Lo Ka Chun v. Lo To and Another

IN THE COURT OFAPPEAL

1985 No. 44
(Civil)

BETWEEN

Coram: Roberts, C.J., Cons, V.P. & Fuad, J.A.

Date of Hearing: 15th December, 1986

Date of Judgment: 2 January 1987

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JUDGMENT

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[Costs - taxation - whether right to immediate taxation and payment - use of slip rule.]

Roberts, C.J.

Background

1. On the 20th February, 1985, Clough, J. made the following Order -

“(1) The Plaintiff is applications by Summonses both dated 2nd July, 1984 for leave to serve on the 1st and 2nd Defendants a new statement of Claim and ancillary directions and for leave to amend the Writ of Summons be dismissed with costs with certificates for two Counsel;

(2) The Action herein be dismissed with costs save that no order as to costs of the 1st Defendant’s appeal against the Orders of Master Clay dated 17th January, 1984 and 1st February, 1984 and that the Orders for costs below do stand;”

2. The plaintiff appealed and succeeded to the extent indicated in the Order of this court, dated 16^th October, 1985, which was drawn up in the following terms -

(1) The Plaintiff’s appeal be allowed to the extent that:

(i) the Plaintiff to have leave to serve the Statement of Claim (9th version) in the form annexed to the said Notice of Appeal with the exception of Paragraph 36, any references thereto on the Pleadings and Prayer 7, which should all be struck out;

(ii) The said Order of the Honourable Mr. Justice Clugh be set aside but his Order as to costs do stand.

(2) Leave be given to the Plaintiff to amend the Writ of Summons in terms of Paragraph (1)(i) hereof.

(3) The Plaintiff to serve the Statement of Claim referred to in paragraph (1)(i) hereof on the 1st Defendant and the 2nd Defendant within 7 days from the date hereof.

(4) The 1st Defendant and the 2nd Defendant to serve their Defence within 10 weeks thereafter.

(5) The costs of this Appeal be Plaintiff’s costs in the cause.”

Use of the Slip Rule

Counsel for the plaintiff by motion under Order 20 rule 11 of the Rules of the Supreme Court, commonly known as the Slip Rule, sought to correct what were said to be ambiguities in the Order of 16^th October.

3. We note that the use of the Slip Rule power is limited to rectification of an accidential slip or omission and does not entitle a court to reconsider a final and proper order once it has been perfect6ed or to make variations of a significant nature to it. See R. v. Cripps, Ex parte Muldoon & Others[1].

Supposed “errors”

4. Counsel for the plaintiff by argued that paragraph 1(ii) of the Order of 16th October was ambiguous in two respects -

(a) it did not make it clear whether or not paragraph (2) of Clough, J's. Order "that the action herein be dismissed with costs” would still stand in respect of the costs of the action, since the plaintiff had succeeded on the appeal in having; the action restored;

(b) it did not make it clear whether paragraph (1) of Clough, J’s. Order, the effect of which was to provide that costs payable by the plaintiff were to be taxed and payable forthwith would still stand, or whether such taxation and payment should await the outcome of the action as a whole.

First “error”

5. Counsel for D.2 argued before us that there was no ambiguity in our Order and that it provided, as Clough, J’s. Order had done, for the payment of costs by the plaintiff both in relation to the dismissal of the plaintiff's applications and for the general costs of the action.

6. However, counsel for the plaintiff and counsel for D.1 were agreed that since the plaintiff had succeeded 3 on the appeal, in having the decision to dismiss the action set aside, it must follow without more that the award of costs which followed the dismissal must lapse, leaving the general costs of the action to abide its result and be dealt with at a later stage.

7. Despite this concession by counsel for D.1, D.1's solicitors presented their bill for taxation on the oasis that the Order of 16th October was in such terms that the general costs of the action, as opposed to those of the applications, were also intended to be paid by the plaintiff.

8. The relevant portion of this court's judgment on costs was in the following terms -

"In considering the question of costs, we take into account the chequered history of the pleadings and the manner in which the plaintiff has changed his grounds or expanded or amended them.

Obviously a plaintiff ought not to be punished for the vagaries of his legal advisers if, in the end, he has placed triable issues before the court. But this must not be allowed to bear unreasonably upon the defendant, nor imposed upon him costs which he would not have incurred if the plaintiff's case had been pleaded much earlier in the manner in which it now stands.

The judge ordered that the costs of the proceedings before him in January and February should be paid by the plaintiff.

The history of this matter persuades us that we should not disturb that order, even though the plaintiff has largely succeeded in the appeal.

The costs of the appeal shall be plaintiff's costs in the cause.

Statement of Claim to be served within 7 days. Defence to be served within 10 weeks thereafter.”

9. The reference in the third paragraph of the passage quoted to “the costs of the proceedings before him in January and February should be paid by the plaintiff” is clearly a reference to the applications which were then before the judge. We are, therefore, satisfied that we intended, by stating that Clough, J’s. Order as to costs should remain, to refer to the costs involved in those applications and not to the general costs of the action, which should be taxable and payable in the usual manner at the conclusion of the action.

Time of payment

10. The effect of Clough, J’s. Order, since at that stage he was striking out the action, was that the costs awarded against the plaintiff would have been taxable and payable forthwith. It is suggested that our Order, as drawn up, is unclear as to when costs shall be taxed and payable.

11.According to notes produced by counsel, this matter was raised at the conclusion of the hearing before us, by counsel for D.1, who asked if costs were still to be payable forthwith.

12. Our recollection of this aspect of the matter is reasonably clear. We do recall that counsel asked whether costs should be payable forthwith and that we intimated that costs should be payable in the normal course of events, that is to say, at the conclusion of the action.

13. Because Clough, J’s. Order had been based on a dismissal of the action, it is understandable, perhaps, that when we ordered that his Order for costs should not be disturbed, solicitors for the defendants should have taken the view that it was not be disturbed in any respect, including that of immediate taxation and payment.

14. We believe that we resolved this doubt at the time of the appeal and clearly indicated that costs should be taxed and payable at the conclusion of the restored action.

15. Our Order, therefore, needs no alteration since our observations should make it clear as to what was intended.

16. There will be no order as to costs in relation to this motion under the Slip Rule.

Mr. F. Ferris, Q.C. with Mr. A. Neoh and Mr. J. Lam (S.K. Wong & Co) for Plaintiff/Appellant

Mr. N. Thomas, Q.C. with Mr. Ronny Wong (T.S. Tong & Co.) for 1st Defendant/1st Respondent

Mr. Henry Fan (Denton, Hall, Burgin & Warrens) for 2nd Defendant/2nd Respondent.

[1]  [1984] 1 Q.B. 686