Read the full judgment text of CACV 255/2005 on BabelCite. This Court of Appeal judgment was delivered on 17 March 2006 before Woo VP, Cheung JA, Suffiad J.
Civil procedure – costs – personal injuries action commenced in District Court instead of Small Claims Tribunal – Calderbank letters 'without prejudice save as to costs' – whether the court may take such offers into account under Order 62, rule 5(d) and Order 22, rule 14 of the Rules of the District Court where the defendant could have protected his position by a payment into court – claim arose from a road traffic accident on 4 March 2003 between a taxi driven by the defendant and a bus on which the plaintiff was a passenger – defendant admitted negligence, disputed quantum – plaintiff's assessed damages of $27,260 well within the Small Claims Tribunal's $50,000 ceiling – defendant made Calderbank offers of $35,000 and later $45,000 'all inclusive' in full and final settlement – plaintiff rejected the offers – whether Calderbank offers should be taken into account in the exercise of discretion on costs – whether it was reasonable for the plaintiff to have commenced the action in the District Court – Held, the Calderbank offers should be disregarded under the proviso to Order 22, rule 14 and Order 62, rule 5(d) because the defendant could have protected his position by a payment into court and his refusal to do so was an unreasonably self-created obstacle, following The Hong Kong & Shanghai Hotels Ltd v Choi Bing Wing and the cautionary observations of Oliver LJ in Cutts v Head and Stuart-Smith LJ in Singh v Parkfield – the 'all inclusive' offers did not separate damages from the plaintiff's already-incurred disbursements of over $14,000, placing him in an invidious position – plaintiff did not act unreasonably in rejecting the offers – even disregarding the offers, it was unreasonable to commence the action in the District Court as the medical evidence (Dr Lee's orthopaedic report) made it clear the plaintiff could not recover more than the Tribunal's $50,000 ceiling, applying the test in Hopkins v Rees & Kirby Ltd – section 5(1) and the schedule of the Small Claims Tribunal Ordinance (Cap 338) confer jurisdiction on the Tribunal for tort claims up to $50,000 – section 24 of that Ordinance allows recovery of reasonable pre-hearing expenses – Keith JA's approach in Cho Ho Kuen v Yu Kwok Wah does not assist a defendant who unreasonably declines to make a payment into court – the proper order is that the plaintiff have the costs of the entire action (including the damages assessment) taxed on a scale similar to that of the Small Claims Tribunal, with disbursements (including Dr Lee's fees) allowed as reasonable and necessary expenses – the cross-appeal (respondent's notice) seeking District Court scale costs is dismissed – defendant to have half of the costs of the appeal, including the costs of the respondent's notice, reflecting the substantial time spent on the unsuccessful Calderbank argument.
Legal issues: Effect of Calderbank offers on costs order in a money claim where payment into court was available · Proper order for costs where plaintiff unreasonably commenced action in District Court instead of Small Claims Tribunal
Outcome: Appeal allowed; cross-appeal dismissed. The judge's costs orders of 29 June 2005 set aside and substituted.
Cited by 2 cases · Cites 4 cases