Miah, Mohammed Tara v. Hyundai-ccecc Joint Venture

DCEC1068/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1068 OF 2005

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BETWEEN

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Before : Her Honour District Court Judge Marlene Ng in Chambers (Open to Public)

Date of Hearing : 8^th May, 2006

Date of Handing Down Decision : 22^nd May, 2006

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DECISION

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Introduction

1.On 7^th September 2005, the Applicant (“AP”) issued the present proceedings against his employer the Respondent (“R”) to claim for employees' compensation (the “EC Action”). On 16^th September 2005, AP issued proceedings in the High Court against R for his common law claim (the “PI Action”).

2.On 19^th October 2005, R paid a sum of HK$60,000.00 into court in respect of the EC Action (the “EC Payment”). On 23^rd November 2005, AP paid a sum of HK$110,000.00 into court in respect of the PI Action. On 10^th February 2006, R admitted liability in the EC Action. On 14^th February 2006, R increased the payment into court in respect of the PI Action by HK$72,000.00, which together with the earlier payment of HK110,000.00 into court and the EC Payment were in satisfaction of all AP's causes of action in the PI Action.

3.On 22^nd February 2006, AP's solicitors wrote to advise R's solicitors of AP's decision to accept the sum offered (ie HK$242,000.00) to settle both the EC and PI Actions (“Both Actions”). The parties entered into a consent order dated 20^th March 2006 in respect of the PI Action (the “Consent Order”) which provides as follows :

“	(1)	[R] do pay [AP] the sum of HK$242,000.00 inclusive of interest in full and final settlement of his claim herein.
	(2)	The said sum of HK$242,000.00 be satisfied as follows :-
		(a)	Credit be given for the sum of HK$60,000.00 to be paid as Employees' Compensation in DCEC No. 1068 of 2005, subject to the determination of the issue of costs in the said action.
		(b)	[R] having paid the total sum of HK$182,000.00 into court; and
		(c)	The sum of HK$182,000.00 paid into Court, be paid out forthwith to Messrs. Burke Fung & Li, solicitors for [AP], subject to the first charge of the Director of Legal Aid.
	(3)	[R] do pay [AP's] costs of this action to be taxed if not agreed on District Court scale. ……”

4.It is evident from the above that the parties have reached overall settlement of Both Actions save for the question of costs in the EC Action. There is no dispute that AP should be awarded costs of the EC Action up to the date of payment of the EC Payment into court, ie 19^th October 2005. AP argues he should have all costs of the EC Action, but R contends AP should pay R's costs from 20^th October 2005 onwards since AP did not accept the EC Payment within 14 days. In the circumstances, the issue is who should bear the costs of the EC Action after 19^th October 2005. As a corollary thereof, it is also necessary to ascertain the meaning and effect of the parties' compromise.

5.AP's solicitors issued a summons dated 22^nd March 2006 (the “Summons”) for inter alia the following reliefs :

“	(1)	Judgment having been entered for [AP] against [R], compensation be assessed in the sum of HK$60,000.00;
	(2)	[R] having paid the total sum of HK$60,000.00 into Court; and
	(3)	The sum of HK$60,000.00 be paid into Court, be paid out forthwith to Messrs. Burke, Fung & Li, solicitors for [AP], subject to the first charge of the Director of Legal Aid.
	(4)	Costs between the parties be provided for.
	(5)	The legally aided Applicant's own costs, be taxed if not agreed in accordance with Legal Aid Regulations.”

6.On 1^st April 2006, H H Deputy Judge E Yip adjourned the Summons for argument. AP's solicitors in their letter of 3^rd May 2006 claimed that the learned judge has granted AP leave to “delete” reliefs (1) and (2) of the Summons, but R's solicitors deny this in their letter of 4^th May 2006. The court's records reveal that although (a) the learned judge raised a query over the wording, meaning and effect of reliefs (1) and (2) of the Summons and (b) Mr Burke, solicitor for AP, verbally applied for leave to “delete” such reliefs from the Summons, the learned judge has not granted such leave. At the hearing before me, Mr Burke submits that reliefs (1) and (2) of the Summons are no longer necessary and AP only seeks an order in terms of relief (3). Mr Tsui, solicitor for R, has no objection.

Chronology of events

7.On 17^th February 2004, AP injured his right middle finger (the “Finger”) whilst cutting “Geo Textile” with a blade cutter. The injuries arose out of and in the course of employment. The laceration wound was sutured. AP returned to work when the stitches were removed. According to AP (see witness statement disclosed to R's solicitors), there was restricted movement and pain in the Finger and loss of sensation at the tip. AP claimed he could no longer handle construction work due to problems with using tools, carrying heavy weight and doing continuous work. He was dismissed on 5^th March 2004. He looked for work in Japan without success and upon return to Hong Kong found light work at a frozen food factory earning about HK$8,000.00 per month. Such work did not require lifting heavy objects.

8.R did not give particulars of the accident in the Form 2 dated 18^th September 2004. Eventually R took a statement from AP and submitted supplemental information about the accident to the Labour Department on 1^st December 2004.

9.AP's Form 7 dated 25^th January 2005 (the “Form 7”) certified 11 days' sick leave (ie from 17^th to 27^th February 2004 inclusive) and 1% loss of earning capacity (“LOC”). AP's compensation assessment under sections 9 and 10 of the Employees' Compensation Ordinance Cap.282 (the “Ordinance”) under the Form 5 dated 4^th February 2005 (the “Form 5”) was HK$11,893.12. R offered to pay such sum to AP on 25^th April 2005. AP's incurred medical expenses were HK$1,117.00. He was granted sick leave for 1 day for his medical attendance on 23^rd June 2005.

10.On 29^th July 2005, AP's solicitors issued a pre-action letter to R in respect of AP's employees' compensation and common law damages claims proposing inter alia to jointly appoint an orthopaedic expert to examine AP. On 30^th August 2005, R's solicitors agreed to the proposal and invited quantification of AP's claim. By a “without prejudice save as to costs” (“WPSC”) letter of the same day, R's solicitors offered to settle AP's common law damages claim for HK$130,000.00 plus costs. They also said that “[the] Employees' Compensation, based on 1% Permanent Loss of Earning Capacity would be HK$12,778.65”.

11.On 1^st September 2005, AP's solicitors indicated willingness to withhold the filing of claims conditional on R's agreement on the calculation of interest on general damages. They also sought disclosure of various documents pertaining to liability and promised to fix an appointment for the orthopaedic expert to examine AP.

12.On 7^th September 2005, AP issued the Application in the EC Action claiming for compensation under sections 9, 10 and 10A of the Ordinance and for “Appeal against Section 18” (the “Appeal”). The Appeal (presumably against the Form 7) was out of time, but AP did not seek any extension of time to lodge the Appeal. AP did not apply to cancel the Form 5 pursuant to section 16B of the Ordinance (the “Cancellation”).

