Mok Lai Chun v. Everwise Investment Ltd and Another

CACV 323/2006 & CACV 420/2006

CACV 323/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 323 OF 2006

(ON APPEAL FROM LDBM NO. 89 OF 2005)

______________________

BETWEEN

______________________

AND

CACV 420/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 420 OF 2006

(ON APPEAL FROM LDBM NO. 89 OF 2005)

______________________

BETWEEN

______________________

(Heard Together)

Before : Hon Tang VP, Sakhrani J & Reyes J in Court

Date of Hearing : 15 November 2007

Date of Judgment : 19 November 2007

______________________

J U D G M E N T

______________________

Hon. Reyes J:-

1.The facts have been set out in our Judgment delivered on 19 January 2007.  Having delivered that Judgment, we invited Ms. Mok’s solicitors to show cause why they should not be made to pay some or all of the costs of the appeal and related matters personally. 

2.Evidence on this aspect of costs was filed by the solicitors and by Mr. Chung Kin Wah (Ms. Mok’s son).  Ms. Mok had authorized Mr. Chung to act on her behalf.  At all times, solicitors received their instructions from Mr. Chung.

3.There is a measure of common ground in the affidavit evidence filed by the solicitors and Mr. Chung.  That evidence shows that Mr. Chung was advised by the solicitors on a number of occasions that the appeal against Judge Yung’s Orders was highly likely to succeed.  In particular, Mr. Chung was told that any award of damages against Everwise did not run with the land and could not bind the Intervener.  Mr. Chung was also told of the need to join the Intervener as a party.

4.Unfortunately, despite such repeated advice, Mr. Chung instructed the solicitors to contest the appeal.  I do not say this by way of any criticism of Mr. Chung.  As a layman, having succeeded in obtaining orders against the Intervener from Judge Yung, he may not have fully appreciated the prospects of the Intervener succeeding on appeal.

5.The test under RHC Order 62 Rule 8 for any direction that solicitors pay costs personally is a stringent one.  It is not enough to show mere (as opposed to gross) negligence.  A solicitor must instead be shown to have caused costs “[to be] incurred improperly or without reasonable cause or [to be] wasted … by any other misconduct or default”. Some manifestation of professional misconduct is required, such that a solicitor may be said to have fallen short of his duty to the Court.

6.Given the advice to Mr. Chung from his solicitors and Mr. Chung’s instruction to proceed, I cannot say that there has been professional misconduct here.

7.In his Skeleton, Mr. Chung has referred to his solicitors’ failure to provide “a good bundle of chronology”.   He has suggested that his solicitors failed to stress delay by the opposing parties in arranging for an inspection of Ms. Mok’s premises.  Indeed, Mr. Chung contends that the issue of inspection should have been dealt with more promptly by his solicitors.  He has also mentioned video evidence which he believes ought to have been of help to the Court, but which has not been presented by his solicitors.  He submits finally that his solicitors’ alleged omissions and delays may have affected the decision of this Court on the Intervener’s appeal.

8.Having carefully considered Mr. Chung’s submissions, I do not think that the matters to which he has drawn this Court’s attention would have affected our previous Judgment nor what I have just said about Order 62 Rule 8. 

9.Even if it is assumed (without necessarily accepting) that the matters to which Mr. Chung refers are valid, they would not affect the stringency of the test under Order 62 Rule 8.  In all the circumstances, this is not a case which meets the test in Order 62 Rule 8.  Accordingly, I would not make an Order that solicitors pay any or all of the costs personally.

10.I would make no order on the costs of the proceedings to show cause.

Hon Sakhrani J:

11.I agree.

Hon Tang VP:

12.I also agree.

Mr Robert Y H Pang, instructed by Messrs Gloria Chan & Co., for the Applicant

Applicant in person, Mok Lai Chun, represented by her son, Mr Chung Kin Wah, Kinny