Parveen Tahira v. Paul Y. - Seli Joint Venture

DCEC 493/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 493 OF 2000

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IN THE MATTER OF AN APPLICATION BETWEEN:

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ECC/LA 13300/2000 (DP22)

DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN

[Consolidated by Order of H.H. Judge Carlson dated 28^th December 2001
and de-consolidated by Order of H.H. Judge Ng dated 18^th day March 2005]

Coram: Deputy District Judge K.W. Wong in Chambers

Date of written submission by the Respondent: 12^th & 22^nd February, 5^th March 2007

Date of written submission by the 2^nd Applicant: 16^th February & 5^th March 2007

Date of Ruling: 15^th March 2007

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RULING

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Background

1.On 2^nd January 2007, three applications, including the application of the 2^nd Applicant (“the Applicant in DCEC 30/2001”) to vary certain costs orders made by me in my judgment handed down on 5^th July 2006 (“costs variation application”) were heard by me. By the costs variation application, the 2^nd Applicant seeks to, inter alia, hold the Respondent liable for all the 2^nd Applicant’s costs incurred in proving the deceased’s identity vis-à-vis the 1^st Applicant (“the Applicant in 493/2000”) and that the costs between the 2^nd Applicant and the Respondent be on common fund basis.

2.The Respondent did not contest the basis of taxation being on common fund. It only contested liability for the costs of proving the identity of the deceased. After hearing submissions of parties, I ruled in favour of the Respondent and refused the 2^nd Applicant’s application. My written ruling was handed down on 9^th February 2007.

3.As stated in paragraph 5 of my said ruling, counsel for the two parties had indicated to me that all costs incurred by the 2^nd Applicant against the Respondent after the date of judgment up to and inclusive of the date of order (i.e. the date of my ruling on 9^th February 2007) be paid by the Respondent. To that effect Mr. Wright, counsel for the 2^nd Applicant submitted a hand-written draft which he said were proposed directions agreed by the parties. Mr. Sakhrani, counsel for the Respondent, confirmed to be the case. Necessarily, such agreement is wide enough to cover the costs of the costs variation application: see paragraph 16 of my said ruling. Accordingly, even though the Respondent was successful in substance in opposing the costs variation application, in order not to upset the agreement between the parties through counsel, I make the following order in paragraph 18(ii) of my said ruling:

“the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application, from the date of judgment up to the date hereof, with a certificate for this costs variation application, on a common fund basis, to be taxed if not agreed.”

4.It is this order that triggers off a series of written submissions from the parties concerned.

Re-consideration of the Costs of the Costs Variation Application

5.On 12^th February 2007, Deacons, solicitors for the Respondent, wrote in submitting that the parties had not intended nor agreed that the proposed orders submitted by Mr. Wright should cover the 2^nd Applicant’s costs variation application. In view of such allegation, which apparently contradicted the hand-written proposal handed to the Court during the hearing on 2^nd January 2007, I directed that the 2^nd Applicant’s position be ascertained in order to know whether there had been a slip of the parties. By a letter dated 16^th February 2007, Burke, Fung & Li (“BFL”), solicitors for the 2^nd Applicant, also confirmed that there had been no agreement that the Respondent would shoulder the costs of the costs variation application. Both parties agree and urge the Court to re-consider the costs of the costs variation application. 

6.On 28^th February 2007, I directed whether the parties agreed to vary paragraph 18(ii) of my said ruling to the following:

i) save and except the costs of and occasioned by the costs variation application, the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application from the date of judgment up to the date hereof [i.e. the date of ruling], on a common fund basis to be taxed if not agreed;

ii) costs of the costs variation application be re-considered by the Court;

iii) such re-consideration be without a hearing.

7.By two letters both dated 5^th March 2007 respectively from solicitors for the 2^nd Applicant and the Respondent, they basically agreed to the above.

My Re-consideration

8.The reasons for rejecting the 2^nd Applicant’s application have been set out in my said ruling and I do not intend to repeat the same herein. Suffice it to say that I see no merit in the substantive application of the 2^nd Applicant and see no reason why the usual rule of costs to follow the event should be departed from. I have read the further submission by BLF in their letter of 5^th March 2007 but do not consider the submission persuasive. I consider it unfair to suggest that Deacons have to make proposal for a variation of the costs order sought by the 2^nd Applicant. The fact that the 2^nd Applicant is out of the jurisdiction perhaps explains why BFL have difficulty in taking instruction but certainly it does not excuse the 2^nd Applicant’s duty to come up with his proposed directions. My judgment was handed down on 5^th July 2006. It is not until early 2007 that the costs variation application was heard. BFL should have more than sufficient time to take instruction from the 2^nd Applicant. In any event it is the 2^nd Applicant’s application and the onus remains on the 2^nd Applicant to propose how my original orders are to be varied.

9.As the parties concerned have failed to appreciate their proposed agreed directions wide enough to cover the costs variation application, and thus making it necessary for the parties to come back again for further directions, it is fair that there be no order as to costs between the parties for this re-consideration application.

10.In the circumstances, I make the following orders:

i)     paragraph 18(ii) of my said ruling dated 9^th February 2007 be varied to the following:

a)     save and except the costs of and occasioned by the costs variation application, the Respondent do pay the 2^nd Applicant all costs incurred by the 2^nd Applicant in the 2^nd Application from the date of judgment up to the date hereof [i.e. the date of my said ruling on 9^th February 2007], on a common fund basis to be taxed if not agreed;

b)    the 2^nd Applicant do pay the Respondent costs of and occasioned by the costs variation application with certificate for counsel, to be taxed if not agreed;

ii)     there be no order as to costs between the 2^nd Applicant and the Respondent concerning their application to me for re-consideration of the costs of the costs variation application; and

iii)    the 2^nd Applicant’s own costs in the application for re-consideration of the costs of the costs variation application be taxed in accordance with the Legal Aids Regulations.

Burke Fung & Li (assigned by DLA) for the 2^nd Applicant in the 2^nd Application (DCEC 30/2001)

Deacons for the Respondent in both the 1^st & 2^nd Applications