13.AP's solicitors in a “without prejudice” (“WP”) letter of the same date said that pending (a) proper discovery as requested on the liability issue and (b) receipt of the expert medical report, “[we] have advised our client that we cannot give him any proper advice on the value of his claims. Accordingly, our client is not prepared to consider settlement at this stage.” The initial call-over hearing scheduled on 7^th October 2005 was adjourned because the parties were trying to settle the EC Action (see letter of AP's solicitors to the court dated 3^rd October 2005).

14.The examination by the joint orthopaedic expert was provisionally fixed for 19^th October 2005. AP's solicitors (a) informed R's solicitors about AP's then employment situation, (b) gave them an index of the evidential bundle and (c) invited them to bespeak copies of the documents if required.

15.By their fax dated 9^th September 2005, R's solicitors inter alia disagreed making the withholding of AP's common law damages claim conditional upon R's agreement to their calculation of interest on general damages. By a WP letter of the same date, R's solicitors further disagreed that discovery on the liability issue or receipt of the expert medical report would be helpful for considering settlement since (a) R's settlement offer did not take into account any contributory negligence and (b) the court would not place too much reliance on expert medical reports in assessing loss of earnings or LOC.

16.Due to the parties' disagreement on the issue of interest on general damages, AP's solicitors indicated by letter dated 14^th September 2005 that AP would issue the PI Action. They proposed to adjourn the EC Action call-over hearing and withhold service of the writ in the PI Action pending receipt of the expert medical report, so that “we can put forward terms for settlement of these claims”. AP's solicitors clarified they had appointed Dr Danny Tsoi (“Dr Tsoi”) as the joint orthopaedic expert.

17.By a WP letter of the same date, AP's solicitors confirmed that “our client has accepted our advice, to defer consideration of settlement of his claim – pending receipt of expert medical report with opinion including injuries and disability caused by the accident. It is only with such report, that we can give proper advice to our client on the potential value of his claim, and for our client to give us instructions on the same”.

18.AP issued the writ in the PI Action on 16^th September 2005 but did not serve it. The correspondence revealed some dispute on whether AP had failed to let R have 3 months to investigate the claim prior to the issuance of the writ and/or whether AP was entitled to issue the writ as soon as possible to preserve his claim for interest on general damages. The writ was eventually served on 5^th October 2005.

19.On 23^rd September 2005, AP's solicitors disclosed AP's latest bank statement that recorded his salary payments. They also enquired whether R was willing to adjourn the EC Action call-over hearing pending further negotiations after receipt of the expert medical report. R's solicitors agreed to such proposal. AP's and R's solicitors then liaised over the draft letter of instructions to Dr Tsoi and the choice of Urdu interpreter. The former was eventually dispatched on 17^th October 2005, but the parties fell apart over the appointment of interpreters. On 18^th October 2005, R's solicitors informed Dr Tsoi R would not be instructing him to prepare the expert report.

20.On 19^th October 2005, R paid the EC Payment into court and Dr Tsoi examined AP. On the following day, AP's solicitors sought clarification on the sum R claimed should be credited as already paid and the breakdown of the calculation. Dr Tsoi finished his report on 2^nd November 2005.

21.On 23^rd November 2005, AP paid a sum of HK$110,000.00 into court in respect of the PI Action. AP's solicitors sought a breakdown of the calculation. By a WPSC fax dated 25^th November 2005, R's solicitors clarified that the total sum of HK$170,000.00 paid into court was for full and final settlement of Both Actions.

22.The call-over hearing for the EC Action was heard on 9^th December 2005. AP's solicitors informed the court by letter of 8^th December 2005 that Dr Tsoi's report “indicates possible nerve injury in the finger. Accordingly, we have appointed a neurologist, Dr Brian Choa [“Dr Choa”] to examine [AP] and report on this. The examination is fixed for 21^st December 2005. This is likely to be a relatively small value claim. To save costs, we propose that upon receipt of the report of Dr Choa, we will serve [R] (which should be done by mid January 2006) – who can then decide whether or not to seek opinion from their own experts.”

23.At the hearing Mr Burke accepted that the Appeal was lodged beyond the statutory 6 months' period. Ms Lee who represented R at the hearing took issue on its lateness. Mr Burke complained that R's solicitors never alerted him of their stance and indicated that AP might seek extension of time for the Appeal after Dr Choa's examination. I gave directions for the filing of the Answer, List of Earnings, Lists of Documents and witness statements as to fact. I mentioned to Ms Lee that in light of AP's stance, it would be up to R to consider whether to avail itself of Dr Choa's appointment in December 2005 to jointly examine AP as well.

24.On 12^th December 2005, AP's solicitors demanded R's solicitors to explain why they failed to foreshadow their objection to the late Appeal prior to the call-over hearing. On the following day, R's solicitors answered by asking why the Appeal was out of time.

25.R filed its Answer on 23^rd December 2005. R admitted that it was AP's employer, but denied AP's employees' compensation claim. R further claimed that the Appeal was out of time.

26.Dr Choa examined AP in late December 2005 and completed his report on 30^th December 2005. On 30^th December 2005, R's solicitors proposed to appoint an orthopaedic expert Dr Richard Lau (“Dr Lau”) to examine AP. Dr Lau examined AP on 12^th January 2006 and rendered his report on 24^th January 2006.

27.R filed its List of Documents. On 4^th January 2006, AP's solicitors sought specific discovery of certain documents relating to the accident and AP's earnings. On 10^th January 2006, R's solicitors requested disclosure of Dr Tsoi's and Dr Choa's reports, which was done on 13^th January 2006. AP's solicitors advised R's solicitors that since Dr Choa proposed further treatment, they had written to request the Queen Elizabeth Hospital (the “QEH”) to arrange for such treatment.

28.On 27^th January 2006, R's solicitors by their WPSC fax noted that both Drs Tsoi and Lau assessed AP to have 1% LOC. They claimed Dr Choa's report would not assist AP, so there would be no merit in any application to extend time to lodge the Appeal. But if AP chose to proceed with such application, R would reserve the right to instruct a neurologist, which step would only escalate costs and delay proceedings. R's solicitors further suspected the alleged pain and nerve damage to the Finger might be due to the fracture Dr Tsoi identified and opined as unrelated to the accident. They further claimed the EC Payment greatly exceeded the compensation to which AP was entitled and offered to let AP accept the payments into court in Both Actions on condition inter alia R would pay AP's costs in the EC Action up to and including 19^th October 2005 to be taxed if not agreed.

