Chan Fei Sheng v. Great Ocean Enterprises Ltd

HCPI 489/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.489 OF 2005

---------------------

BETWEEN

----------------------

Before : Hon Waung J in Chambers (Open to Public)

Dates of Hearing : 16 February 2006

Date of Judgment : 16 February 2006

--------------------------

J U D G M E N T

--------------------------

1.I have before me an appeal by the plaintiff against the costs order made by the master on 6 January 2006 at the 2^nd Check List hearing whereby, in addition to making various discovery orders against the plaintiff, the master ordered that the Check List Review is further adjourned to 7 April 2006 and that the costs of the hearing of 6 January be to the defendant in any event.  The appeal has been brought to this court purely against that costs order.  There was no appeal against any other part of the order of the master.

2.The history of this case was somewhat involved.  The plaintiff has a claim against the defendant for personal injuries.  There was a 1^st Check List Review hearing before the same master, Master Kwan, and at that hearing in October 2005 the notes of the master reveals this :

“CLR adj to 6.1.06 at 11:30 for P’s sols to obtain notes & records of all previous accident/injury suffered by the P”

3.At the 2^nd Check List hearing on 6 January there was considerable submissions and there was a reliable note of what happened at that hearing, and this can be seen at page 5 of the defendant’s skeleton submission under (k) :

“In the 2^nd CLR hearing on 6.1.2006, Plaintiff’s solicitors alleged that they had complied with the Disclosure Order.  The Defendant’s solicitors did not agree.  The Defendant referred the Master to the medical note of Yan Chai Hospital dated 24.9.2002 (Plaintiff’s bundle page no. 253) reporting that the Plaintiff suffered from chest wall injury on duty on 13.9.2002 and was seen pre-accident and emergency department of Prince of Wales Hospital.  The Plaintiff’s solicitors confirmed that she had not applied for the notes and record regarding the accident in September 2002 because the Plaintiff had told her that there was only one previous accident [sic] at work which was in May 2000.  The Plaintiff’s solicitors also submitted that such notes and record were irrelevant but Master does not accept and remarked that the Plaintiff’s solicitors should disclose all pre-existing condition.  Master commented that the fact that there was an accident in September 2000 ought to have been gleaned from the medical note of Yan Chai Hospital and the Plaintiff’s solicitors, instead of just relying on what the Plaintiff had told her, should have tracked the medical notes relating to such accident to comply [with] the 1^st CLR order.  It is in these circumstances that the Master award costs against the Plaintiff.”

4.Now the notes of the master shows that the order made was :

“(1) P’s sols to obtain all med notes & records of all prev accs, including the Accs in May 2000 and Sept 2002

(2)   P’s sols to supply the D’s sols with copies of their letters of request to the various Hospitals and Clinics

(3)   Def to file & serve its List of Docs w/i 14 days

(4)   CLR adj to 7.4.06 at 10:30 am

(5)   Costs of today be to D in any event”

The appeal is brought only in relation to (5) in the respect of costs.

5.At the hearing of the appeal today, Mr Sun, for the plaintiff, who was not at the hearing of 6 January 2006 (I believe a Ms Mak was there) said everything that could be said.  In fact Mr Sun, with commendable ability, has been persistent in advancing the case that the master was wholly wrong.

6.Now this is an appeal against a discretion exercised by a tribunal on costs.  The exercise of discretion on costs is well known to be a flexible exercise of discretion.  There is a wide range of possibility for any tribunal to make order of costs to reflect what it sees as a fair order in the circumstances.   It is only in the most rare circumstances that appeal court will disturb the exercise of a costs order by a lower tribunal, that is only the costs.  Of course one can readily see when a substantive order has been disturbed in the court below then the consequential costs order can of course easily be changed.  But when the substantive order has not been disturbed or even appealed from, it is extremely rare for the court to then substitute its own discretion to say that the costs order below is wrong.  There is a great deal of authority on this well-known principle, and I do not think that principle is in any way challenged before me.

7.What Mr Sun seeks to do is to say really this : that it was unreasonable for the master to make the order she did, because, in the circumstances the plaintiff’s solicitors were not at fault, they had done everything they could, they did not know about the relevance of these documents nor did the defendant’s solicitors insist upon these and therefore the adjournment was not really the fault of the plaintiff’s solicitors, and that they should not be mauled by a costs order.  They sought to justify their stance at the hearing on 6 January by seeking to argue against the relevance of these documents and Mr Sun today, again, tried to introduce that subject even though he had not appealed against the substantive part of the discovery order of the master.

8.The master ruled against the arguments advanced to her by the plaintiff on relevance of documents relating to the injury from the 2002 accident was relevant to the claim.  The order for discovery of such document was made both in the 1^st Check List hearing as well as the 2^nd Check List hearing.  There is no appeal from these orders.  As a result of the making of the 2^nd order, of course, there had to be adjournment of the Check List Review to April 2006.

9.It is perfectly within the range of discretionary power of the master in those circumstances to make the order she did.  I can see nothing wrong with it and, in the absence of strong ground to say that that is a totally wrong order and that no reasonable master could possibly have made it, it is impossible for this court sitting on appeal to allow the appeal and to substitute the order that is proposed by Mr Sun, that is a costs in the cause.

10.I think there is absolutely no merit in this appeal, and it should be dismissed with costs.  I propose to do a gross sum assessment immediately so that the matter of costs can be finalised.

Mr P. Sun of Messrs Huen & Partners, for the Plaintiff

Ms C. Tsang of Messrs Susan Liang & Co., for the Defendant