Martin Jacques and Another v. Hospital Authority

HCPI 1162/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1162 OF 2002

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BETWEEN

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Before : Hon Suffiad J in Chambers

Date of Hearing : 1 June 2007

Date of Ruling : 19 July 2007

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RULING

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1.This is an application by the defendant for security for costs against the plaintiff, Martin Jacques under Order 23, rule 1 of the Rules of High Court, on the grounds that Mr Jacques is ordinarily resident out of jurisdiction.

2.The defendant seeks security for costs in the sum of HK$3.4 million.

3.This is a fatal accident claim brought by the 1^st plaintiff, Martin Jacques, as the executor of the estate of his deceased wife, Harinder Kaur Veriah (“the deceased”), and on behalf of the dependants of the deceased.

4.The 2^nd  plaintiff is also Martin Jacques claiming in his personal capacity for nervous shock arising from the death of the deceased.

Background

5.The deceased was born in December 1966 and was qualified as a solicitor in the United Kingdom (“UK”).

6.In 1996, the deceased married Martin Jacques, who was born in October 1945 and, at the time of their marriage, was 51 years old.

7.A baby boy, Ravi Jacques, was born to the deceased and Martin Jacques on 30 August 1998.

8.In November 1998, the deceased was seconded to a solicitor firm in Hong Kong, Messrs Lovell White Durant.  Martin Jacques and Ravi Jacques followed the deceased to live in Hong Kong being financially dependent on the deceased.

9.The deceased had a known history of epilepsy.  While in Hong Kong, the deceased suffered a seizure at about 1.00  a.m. on 1  January 2000 and was admitted to the Ruttonjee Hospital.  The deceased had already regained consciousness upon admission.

10.The deceased had another seizure at about 8.40  a.m. on 2 January 2000 and intravenous injection of Diazepam (Valium) was given upon the instructions of a doctor.  28% of oxygen was administered.

11.Shortly after 9.05 a.m., respiratory and/or cardiac arrest was observed.  Oxygen was increased to 50% by the nurse.

12.The doctor was informed and attended the deceased shortly after 9.05  a.m.  The first shock for defibrillation was delivered at 9.23 a.m.

13.Resuscitation effort having failed, medical intervention was abandoned at 10.30 a.m. and the deceased died.

14.A coroner’s inquest was held as to the death of the deceased in Hong Kong and after a 5-day hearing in November 2000, a verdict of natural death due to Sudden Unexplained Death in Epilepsy (SUDEP) was returned.

15.Subsequently another inquest was held in the UK where Her Majesty’s Coroner returned an open verdict with no conclusion as to the cause of death of the deceased.

16.The plaintiff claims that the defendant was negligent in that :

(a)      the deceased was not sufficiently ventilated.  100% oxygen ought to have been given at 8.40 a.m. (as opposed to 28%);

(b)     the lack of sufficient supplemental oxygen caused or contributed to the deterioration in the deceased’s condition resulting in her death;

(c)     defibrillation ought to have been performed without delay when the deceased was in cardiac arrest at about 9.05 a.m. or shortly thereafter, but the first shock was not delivered until 9.23 a.m.; and

(d)     the delay in defibrillation caused and/or contributed to the deceased death which was avoidable and unnecessary.

17.The defendant on the other hand, challenge and dispute the cause of death as alleged by the plaintiff.  The alleged negligence is also disputed and challenged.

18.Without going into the details of the defence case, it is sufficient to say that there are disputed expert evidence between the parties and it is sufficient at this stage merely to say that the plaintiffs herein has a bona fide claim and the defendant has a bona fide defence.  Who will succeed on the issue of liability can only be determined after hearing all the evidence and submissions at trial.

19.It is also not in dispute that Martin Jacques is now living in the UK and therefore ordinarily resident outside Hong Kong.

Plaintiff’s opposition

20.The plaintiff opposes the application for security for the following reasons :

(a)      the application is late;

(b)     present and future costs are covered by Legal Aid Certificate;

(c)     amount of security claimed is excessive; and

(d)     part of the costs claimed should have been paid for as work done in the Coroner’s Inquest.

21.It can be seen that (c) and (d) above really relate to the amount of the security and in that sense is linked with the issue of the plaintiff’s lack of means caused by the defendant which has also been raised.

Late application

22.I can see little merit in this point.