29.On 3^rd February 2006, AP's solicitors wrote to say they would send Dr Lau's report to AP's medical experts for comments. AP's solicitors confirmed inter alia that AP suffered soft tissue/nerve injury and bone fracture and that the bone fracture was caused by the accident. They also claimed that Dr Choa as a neurologist had expertise in nerve injuries whilst orthopaedic doctors were not such experts.

30.By a WP letter of the same date, AP's solicitors indicated they would take instructions on the fax of R's solicitors dated 27^th January 2006. On/about the same day, the Check List Review hearing in the PI Action was adjourned to 13^th June 2006. 

31.At the EC Action 2^nd call-over hearing on 10^th February 2006 before me, judgment on liability was entered in AP's favour. Mr Burke informed me the earliest follow-up appointment the QEH could arrange was in May 2006. I ordered inter alia that (a) R do within 14 days disclose AP's wage receipts and records for the period of 12 months prior to as well as from the date of the accident and (b) AP's solicitors do write to the court on/before 15^th June 2006 to advise the status of AP's medical treatment. The Application was adjourned sine die with liberty to restore. Issues relating to the late Appeal and the absence of any Cancellation were deferred. Costs of such call-over hearing were reserved because both parties indicated that costs would be in issue.

32.On 13^th February 2006, AP's solicitors advised that Dr Choa still believed AP would require the proposed treatment. AP's solicitors asked whether Dr Lau considered himself an expert to opine on nerve injury/treatment and if so, whether Dr Choa's proposed treatment was necessary or not.

33.By a WP letter of the same date, AP's solicitors enquired whether R would admit liability in the PI Action in which case they would propose that further action be deferred pending Dr Choa's proposed treatment. “At present, we consider that the value of our clients claim – exceeds the sums presently offered. If, however, the treatment recommended by Dr Choa is successful, then it may be that the present offers are reasonable and we would accordingly advise our client to accept the same”.

34.On 14^th February 2006, R increased the payment into court in respect of the PI Action by HK$72,000.00. On 15^th February 2006, AP's solicitors asked for a breakdown of the latest offer. On 16^th February 2006, AP's solicitors assumed from the absence of response to their letter of 13^th February 2006 that R would dispute liability in the PI Action, so they indicated they would proceed to finalise the pleadings. On the same day, R's solicitors warned that if AP's solicitors subsequently accepted the payments into court within the prescribed deadline, R would present the relevant letters to the taxing master in the event of taxation. By a WPSC fax of 21^st February 2006, R's solicitors stated that in order to save costs they would not provide a breakdown of the latest payment into court, but reiterated that such payment into court was more than AP's entitlement.

35.On 22^nd February 2006, AP's solicitors wrote to confirm AP's decision to accept settlement of Both Actions at the sum offered. “We enclose draft (i) Consent Summons – for DCEC (ii) Consent Order – for HCPI for your comments/approval”. The reliefs set out in the draft consent summons in the EC Action which AP's solicitors had initialled (the “Draft Summons”) were the same as those in the Summons save that it prayed for an order that R do pay AP's costs of the EC Action together with all costs reserved to be taxed if not agreed.

36.By their WPSC fax of 1^st March 2006, R's solicitors suggested that for the EC Action R could simply allow AP to accept the EC Payment out of time in full and final settlement without reciting the judgment on liability or having compensation assessed in the sum of HK$60,000.00. But R insisted on only paying AP's costs up to 19^th October 2005. AP's solicitors rejected such proposal and advised they would apply to the court. Eventually both parties agreed to have the issue of costs in the EC Action resolved by the court.

37.The parties' respective solicitors then liaised over the wording of the draft consent order in the PI Action (the “Draft Order”). R's solicitors insisted on expressly reserving the costs of the EC Action for determination by the court. AP's solicitors opined it was unnecessary. In their WPSC fax of 14^th March 2006, R's solicitors stated that “[the] parties have now agreed on the amount of compensation and damages payable to [AP]”, but R wanted to make sure any payment out of the EC Payment would not prejudice R's position over the costs in the EC Action. On 17^th March 2006, the parties agreed on the wording of the Consent Order filed on 20^th March 2006.

Expert medical evidence

38.After the accident, AP complained of pain and took painkiller/medication from general practitioners. In April 2005 he was given a course of physiotherapy at the QEH for about a month, but received no further treatment after June/July 2005.

(a) Dr Tsoi's opinion

39.AP suffered a simple traverse cut wound over the pulp of the Finger. X-ray taken on 21^st April 2005 revealed a vertical fracture line over the terminal phalanx. It was unrelated to the accident and was “probably related to another accident happening at least 3 months before 21^st April 2005.”

40.The initial recovery of the soft tissue cut wound was uneventful. AP was able to resume work and could cope with the duty. However, the Finger was still painful and there was numbness since August 2004. Dr Tsoi could not say whether the treatment AP received at the QEH was related to the accident or not, but there was partial recovery of the numbness and pain after the physiotherapy treatment. The persistently weakened right hand grip could not be explained by the laceration injury of the pulp of the Finger that had healed satisfactorily. The laceration wound had reached maximum improvement and no further treatment was required. The joints enjoyed almost full range of motion and no skin complication was noticed. The weakness on finger flexion could not be explained. The shooting pain and impaired sensation were probably due to irritation of the sensory nerve fibre. The prognosis was good and major disability or discomfort was not expected. AP was fit to return to his pre-injury job with minor inconvenience.

41.Dr Tsoi assessed 1% loss of permanent impairment of the whole person and 1% LOC. He considered 11 days of sick leave were appropriate and no further sick leave was required.

(b) Dr Lau's opinion

42.AP suffered from laceration of the pulp of the Finger with no bony injury. The digital nerves ended at this level and became terminal twigs (ie minute fibres). The cutter could only injure these fine branches. The “part distal to the scar” would usually experience diminished sensation. AP's condition had reached maximum improvement. There was residual stiffness of the Finger and discomfort at the pulp, but such disability was minimal. AP could make a good fist and the scar was only minimally tender on pressure. The prognosis was good with no deterioration expected. Although there was diminished active movement, AP put forward submaximal effort during examination. There was little impairment and AP could resume his pre-accident job. Dr Lau assessed AP to have 1% impairment of the whole person and 1% LOC. Sick leave of 11 days was reasonable and the subsequent sick leave on 23^rd June 2005 was probably for AP's follow-up visit being part of the treatment of his Finger numbness.

43.It was unnecessary for AP to be examined by a neurologist since only terminal fibres of the cutaneous nerves were injured and an orthopaedic specialist could speak on the subject. Drs Tsoi and Lau both found normal movements of the Finger.

