Chu Kwong Sang v. Chuen Wo Transportation Ltd and Others

HCPI 296/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 296 OF 2002

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BETWEEN

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Before : Deputy High Court Judge Fung in Chambers

Date of Hearing : 12 January 2005

Date of Order : 12 January 2005

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COSTS ORDER

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1.I make the following order:

(1)	Order in terms of paragraph 1, 2 and 4 of the consent order;
(2)	The 1st Defendant is to pay the costs of the action to the plaintiff up to and including the morning of 17 November 2004;
(3)	The 2nd and 3rd defendants are to pay the costs of the action to the plaintiff;
(4)	The 2nd and 3rd defendants are to pay the cost of the contribution proceedings to the 1st defendant;
(5)	The 2nd and 3rd defendants are to indemnify the plaintiff as to 60 % of the costs of the action up to 9 October 2003 and 100 % thereafter;
(6)	No order as to costs for today as between the plaintiff and the 1st defendant;
(7)	The 2nd and the 3rd defendants to pay costs of today’s hearing to the 1st defendant.

2.The reason as to item (2) of the order is as follows: the 1st defendant has paid the amount of $896,257.60 into court, which amount was accepted by the plaintiff out of time by consent, and the 1st defendant offered to pay the plaintiff the costs of the action and also for the first day of the trial.  It was said to be a quid pro quo for the plaintiff to continue the action against the 2nd and 3rd defendant so that the 1st defendant would be dispensed with the technical difficulties of engaging the plaintiff in as a witness for the contribution proceedings.

3.Counsel for the plaintiff said they were happy to accept the payment in and not pursue the action against the 2nd and 3rd defendants, but nevertheless the plaintiff agreed to continue the proceedings against the 2nd and 3rd defendant.  At that time, it was envisaged that the trial would last only one day.  On the second day of the trial, counsel for the plaintiff asked counsel for the 1st defendant for indemnity as to costs from then on.  There was no concrete answer.  There was no agreement as to costs covering the rest of the trial. 

4.The most important thing I took into account is that the plaintiff and the 1st defendant took the risk that the action would not be finished within one day.  In reality it did not and they had to share the risk.  Further, the plaintiff did get $300,000 or so more after the trial of the action.  Hence I made the decision as to the costs of the action as between the plaintiff and the 1st defendant in the manner I did in item (2).

Ms Susanna K.Y. Leong, instructed by Messrs Fan, Wong & Tso (assigned by DLA), for the Plaintiff

Mr John Wright, instructed by Messrs Massie & Clement, for the 1^st Defendant

2^nd Defendant in person, absent.

3^rd Defendant in person, absent.