Cheung Kwok Ting v. Liu Ting Kwok and Another

HCPI 97/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.97 OF 2001

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BETWEEN

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Before : Hon Tong J in Court

Date of Hearing : 26 – 27 July 2004

Date of Handing down Judgment : 16 November 2004

Date of Order for costs : 28 January 2005

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O R D E R

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1.I have taken time to go through the written skeletons submitted by both sides on the outstanding question of costs.  I am grateful to both counsel for their effort, the issue was well researched and ably presented.

2.Mr Yau, for the plaintiff, contended that the appropriate principle to apply in this case would be costs to follow the event.  The plaintiff was the “winner” of the event of establishing the claim for damages, and in view of the extensiveness of his injuries, the compensation would likely be substantial.  Although the court found that the defendants are only 15% to blame for the accident, such a result should not prevent the court from making the order in his favour.

3.Mr Ramanathan, for the defendants, submitted that for this particular case, the court should really make no order as to costs.  The reason for this was that the plaintiff had misconducted himself in the litigation in the sense that he had not given credible evidence.  Clearly the plaintiff had deliberately chose to put forward a false case and that would be a good ground for the court to deny him not only costs of the trial but the costs of the action.

4.Mr Ramanathan’s arguments were very persuasive and supported by authorities that in some cases, the court could deny the winning party its costs : see In re Elgindata Ltd (No.2) [1992] 1 WLR 1207, Baylis Baxter Ltd v. Sabath [1958] 2 All ER 209 and the local authority of Ho Shu Kwong Wilson v. Chiang Chun Yuan, CACV168/2002.  But having considered the reply by Mr Yau, particularly his paragraphs 5 and 6, I came to the view that this was not the right case to deny the plaintiff’s costs.  Although the court had, at the end, disbelieved the plaintiff, I would not go so far as saying he had deliberately put forward a false claim.  The assessment of the 15% was really based on the issue of sounding of horn and, in this respect, I tend to agree with Mr Yau that the driver had not been consistent either.  Even if the principles and the exceptional circumstances stated by Mr Ramanathan were correct, I do not think the present case fell into that category.

5.In the premises, I would order that the defendants do pay the plaintiff costs of the action including costs incidental to this order.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

Mr Albert Yau, instructed by Messrs Peter Wong & Partners, for the Plaintiff

Mr Kumar Ramanathan, instructed by Messrs Munros, for the 1st and 2nd Defendants