(c) Dr Choa's opinion

44.There was damage to minor branches of the digital nerves supplying the pulp of the Finger, but the apparent weakness of the grip could not be explained in terms of organic lesion. AP's condition was static and appeared to be significantly disabled by a minor and local injury. Dr Choa would put AP on a nerve stabilising drug to try to reduce the nerve pain. If this failed, it might be necessary to consult an anaesthetist for some form of nerve block or, if necessary, to consult a pain specialist. Dr Lau opined that the damage to the digital nerve was 6% impairment of the upper limb. With reasonably effective treatment, AP should be fit to return to his pre-accident occupation within 2-3 months of starting the specialised treatment.

Discretion as to costs upon payment into court

45.Subject to section 53 of the District Court Ordinance Cap.336 and Order 62 rule 2(4) of the Rules of the District Court (the “RDC”), the court has a complete discretion on costs. The cardinal rule is that costs follow event (Order 63 rule 3(2) of the RDC). Order 62 rule 5(b) of the RDC provides that in exercising its discretion as to costs the court shall, to such extent, if any, as may be appropriate in the circumstances, take into account any payment of money into court and the amount of such payment. Hong Kong Civil Procedure 2006 Vol.1 para.22/5/5 at p.399 states inter alia that : “This discretion, however, must be exercised judicially ……”

46.Where there is a payment into court, if a plaintiff cannot beat the sum paid into court, he should be paid his costs up to the date of payment in, but normally he will have to bear his own costs as well as the costs of the defendant incurred thereafter. But if he beats the sum paid into court, he will usually recover the costs of the whole proceedings unless there are special circumstances.

47.So where a defendant pays money into court which beats the sum awarded to the plaintiff, he is usually regarded as the successful party who is entitled to costs as from the date of payment in and “[he] can only be deprived of such costs by the proper exercise of judicial discretion upon proper materials arising out of the instant litigation or the conduct of it; he cannot be deprived of his costs for no reason …… or upon no or no sufficient materials ……” (Hong Kong Civil Procedure (supra)).

Payment into court in employees' compensation cases

48.Rule 20 of the Employees' Compensation (Rules of Court) Rules (the “ECR”) provides inter alia that :

“	(1)	A respondent from whom compensation is claimed may pay into court a sum which is considered by him to be sufficient to cover his liability.
	(2)	If no greater compensation be awarded than the sum of money which the respondent has paid into court, the court may order that any costs incurred by such respondent, after payment by him into court of the said sum of money, shall be paid by the applicant.”

49.The Court of Appeal in Li Kwok Shing v Law Ka Fu trading as Wing Fai Electrical Engineering & anor CACV212/2002 (unreported, 21^st June 2003) held that section 21 of the Ordinance applied the provisions of Order 22 of the RDC to employees' compensation proceedings in the District Court and it was unnecessary to bring the ECR in line with Order 22 so as to confer the benefits obtainable under Order 22 to applicants in employees' compensation claims before the District Court. Ma JA (as he then was) held that the scheme for payments into court in employees' compensation proceedings required the application of both rule 20 of the ECR and Order 22 of the RDC. This decision was cited with approval by the Court of Appeal a few months later in Sun Jianqiang v Trans-Island Limousine Service Limited CACV20/2003 (unreported, 17^th November 2003).

50.Since Order 22 of the RDC fills in the gap left by brevity of rule 20 of the ECR, I agree with Mr Tsui that acceptance of payment into court in employees' compensation proceedings after the statutory period of 14 days will normally have costs consequences for the applicant in respect of the post-acceptance period.

Terms of the compromise

(a) Synopsis of R's stance

51.Mr Tsui contends that as part of the overall settlement, AP and R have accepted that the employees' compensation was HK$60,000.00. He submits this is clearly reflected in the Consent Order which expressly provides that credit be given for the sum of HK$60,000.00 to be paid as employees' compensation. AP's clear intention is also seen in the Draft Summons which expressly provides for compensation be assessed in the sum of HK$60,000.00. Such wording is carried over to the Summons taken out by AP's solicitors. In the circumstances, AP is precluded from objecting to the usual costs order that R should have its costs from 20^th October 2005.

(b) Synopsis of AP's stance

52.Following R's increase of payment into court in the PI Action which brought the total payment in sum for Both Actions to HK$242,000.00, AP accepted such sum and reached overall settlement of both his employees' compensation and common law damages claims leaving only the matter of costs in the EC Action to be determined by the court.

53.Mr Burke submits there have been no determination of the amount of employees' compensation and no agreement on the value or worth of AP's claim for the same. He argues that it is evident from the solicitors' correspondence that AP has all along contended that his employees' compensation claim is worth more than HK$60,000.00, but with the overall settlement it has become pointless for AP to proceed with the EC Action.

54.Mr Burke submits that upon reaching overall settlement, AP has only taken steps to effect payment out of the sums R paid into court in Both Actions. He says there is no other way for AP to word the Consent Order and the Draft Summons/ Summons because section 18A of the Ordinance requires the District Court to retain overall control of employees' compensation claims even when the parties have reached agreement. Mr Burke says AP cannot compel R to pay a dollar more than HK$60,000.00 to beat the EC Payment for the purpose of overall settlement. It is suggested that if R wants to protect its position on costs after 20^th October 2005, it should have paid the whole sum of HK$242,000.00 into court in respect of the PI Action and then say it is inclusive of payment in satisfaction of AP's claim in the EC Action. This, Mr Burke says, would have enabled AP to reach overall settlement by simple acceptance of the payment into court. Mr Burke therefore argues that the Consent Order and the Draft Summons/Summons cannot be read in the way Mr Tsui suggests.

(c) Preliminary observations

55.The issue  It is common ground that the parties have already reached overall settlement of Both Actions (save for the matter of costs of the EC Action from 20^th October 2005) prior to issuing the Summons. The issue is whether the terms of such overall compromise includes a mutual acceptance that the employees' compensation is HK$60,000.00.

56.Nature of payment into court  “A payment into Court is simply an offer to dispose of the claim on terms” (see Hong Kong Civil Procedure 2006 (supra) para.22/1/1 at p.387). It has also been said to be the price for peace to prevent further litigation. The Court of Appeal in Sun Jianqiang's case cited the judgment of H H Judge To in Ng Ming Chor v Pui Hing Construction Co Ltd and ors DCEC496/1996 (unreported, 26^th May 1998) and held that payment into court in employees' compensation cases under rule 20(1) of the ECR and Order 22 of the RDC did not imply any admission about the merits of the claim.

57.In the circumstances, if the parties have only agreed to let AP accept the EC Payment in satisfaction of the AP's claim in the EC Action and for such sum to be paid out to AP, there can be no question of any admission or agreement as to the amount of the employees' compensation. The issue here is whether the parties have gone further in reaching overall settlement of Both Actions.

58.Assessment and/or award of compensation  In contrast to an acceptance of payment into court, employees' compensation is payable on liability, which R has admitted in the EC Action. An assessment or award of compensation is made pursuant to section 18A of the Ordinance upon inter alia determination by the District Court after trial/assessment or by consent of the parties. Thus, an assessment or award of employees' compensation is different from a simple acceptance of payment into court.