23.The plaintiff’s Writ herein was issued on 18 December 2002, over two years after the Coroner’s verdict in this matter.  Even then, it was only served on the defendant almost a year later, in early December 2003.  The statement of claim followed on 18 December 2003.

24.In June  2004, the plaintiff applied for a split trial.  That application was opposed by the defendant.  Arguments were heard and the application for split trial was dismissed in September 2004.

25.After the application for split trial was dismissed, there was inaction on the part of the plaintiff for some 18 months until May 2006 when the plaintiff served a Notice of Intention to Proceed.

26.In June 2006, the defendant requested for security for costs from the plaintiff by letter to the plaintiff’s solicitors.  After some exchange of correspondence on the matter between solicitors, and when no agreement could be reached between them, the present application was issued by the defendant in March 2007.

27.Bearing in mind that the accepted practice is that the order for security may be made at any stage of the proceedings (see Re Smith (1896) 75 L.T. 46), and the fact that the plaintiff has not been prejudiced by the application being made when it was made, I am not of the view that the timing of this application for security is such that should cause me to exercise my discretion to disallow the application for security.

28.I also note the words of Rogers VP in the case of Sunchase International Group (China) Ltd & Ors v. Vincor Group of Companies (Investment) Ltd & Ors [2004] 1 HKLRD 731 at 734, where he said :

“… If the plaintiffs have a good claim, it makes no difference whether the security for costs is asked for at the beginning or later on.”

Legal aid

29.A Legal Aid Certificate was granted in this matter on 22  September 2006, but it was not granted to Martin Jacques in his personal capacity.

30.It was submitted by the defendant that the granting of legal aid to Ravi Jacques in this case would not avail the defendant to recover costs which would be awarded against either the 1^st or 2^nd plaintiff in this case since the plaintiff is Martin Jacques, in his representative capacity as the 1^st plaintiff, and in his individual capacity as the 2^nd plaintiff.  In this respect, it was submitted by the defendant that section 16C of the Legal Aid Ordinance would not bite since a court would not make an order for costs against Ravi Jacques.

31.The entire submission by the defendant in this respect was based on the fact that legal aid was granted to Ravi Jacques, which, unfortunately was an over simplistic way of putting it.

32.When the Legal Aid Certificate is looked at, it is worded as follows :

“Upon considering the application made by… Mr. JACQUES Martin for JACQUES Ravi Harinder Veriah… to be granted legal aid under the Legal Aid Ordinance, I CERTIFY that the said Mr. JACQUES Martin for JACQUES Ravi Harinder Veriah… is entitled to legal aid under the said Ordinance.

Legal Aid has been granted for the purpose of continuing HCPI No. 1162 of 2002, but limited to discovery obtaining of expert evidence and other matters in preparation of the case for trial, and I have assigned Mr. BURKE Patrick Michael of Messrs Burke, Fung & Li to act as Solicitor for the aided person.”

33.On the wording of the Legal Aid Certificate, it is quite clear that legal aid has been granted to Martin Jacques in his representative capacity in representing Ravi Jacques in this matter, albeit not to Martin Jacques in his personal capacity.

34.It follows therefore that any costs ordered against the 1^st plaintiff in so far as they relate to the claim of Ravi Jacques during the period covered by the Legal Aid Certificate will be borne and paid by the Director of Legal Aid under section 16C.  In particular, sub-section (3) of section 16C states as follows :

“Where subsection (1) limits the liability for costs of an aided person such limitation shall extend—

(a)   where the aided person has been granted legal aid in a representative or fiduciary capacity, to any other person on whose behalf the aided person is acting and for the benefit of any fund held for such other person; and

(b)   where the aided person has been granted legal aid as the guardian of an infant, to the infant.”

35.Moreover, that position has been confirmed by the Director of Legal Aid in a letter dated 23 March 2007 to Messrs Burke Fung & Li, the plaintiff’s solicitors, in which it is stated by the writer (being the same Legal Aid Counsel who issued the Legal Aid Certificate), on behalf of the Director of Legal Aid, as follows :

“We write to confirm that the Director of Legal Aid will be responsible for costs ordered against the 1^st Plaintiff in so far as they relate to the claim of Ravi, during the period to which the legal aid certificate relates.  Costs incurred in relation to the claim of Mr. Jacques either in the name of the 1^st Plaintiff and/or the 2^nd Plaintiff will not be borne by the Director in any circumstances.”

