Li Chi Hung, Lawrance v. The Secretary for Justice and Another

HCPI1036/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1036 OF 2004

BETWEEN

Coram: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 9 February 2006

Date of  Judgment:  9 February 2006

J U D G M E N T

1.I am very grateful to both counsel for their very persuasive arguments as to who should get the costs following a successful appeal by the plaintiff.  The order nisi made by me in the light of the peculiar facts of this case were that, notwithstanding having succeeded, the plaintiff should bear the 2nd defendant’s costs, and I did so on the basis that the plaintiff through his then solicitors, was put in the position of having to make these applications which were by no means certain to succeed in the light of the authorities.  I had the advantage of sustained argument as to whether the appeal should succeed ultimately.  I took the view that it should, for the reasons that appear in my judgment.

2.In saying that he should have the costs of the appeal, Mr Dennis Law, on behalf of the plaintiff, starts from the position, perfectly reasonably, that costs should follow the event.  That, of course, is the starting point but it is a starting point from which one can depart pretty swiftly having regard to the particular facts and circumstances of the case before the court.  Mr Law has also, again quite rightly, referred to a Calderbank offer which was made in June on behalf of the plaintiff through his then solicitors who have really caused all this to come about, whereby they were, of course, offering to pay the costs of preparing the summons and the affidavits, and so forth, which would have allowed the action to proceed against the 2nd defendant.  That was not responded to and the matter then came on a contested basis before the Master before whom the 2nd defendant prevailed.  So what Mr Law is saying is, first of all that the plaintiff protected himself by a Calderbank letter, which is something to be given proper weight, as the Rule demonstrates, and now, on appeal, having succeeded, it is only right that the plaintiff should have his costs. 

3.Against that Mr Sakhrani says, look at really what happened here; it is through the fault - and that is how it would appear to be - of the plaintiff’s then solicitors, that the limitation period was allowed to expire.  Thereafter, it was by no means a foregone conclusion that the plaintiff could bring himself within the Rule and, secondly, one than had the difficult question of whether the discretion should be exercised in his favour. 

4.I agree with Mr Sakhrani’s approach and I think that it was perfectly reasonable of the 2nd defendant not to have reacted in a favourable way to the Calderbank offer.  In the event they were vindicated before the Master.  They failed before me, but I take the view that the overall justice of the situation is that the plaintiff should pay the 2nd defendant’s costs, notwithstanding their success in the appeal.  It is open to them to seek any appropriate orders to be indemnified by their then solicitors, and having regard to the terms of Order 62 rule 8, of the Rules of the High Court, I am going to direct now, as in fact the Master very sensibly did, that there should be a hearing before me to determine whether the plaintiff should be indemnified by his then solicitors for having got himself into this position.  That is the order that I make in respect of those solicitors. 

5.Mr Law, I would ask your instructing solicitors to take such steps as are necessary to have the matter back before the court and a notice will be issued by the court to those solicitors in any event.

Mr Dennis Law, instructed by Messrs Adrian Yeung & Cheng, for the Plaintiff

1st Defendant, not present

Mr Ashok Sakhrani, instructed by Messrs Cheng, Yeung & Co., for the 2nd Defendant