59.Effect of section 18A of the Ordinance  Mr Burke contends that given (a) the concurrent EC and PI Actions, (b) the way R made payments into court in Both Actions, including the EC Payment (being part of the total sum offered) paid into court under the EC Action, and (c) section 18A of the Ordinance that requires the District Court to “determine” “any matter arising out of proceedings in respect of claims”, even a simple acceptance of payment into court in employees' compensation proceedings requires a “determination” by the court, so AP had no choice but to reach overall settlement by way of the Consent Order and the Draft Summons/Summons. I disagree.

60.Li Kwok Shing's case expressly rejected the above argument. Woo JA held at para.38 as follows :

“As O 22 applies, the roundabout ways of using a consent summons or applying at trial for the court to make an award equal to the amount paid in, as suggested by the judge ……, for an applicant to obtain the money paid into court by a respondent, would not be necessary. Such roundabout ways, if I may say so, are inconvenient, costs increasing, and may operate to the detriment of an applicant on costs.”

61.In Sun Jianqiang's case, the applicant was prepared to accept the payment into court, so his solicitors issued a summons for (a) judgment against the respondent and compensation to be assessed/awarded at a certain amount, (b) credit to be given for various amounts, and (c) the payment in to be paid out forthwith in satisfaction of the balance of the judgment sum. Unlike R in the EC Action, the respondent disputed liability and opposed judgment on liability being granted. It was held that for an acceptance of payment into court in an employees' compensation claim, the District Court is not entitled to enter judgment purely on the basis of the payment in that was accepted. A simple acceptance of the payment into court would have sufficed.

62.The written submissions of R's solicitors for the initial hearing of the Summons before H H Deputy Judge E Yip refer to the case of Chan Lai Heung v Po Leung Kuk DCEC172/2001, H H Judge Muttrie (unreported, 25^th October 2002). Insofar as the learned judge in that case followed the first instance judgment in Li Kwok Shing's case DCEC654/2000, H H Judge Li (unreported, 29^th November 2001) that in employees' compensation proceedings (a) Order 22 of the RDC did not apply, (b) there could not be simple acceptance of payment into court and (c) some kind of determination by the court was necessary, it has been overruled by the Court of Appeal. There is no doubt that by 2006 when the parties reached overall settlement in Both Actions, it is settled law that simple acceptance of payment into court is sufficient to give effect to settlement of employees' compensation proceedings.

63.But even as early as in Chan Lai Heung's case, it was recognised that payment into court under rule 20 of the ECR did not involve admission of liability, so that when an applicant accepted payment into court, it was only appropriate to make an order that was silent on liability. The learned judge held that it was inappropriate to make any order that the respondent do pay the applicant agreed compensation but the summons could simply provide that “credit having been given to the amount …… already paid by the Respondent to the Applicant, the Applicant do have leave to accept the payment into Court in the total sum …… made by the Respondent …… in satisfaction of the causes of action in respect of which the applicant claims against the respondent, and the said sum …… be paid to the Applicant's Solicitors forthwith”.

64.It is therefore incorrect to say that AP had no choice but to approach the overall settlement by way of the Consent Order and the Draft Summons/Summons in the manner he did. Therefore, a question arises as to the meaning and consequences of AP having done as he did.

65.There is also no need for (a) AP to insist on R paying a dollar more than HK$60,000.00 to compromise the EC Action or (b) R to pay the whole sum of HK$242,000.00 into court under the PI Action. Indeed, under scenario (b), R will be in an unenviable position of being without the protection on costs afforded by rule 20 of the ECR and Order 22 of the RDC should AP demand costs of the EC Action following acceptance of payment into court in the PI Action and withdrawal of the EC Action. This is analogous to the situation in Shah Nisar v Wai Kit Engineering Company Limited & ors DCEC1094/2004, H H Deputy Judge J Ko (unreported, 14^th December 2005) relied on by Mr Burke. In that case, the 1^st and 3^rd respondents were ordered to bear the applicant's costs of the employees' compensation proceedings.

66.Worth or value of the claim  The worth or value of the employees' compensation claim features strongly in Mr Burke's submissions. He suggests that the worth or value of such claim exceeds the EC Payment, so AP would not have agreed to HK$60,000.00 as the amount of employees' compensation. Mr Burke also points out that R has failed to explain why the EC Payment exceeds the amount of employees' compensation calculated on the basis of (a) the compensation assessment in the Form 5 or (b) 1% permanent LOC and 11 days of sick leave under the Form 7 (in either case together with medical expenses).

67.In my view, where the parties are sui juris and not under a disability, there is no necessary correlation between (a) the sum which the plaintiff chooses to pay into court or which the defendant chooses to accept and (b) the worth or value of the claim. Sometimes a small sum is paid in or accepted for a significant claim and sometimes a large sum is paid in or accepted for a trivial claim. It depends on the judgment of the party who makes or accepts the payment into court, which judgment may be influenced by commercial, personal or other factors that are beyond an assessment of the worth or value of the claim. In considering the issue of costs, it is unnecessary for the court or the party who has made the payment into court to speculate on the reasons why the other party decides to accept the payment in. I am not persuaded that the fact that the EC Payment exceeds the calculations based on (a) and/or (b) of the above paragraph is in any way indicative either of R's concession that the Forms 7 and 5 are not binding or of any lack of agreement on the amount of the employees' compensation.

68.Breakdown of the EC Payment  Mr Burke complains that R has all along failed to give a breakdown of the EC Payment. I disagree that this lends any support to the suggestion that the parties have not agreed on the amount of employees' compensation. In my view, it is not incumbent on the party who makes payment into court to explain how the amount of the payment in was arrived at. “There is no embarrassment where it is not clear how the lump sum has been calculated ……” (Hong Kong Civil Procedure 2006 (supra) para.22/1/22 at p.392).

69.Construction of the terms of a compromise  Bearing in mind the above matters, I return to the issue at hand, namely, the meaning and effect of the overall settlement between the parties (apart from the outstanding matter of costs of the EC Action after 19^th October 2005) as is reflected in the Consent Order and/or the “matrix of fact”, including the Draft Summons/Summons.

70.Neither Mr Burke nor Mr Tsui has referred me to the relevant principles, which I find to have been helpfully summarised by Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwick Building Society [1998] 1 WLR 896 as follows :

“	(1)	Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
	(2)	The background was famously referred to by Lord Wilberforce as the “matrix of facts”, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
	(3)	The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
	(4)	The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to man. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax ……
	(5)	The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had ……”

71.According to Foskett, The Law and Practice of Compromise, 6^th ed para.5-09 at p.84, the above principles have been treated as an authoritative framework within which issues concerning the interpretation of a compromise should be judged. The learned author went on to say at para.5-36 at p.96 that the general approach to the construction of a consent order is identical to that of the construction of a contract of compromise. After all, a consent order is itself evidence of the agreement it embodies or reflects.