36.In the circumstances, I am of the view that a large part of costs in this case, certainly much if not all of it relating to the issue of liability, will have been covered by the Legal Aid Certificate.

37.Even in the case of the 2^nd plaintiff, to the extent that it relates to the issue of liability of the defendant, which overlaps with the issue of liability with the case of the 1^st plaintiff, would likewise be covered by the Legal Aid Certificate granted.

38.However the Legal Aid Certificate would not cover two main areas which are :

(a)      those costs expended before the issue of the Legal Aid Certificate on 26 September 2006; and

(b)     costs in relation to the issue of quantum relating to the 2^nd plaintiff.

Financial ability of Martin Jacques

39.The current assets of Martin Jacques is set out initially in his witness statement exhibited to the 4^th Affidavit of Patrick Michael Burke as “PMB-8”.  Pursuant to the undertaking given at the hearing of this matter, the contents of that witness statement has now been incorporated into an affidavit deposed to by Martin Jacques.

40.It is dealt with in paragraphs 8 to 11 therein.

41.In summary, Martin Jacques owns the leasehold of the apartment in the UK where he lives with his son and the nanny and which is estimated to be worth £1.4 million subject to the mortgage of £40,000.

42.He also has liquid assets and investments in unit trusts, PEP’s and ISA’s with a total value of £285,000.

43.He has a pension investment with a projected value of £8,000 per annum on retirement at age 65.

44.His current income is approximately £11,000 per annum in providing pieces for the Guardian newspaper.  He also receives an equivalent income from the deceased’s insurance policy.

45.Martin Jacques states that he is now 62 and not in good health.  His son is attending school in the UK.

46.Given his circumstances he is reluctant to raise a further mortgage on his home or part with a large part of his present money assets which are the main source of generating income for him and his son at present.

Defendant’s Skeleton Bill of Costs

47.Defendant has exhibited and produced a Skeleton Bill of Costs which shows that about $940,000 costs (both disbursement and profit costs) was expanded by the defendant from July 2002 to date.  The future costs was estimated to be about $2.5 million.

48.Undoubtedly that skeleton was prepared on the basis that the Legal Aid Certificate would not cover any part of the defendant’s costs in this matter.

49.In the light of my ruling above as to the exact of the Legal Aid Certificate granted in this case, the Skeleton Bill of Costs is of little assistance in this application.

Decision

50.Giving effect to all the matters stated above, and in particular the fact that the Legal Aid Certificate would cover much, if not all, of this case on the issue of liability from the time it was issued, and the fact that it would only be the costs before the Legal Aid Certificate was granted as well as a limited part of the 2^nd plaintiff’s claim relating to the issue of quantum which would fall outside that Legal Aid Certificate, it would be sufficient to make an order for security for costs by Martin Jacques in the amount of HK$250,000.

51.This amount is intended to give some security for the defendant’s costs incurred before the grant of the Legal Aid Certificate as well as those costs relating to the 2^nd plaintiff not covered by the Legal Aid Certificate.

52.Given the financial ability of Martin Jacques, the amount of security ordered should not in any way stifle the plaintiff’s claim.

53.In making this order for security, I have not overlooked the fact that at the moment, the Legal Aid Certificate issued is stated to be limited.  However, from experience that is the normal way in which the Director of Legal Aid operates.  It is usual that as the case progresses a legal aid certificate will be extended in scope, ultimately to cover even the trial if it reaches that stage.

54.Should it happen in this case that the Legal Aid Certificate issued will not be extended or be discharged at a later time, there is nothing to stop the defendant to make a further application for greater security.

55.The above amount of security ordered is made on the assumption that the legal aid already granted will be extended in due course ultimately to cover the trial of this matter.

The order

56.Accordingly, there will be an order as follows :

(a)      The plaintiffs do within 21  days provide security for the defendant’s costs in this Action in the amount of HK$250,000.

(b)     All further proceedings in relation to this action be stayed pending the provision of such security by the plaintiffs.

Costs

57.Unless the parties can reach agreement as to the costs of this application in the light of my ruling above, I will need to hear them on costs.

Mr Raymond Leung, instructed by Messrs Burke, Fung & Li, for the 1^st and 2^nd Plaintiffs

Mr Alfred K.C. Fung, instructed by Messrs Johnson, Stokes & Master, for the Defendant