs, but in my judgment there were no materials on which the Judge could properly exercise his discretion to deprive the successful party of his costs. As in the McCarthy case, all the facts had to be gone into.

11. I would therefore allow the appeal.

Cons, J.A.:

12. I agree with my lord and would also allow the appeal.

Kempster, J. :

13. I too agree with all that has fallen from my lord, Mr. Justice Fuad, and would only refer to the terms of Order 62 Rule 3(2): "Subject to the provisions of this order and to the express provisions of any other enactment, the costs of and incidental to all proceedings in the Court shall be in the discretion of the Court and the Court shall have full power to determine by whom and to what extent the costs are to be paid, which discretion shall be exercised subject to and in accordance with this order." Sub-rule (3): "If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made to the whole or any part of the costs." And then Rule 5, "The Courts, in exercising its discretion as to costs, shall, to such extent, if any, as may be appropriate in the circumstances, take into account - (b) any payment of money into court and the amount of such payment." Here there was a trial on liability only. The 1st defendant was found 20% to blames. In the event the sum awarded, including interest, was $38,183; by no stretch of the imagination to be described as nominal damages. It exceeds the amount provided for District Court jurisdiction. In the absence of a payment-in the plaintiff had no option but to bring the action to trial. In the premises there appears to me to be no material upon which the Judge could have exercised his undoubted discretion to deprive the plaintiff of his costs. Certainly the learned Judge did not state any reason for so doing. Had he done so the outcome of this appeal might have been different. As it is, in my opinion, the appeal should be allowed and the plaintiff awarded his costs of the action.

Representation:

Michael Poll (D.L.A.) for Plaintiff/Appellant

1st Defendant/Respondent absent, unrepresented.