72.It is immediately obvious that in construing the meaning and effect of the compromise between the parties, AP's or R's subjective considerations as to whether the employees' compensation claim is lower than or in excess of the amount of the EC Payment are irrelevant. With the above matters and principles in mind, I now turn to the circumstances of the present case.

(d) EC Action

73.The compromise between the parties was initiated by the letter from AP's solicitors dated 22^nd February 2006 that confirms AP's decision to accept settlement of Both Actions for the total sum of HK$242,000.00 offered. The acceptance of the 2 payments into court under the PI Action was within time since R only made the increased payment on 14^th February 2006. So AP's solicitors proposed to give effect to the compromise and dispose of the PI Action by way of the Draft Order. In relation to the EC Action, the settlement was long after the expiry of the 14-day period for acceptance of the EC Payment, so AP's solicitors proposed to deal with this by way of the Draft Summons. AP's solicitors sent the Draft Order and Draft Summons under cover of their letter dated 22^nd February 2006 to R's solicitors.

74.The sum of HK$242,000.00 was for full and final settlement of AP's claim in the PI Action. The Draft Order provides that of such sum the total sum of HK$182,000.00 paid into court for the PI Action will be paid out. In contrast, the Draft Order does not refer to a payment out of the EC Payment in the EC Action; instead it expressly provides for credit to be given for the sum of HK$60,000.00 to be paid as employees' compensation in the EC Action. This is echoed in the Draft Summons which expressly provides for compensation be assessed in the sum of HK$60,000.00 as well as payment out of the EC Payment.

75.In my view, the natural and ordinary meaning of the Draft Order and/or Draft Summons is that AP was prepared to reach overall settlement on the basis of HK$60,000.00 to be paid as employees' compensation instead of on a simple acceptance of the EC Payment (which is permissible under settled law). The Consent Order ultimately agreed to and signed by the parties' respective solicitors is in the same terms as the Draft Order in this respect. In my view, there is no uncertainty in the terms recorded by the parties that brings into play the canons of construction on ambiguities.

76.Mr Burke asks me to look at the solicitors' correspondence. I find that the correspondence immediately following the letter from AP's solicitors of 22^nd February 2006 only serves to reaffirm my view. On receipt of the letter from AP's solicitors dated 22^nd February 2006, R's solicitors on 1^st March 2006 proposed amendments to the Draft Summons by (a) requesting AP to bear R's costs after 19^th October 2005 and (b) deleting the provision for compensation to be assessed in the sum of HK$60,000.00. R's solicitors proposed to replace the provision referred to in (b) with a simple acceptance of the EC Payment by AP in full and final settlement of the EC Action. AP's solicitors refused the proposal by R's solicitors and indicated AP would make application to the court. Eventually AP issued the Summons that is in the same terms as the Draft Summons.

77.Meanwhile on the PI Action front, AP's solicitors threatened to issue a summons unless R's solicitors responded to the Draft Order promptly. The solicitors' correspondence reveals that the sole dispute over the Draft Order is whether there should be an express reservation for determination of costs of the EC Action by the court. But there is no dispute over the provision for giving credit for the sum of HK$60,000.00 to be paid as employees' compensation. Indeed, R's solicitors in their fax of 14^th March 2006 mentioned that the parties had by then agreed on inter alia the amount of employees' compensation. The eventual Consent Order dated 20^th March 2006 signed by the parties' respective solicitors still provides for credit to be given for the sum of HK$60,000.00 to be paid as employees' compensation.

78.Without doubt the parties have reached overall settlement by this stage save for the question of costs in the EC Action. In considering the scope of the compromise, I am not concerned with the parties' subjective understandings, eg R's declaration of subjective intent that the employees' compensation claim was less than the EC Payment and AP's subjective assertion that the claim was worth more. Further, in light of the settled law, it is inappropriate to take into account the private view of AP's solicitors that section 18A of the Ordinance dictates the terms of the Draft Order/Consent Order and the Draft Summons/Summons.

79.I find that to a reasonable man (or perhaps in this context a reasonable solicitor) on an objective basis it is plain and obvious from the wording of the Consent Order that the parties have accepted that the sum of HK$60,000.00 will be paid as employees' compensation in the EC Action and credit will be given for such sum. Even if one goes on to consider the “matrix of fact”, the rejection by AP's solicitors of the proposal for a simple acceptance of the EC Payment, the expression by R's solicitors to AP's solicitors that the parties have agreed on the employees' compensation, the wording of the Draft Summons/Summons, and the settled law that allows applicants in employees' compensation proceedings to resolve such proceedings by simple acceptance of payment into court all support the above conclusion.

80.In my view, the Consent Order itself or together with the “matrix of fact” will have conveyed to a reasonable person (or solicitor) that the scope of the overall settlement includes an acceptance of the amount of employees' compensation at HK$60,000.00. In the circumstances, since AP by such acceptance has failed to beat the EC Payment paid into court, he should have his costs of the EC Action until 19^th October 2005 but will have to bear his own costs and R's costs thereafter.

81.But in case I am wrong, I will now proceed to consider the exercise of discretion on costs of the EC Action from 20^th October 2005 on the assumption that there has been no acceptance as to the amount of employees' compensation to be paid.

If there were no agreement on the employees' compensation

82.Both parties agree that AP is entitled to costs of the EC Action up to 19^th October 2005. The dispute is where liability for costs from 20^th October 2005 onwards should fall.

83.Where employees' compensation proceedings are resolved by acceptance of payment into court after the statutory period of 14 days (eg relief (3) of the Summons), the usual costs order is for the applicant to bear the respondent's costs after the date of payment in. So even though costs are in the discretion of the court, credible or sufficient basis has to be shown for depriving R of such usual costs order.

(a) Shah Nisar's case

84.Mr Burke submits that the principles in Shah Nisar's case suggest that the court's discretion should be exercised in AP's favour. In that case, the applicant issued common law personal injuries action in the High Court. Almost a year later he issued employee's compensation proceedings. At that time, there was no certainty that (a) judgment in the common law action would be rendered before expiry of the 2-year time limit for commencing employees' compensation proceedings, (b) the applicant would succeed in the common law action and/or (c) the plea of contributory negligence would not affect the quantum of damages. The applicant also acted with reasonable restraint in the employees' compensation proceedings with no costs unnecessarily incurred. Eventually judgment was entered in favour of the applicant in the common law action. Without objection from the respondents, the applicant applied to withdraw the employees' compensation proceedings. The applicant was awarded costs of the employees' compensation proceedings.

