Wong Chi Keung v. Farspeed International Ltd and Others

HCPI262/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 262 OF 2003

BETWEEN

Coram: Deputy High Court Judge Gill in Chambers

Date of Hearing: 21 November 2005

Date of  Judgment:  21 November 2005

J U D G M E N T

1.This is an appeal from a Master’s order of costs in an interlocutory application made against the plaintiff, in favour of the 1st defendant. 

2.The action is a PI action.  Early in 2004 the parties were directed to exchange witness statements by 9 February 2004 and arrange joint medical reports by some time thereafter.  There was no compliance.

3.By letter of 16 December 2004 the plaintiff’s solicitors wrote to those representing the 1st defendant (D1) calling for action as per the directions now significantly overdue.  They were given 7 days, otherwise a summons for directions would issue.

4.D1’s solicitors did respond by letter of 21 December.  That was sent by fax and post; in respect of the fax, that was verified by a fax report.  But the plaintiff’s solicitors claim not to have received it on that date or at any other time, and that which was received by mail only arrived on 28 December.  By that date the plaintiff’s solicitors had already issued the summons that had been threatened in the earlier letter.  The summons incorporated an unless application.

5.There followed correspondence.  One could describe it as acrimonious.  This regrettably is a common feature of communication between solicitors engaged in litigation in Hong Kong.  Too often, as here, unreasonably robust comments are taken personally and are countered similarly; costs are unnecessarily incurred and the overall result is to hinder progress of the proceedings to the detriment of the parties and to justice.

6.The summons was listed on 4 January 2005, but adjourned at D1’s request to 23 February 2005.  By then the parties had exchanged witness statements.  Before the Master further directions were sought concerning the question of a joint medical examination and consequential report.  A proposition put forward on behalf of D1 was declined.  Costs were adjourned for argument; that happened on 24 October 2005.

7.The Master in short reasons made an order which covered the plaintiff’s summons and the hearings of 4 January, 23 February and 24 October.  She found in effect that the summons was not born of necessity, thus should be met by an order against the plaintiff.  However, she found D1 not to be without blame; thus she held that 75 per cent of D1’s costs should be borne by the plaintiff, assessing these at $29,000, payable in any event. 

8.The plaintiff is on legal aid, but for some reason although the matter was traversed, I cannot make out why it was that there was not legal aid taxation.

9.As far as my role is concerned it is common ground that a Master’s order for costs should not be disturbed on appeal unless it can be shown that it was unreasonable, or that the Master erred in law or took into account matters which he or she should not have, or failed to take into account matters which he or she should have; see Hoddle v CCF Construction Ltd. [1992] All ER 550.

10.This - of course, an English case - supports a principle that has been adopted by the Court of Appeal in Hong Kong; see, for instance, China Venturetechno International Co Ltd v New Century Chain Development Co Ltd, an unreported case, CACV20/1996.

11.It seems to me and I find justified the criticism that the plaintiff’s solicitors jumped the gun in filing the summons.  Furthermore, it was inappropriate to have framed it as an unless application, which probably caused or at least aggravated the acrimony that flowed in the resulting correspondence.

12.But that said, at the hearing to which the summons was adjourned the summons was not dismissed; that was, it seems, because it was utilised by the parties as a means of reviewing further matters and resulted in further directions on matters which in the event drove the proceedings forward.  In other words, the summons was a platform which took the action further towards readiness for trial. 

13.In the circumstances, I believe the Master was perfectly justified in being critical of the plaintiff’s solicitors’ application and the erroneous use of the unless procedure.  But in the result I believe, with respect, she erred in punishing the plaintiff in the adverse costs order she made.  It seems to me, as I find, that an appropriate order would have been costs in the cause, and I allow the appeal and substitute that order.

(after discussion)

14.Costs of this appeal to the plaintiff, in any event.

Mr Tim Kwok, instructed by Phyllis K Y Kwong & Associates, for the Plaintiff

Mr Allen Lam instructed by Ford Kwan & Co.,  for the 1st Defendant