85.There is no doubt that in appropriate cases there can be dual employees' compensation and common law proceedings against the employer. But I am not persuaded that where such dual claims have been appropriately brought against the employer, an applicant's entitlement to costs of the employees' compensation proceedings turns only on whether he has acted with reasonable restraint in face of, say, the mature progress of the personal injury action (in Shah Nisar's case) or outstanding expert medical evidence (in the EC Action). In my view, it is axiomatic that no party will be given costs unless he has a good claim. It is incumbent on the party claiming for costs to demonstrate he has merits in bringing the other party to book.

86.In Shah Nisar's case, the applicant obtained judgment in the personal injury action. No doubt the findings and/or the ratio of the judgment demonstrated a good claim in the employees' compensation proceedings, so that the applicant was entitled to costs if he had acted reasonably. But if, say, an applicant had been unable to establish a good claim (eg where he was only able to establish the respondent's negligence or breach of statutory duty but not their employment relationship), conducting his employees' compensation proceedings with commendable restraint alone will not lead to an award of costs in his favour.

87.In contrast to Shah Nisar's case, AP does not have the advantage of a judgment in his favour in the PI Action. Further, there was no payment into court in Shah Nisar's case, so it was unnecessary for the learned judge to consider the impact of any failure to beat the amount paid into court on the question of costs. Here R has paid the EC Payment into court, so the issue is not just whether AP has demonstrated a good claim against R in the EC Action, but whether AP has demonstrated a good claim against R in the EC Action in excess of HK$60,000.00 on the information placed before the court. 

(b) Good claim?

88.Mr Burke submits that AP does have such good claim, only that it has now been compromised by the overall settlement of Both Actions. He strongly relies on Dr Choa's report that suggests injury to the terminal nerves of the Finger that amounts to 6% impairment of the upper limb (which Mr Burke says amounts to 5% LOC based on Schedule 1 of the Ordinance that provides loss of preferred arm to be 80% LOC). But in my view this is a far cry from having demonstrated a good claim of over HK$60,000.00 against R in the EC Action.

89.Dr Choa recommends further treatment for 2-3 months by medication and if necessary by nerve block. Mr Burke submits that such further treatment will impact on AP's future disability (ie whether he can return to work at the construction site), sick leave period (ie whether he can claim periodical payments for the period of partial loss) and medical expenses (ie whether there will be expenses for the proposed further treatment). AP is due to attend the QEH in May 2006 for further assessment and decision on the need for the proposedfurther treatment. But whether the QEH will concur with Dr Choa's proposal and/or provide the proposed further treatment is unclear. Mr Burke frankly admits that pending the decision by the QEH as to the proposed further treatment and (where appropriate) the outcome of such treatment, AP does not know the value of his employees' compensation claim and cannot make any informed decision about it. He further submits that if Dr Choa's prognosis is correct, the outcome of the proposed further treatment may well be nil or 1% LOC for numbness of the Finger. In the circumstances, even on AP's case, plainly it cannot be demonstrated that at the time when the parties reached overall settlement (or even now) AP would have been able to bring R to book for more than HK$60,000.00 in the EC Action.

90.This is also illustrated by Mr Burke's variable calculations of AP's employees' compensation in his written submissions, which depend on whether LOC is 1% (the Form 7, Dr Lau and Dr Tsoi), 5% (Dr Choa) or 32% under the Hong Kong Paper Mills formula (ie (HK$11,825.00 – HK$8,000.00) ÷ HK$11,825.00) and on whether the sick leave period is 11 days (Form 7) or 29 months (including partial loss period up to end of the proposed further treatment) as follows :

91.Mr Burke accepts that the above projected calculations under the Hong Kong Paper Mills formula are included only for completeness. I find they would hardly have exercised AP in his decision for overall settlement since they well exceed the overall settlement sum of HK$242,000.00.

92.The more obvious observation that springs from the various projected calculations above is that at least 2 sets of such calculations are under HK$60,000.00. It has not been demonstrated on the material before me there is a good chance that AP will be able to bring R to book beyond HK$60,000.00 for the EC Action.

(c) Investigating themerits of AP's own case

93.Mr Burke asks what else AP could have done because once AP has accepted overall settlement at HK$242,000.00 for the PI Action (inclusive of his claim in the EC Action) upon R's increased payment into court there is no point in continuing with the EC Action. But such submission begs the question why, despite R having paid the EC Payment into court under the EC Action on 19^th October 2005, AP was not prepared to consider settlement of the EC Action until overall settlement of Both Actions following the increased payment into court in the PI Action. AP's reason is that he was not in a position to value his employees' compensation claim pending receipt of the expert medical evidence and the outcome of the proposed further treatment. But in my view the costs consequent on AP's predicament in having to investigate the merits of his own case cannot be laid at R's door if R has made appropriate payment into court.

94.The Form 7 (which assessed 11 days of sick leave and 1% LOC) and the Form 5 (which assessed compensation under sections 9 and 10 of the Ordinance at HK$11,893.00) were issued on 25^th January and 4^th February 2005 respectively. AP did not lodge the Appeal and/or the Cancellation pursuant to sections 18 and/or 16B of the Ordinance within 6 months. In the EC Action, AP did not apply for the Cancellation and the purported Appeal was defective in that AP did not apply for extension of time within which to appeal. Thus the assessments in the Forms 7 and 5 are binding on the parties (Ng Ming Cheong v Mass Transit Railway Corporation CACV No.131/1997 (unreported, 24^th October 1997) and Lam Chi-biu v Mak Kee Limited & anor CACV191/2004 (unreported, 19^th May 2005)) even up to the time when the parties reached overall settlement. In the circumstances, Mr Tsui argues that expert medical evidence is inadmissible and by the time of the overall settlement it was too late for AP to seek extension of time to lodge the Appeal and/or the Cancellation. He therefore submits that the value of AP's claim in the EC Action does not exceed the amount of the EC Payment.

95.But even if the court is prepared to consider a possible Appeal and/or Cancellation, it is uncertain whether there is sufficient basis to demonstrate that the court will grant extension of time for AP to lodge such Appeal and/or Cancellation. I note that AP did not avail himself of the 6-month statutory period to ascertain whether he should lodge the Appeal/Cancellation or to seek expert opinion to assist in making such decision. There is a reminder of the statutory period in English at the bottom of the Form 7 under “IMPORTANT NOTES” and AP confirms in his witness statement that he can read and write English. No explanation has been placed before this court as to why no Appeal/Cancellation has been lodged within the statutory period.

96.Furthermore, Dr Lau and Dr Tsoi (AP's own orthopaedic expert) opined that (a) AP has reached maximum medical treatment, (b) no further treatment is necessary, (c) AP can return to his pre-accident job, (d) there is 1% impairment of the whole man or LOC, (e) 11 days of sick leave was appropriate and (f) AP made submaximal effort during examination.

97.In light of the above, it is unclear whether any application for extension of time (if made) will be successful. I also bear in mind that Dr Tsoi, AP's own orthopaedic expert, discovered a fracture line over the terminal phalanx of AP's right middle finger that he opined was unrelated to the accident. Such opinion does not sit well with Dr Tsoi's record that AP told him there has been no previous injury to the Finger (see also paragraph 14 of AP's witness statement). Mr Burke submits that Drs Lau and Tsoi are only orthopaedic specialists whilst Dr Choa as a neurologist is the relevant expert on nerve injury. But then Dr Lau opines that it is unnecessary for AP to examined by a neurologist and that orthopaedic specialists can speak on the subject.

98.From the above, it suffices to say that AP has not demonstrated a good chance of seeking extension of time to lodge the Appeal/Cancellation or even if such extension of time is granted there will be a good claim in bringing R to book in respect of the EC Action in excess of the EC Payment.

(d) Discretion

99.In my view, what has happened is that AP for reasons unknown (but through no discernible fault on the part of R) has failed to investigate the extent of his residual disability and LOC until after the 6-month statutory period and indeed after the commencement of the EC Action. But in the meantime R has sought to protect itself on costs by making the EC Payment into court. It is difficult to understand why R should bear AP's costs of the EC Action after 19^th October 2005 to facilitate AP to ascertain (a) the merits of his own case for potentially lodging the Appeal/Cancellation or (b) the worth/value of his employees' compensation claim.

100.The above observation is reinforced by Wong Mei Na v Genryoku Sushi Company Limited CACV82/2003 (unreported, 16^th July 2003). In that case, the respondent made payments into court in 2001 and 2002 in respect of the applicant's claim for employees' compensation. The respondent arranged for the applicant to be examined by its medical expert who in turn arranged for the applicant to have a Hess chart investigation. Following receipt of the expert report, the respondent made further payment into court. The applicant rejected the total sum paid into court, but asked for sight of the respondent's expert medical report. It was disclosed and the applicant further asked for the Hess chart and the medical records the respondent obtained from the Hospital Authority. When the respondent obtained the Hess chart, it promptly disclosed the requested documents. The applicant then accepted payment into court and the respondent applied for costs of the proceedings after the last payment into court.

101.Le Pichon JA held at para.19 as follows :

“It is the nub of the applicant's submissions that not only should she have been given a reasonable time within which to accept the payment in, she should also have been provided with discovery to enable her to make that decision without any exposure as to costs. In practical terms, her complaint boiled down to this: that she was entitled to see the Hess chart before making a decision. It will be noted that the Hess chart undermined the opinion of the applicant's own expert. It was equally open to the applicant's expert to arrange for a Hess chart at any time had he considered it necessary. That was not done. …… to hold that the applicant was entitled to this discovery before making a decision would be tantamount to requiring the respondent to pay for post-payment in costs in order to enable the applicant to find out that her own expert's view might be wrong. That cannot be right. Moreover, rule 20(2) is quite clear: as noted above, there is no scope for reading a reasonable time for acceptance into the rule nor for implying a right to discovery before acceptance.”

102.Mr Burke does not challenge the principles in Wong Mei Na's case, but attempts to distinguish them by saying that the case did not involve dual employees' compensation and common law damages claims. I disagree with such submission. Even taking into account AP's dual claims, AP's fundamental proposition is that he was not prepared to consider settlement because without the expert medical evidence he was not in a position to value his claims (eg letters from AP's solicitors to R's solicitors dated 7^th and 14^th September 2005). Overall settlement of Both Actions was only achieved after AP had sight of the expert medical reports of Drs Tsoi and Choa. However, the Court of Appeal in Wong Mei Na's case clearly held that an applicant cannot require a respondent to pay for post-payment in costs to enable him to find out the merits of his claims. This applies even more forcefully in the EC Action because AP's investigation does not depend on any disclosure by R.

103.Mr Burke points out that at the 2^nd call over hearing I have directed AP's solicitors to write to the court on/before 15^th June 2006 to advise on the status of AP's medical treatment. He suggests that AP has acted reasonably in not actively progressing the EC Action until the prognosis of the proposed further treatment is known. In my view, the above directions were given in face of the practical reality that AP only sought expert medical evidence at that stage (and not within the earlier statutory period), so the outcome of the proposed further treatment (if received) will not be known until June/July 2006. But it does not follow that liability for costs will necessarily fall on R, especially when R has made payment into court.

104.Mr Burke next suggests that had AP been a person under disability the court would not have approved any settlement until the prognosis after the further treatment is known, so AP's stance is reasonable. But as Le Pichon JA in Wong Mei Na's case pointed out in para.14, there is no basis for the view that the court is required to exercise any supervisory function where the parties are sui juris and not under any disability.

105.Looking at the totality of the factual circumstances, I do not find it appropriate to disturb the usual costs order and AP will have to bear his own costs as well R's costs in the EC Action from 20^th October 2005. Mr Burke asks me to consider limiting costs to those R incurred solely for the EC Action (eg costs reserved for the 2^nd EC Action call over hearing) and exclude all costs incurred for Both Actions. Mr Tsui acknowledges there is some overlap of costs between the EC and PI Actions, but submits that R is entitled to have such costs taxed herein since they were predominantly incurred for the EC Action. He points out that at the time of the overall settlement the PI Action was only at the stage of service of the writ.

106.In my view, these taxation matters are more appropriately dealt with by the Taxing Master after the bill for costs have been appropriately formulated and the relevant materials placed before him to demonstrate the relevance and necessity of the various items. I do not consider it appropriate to fetter the Taxing Master's discretion at this stage on the limited information before me.

Conclusion

107.I therefore make the following orders :

(a)	the sum of HK$60,000.00 paid into Court by R be paid out to Messrs Burke, Fung & Li, solicitors for AP, subject to the first charge of the Director of Legal Aid;
(b)	R do pay AP's party and party costs in the EC Action (including all costs reserved) up to and including 19th October 2005, such costs to be taxed if not agreed;
(c)	AP do pay R's party and party costs in the EC Action (including all costs reserved) after 19th October 2005, such costs to be taxed if not agreed;
(d)	AP's own costs to be taxed in accordance with the Legal Aid Regulations.

108.It seems to me that AP should have accepted R's proposal on the disposal of costs of the EC Action. If so, the matter could have been resolved by way of a consent summons. AP should therefore bear the costs of the Summons. I therefore grant a costs order nisi that AP do pay R costs of the Summons (including all costs reserved in respect of the Summons), such costs to be taxed if not agreed, and AP's own costs to be taxed in accordance with the Legal Aid Regulations.

Mr P Burke of Messrs Burke, Fung & Li for the Applicant.

Mr S Tsui of Messrs Tsui & Co for the Respondent.