Tse Ngan Heung v. The Ritz-carlton Ltd and Others

cacv 312/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 312 of 2006

(on appeal from HCPI NOs. 565 of 1999, 570 of 2000

and 658 of 2000)

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HCPI 565/1999

BETWEEN

HCPI 570/2000

BETWEEN

HCPI 658/2000

BETWEEN

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(Consolidated pursuant to the Order of the Honourable Mr Justice Seagroatt dated 21^st July 2000)

Before : Hon Rogers VP and Le Pichon JA in Court

Date of Hearing : 4 January 2008

Date of Judgment : 4 January 2008

Date of Handing Down Reasons for Judgment : 15 January 2008

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA:

2.This was an application for leave to appeal to the Court of Final Appeal from the judgment of this court dated 17 July 2007 dismissing the appeal by The Ming An Insurance Company (HK) Ltd (“Ming An”) from the decision of Suffiad J refusing to give further directions for assessment of damage as against The Ritz-Carlton Ltd (“the Hotel”).  The application was refused with written reasons to be handed down later which we now do.

Background

3.This application arises out of a car accident that happened almost a decade ago when a car driven by the second defendant (“Lo”) mounted the pavement and injured two pedestrians (“Tse” and “Chan”, collectively “the plaintiffs”) who brought proceedings for damages for personal injuries.  Lo was a car jockey employed by the Hotel and the car involved in the accident was insured by Ming An.  At the trial in January 2001 on the issue of liability only, Lo but not the Hotel was held liable.  Interlocutory judgment with damages to be assessed was ordered in favour of the plaintiffs against Lo.

4.In November 2001 this court dismissed Ming An’s appeal on liability.  However, pending the appeal, damages were assessed, Ming An having failed in its application to stay the assessment of damages. Final judgment in favour of Chan in the amount of $19,243,576 (inclusive of interest at 2% on PSLA and at half the judgment rate on special damages) was entered against Lo on 7 January 2002 and final judgment in favour of Tse of $1,001,775 (again inclusive of interest on PSLA and special damages) was entered against Lo on 10 January 2002.

5.Notwithstanding the fact that it did not seek to stay the final judgments, Ming An did not settle the amounts due immediately but waited until some 5 months later, on 3 June 2002. On the same day, the plaintiffs assigned their respective claims to Ming An.  The delay in payment of the final judgment sums resulted in post-judgment interest of $592,072.59 having to be paid.  Ming An discharged this liability by payments made between 4 June 2002 and 8 January 2003.

6.On 4 December 2002, the Court of Final Appeal allowed Ming An’s appeal and held the Hotel equally liable with Lo to the plaintiffs.  On 11 December 2002 the Hotel was served with notices under section 9 of the Law Amendment and Reform (Consolidation) Ordinance together with copies of the assignments.  Ming An’s solicitors wrote to the Hotel’s solicitors on the same day stating:

“	We are instructed to demand your clients to make payment of HK$20,218,530 (comprising the two judgment sums) together with interest accrued there on from the respective judgments given on assessment of damages within 10 days of this letter.”

7.The sum demanded was duly paid together with $72,107, being interest on the judgment sums for 16 days from 4 to 19 December 2002 at judgment rate.  Ming An did not consider the payment made sufficient and took out a summons which was heard in April 2003, that being the first of no less than 7 hearings (including this leave application) spanning almost 5 years and involving 3 visits to this court.  In essence, it claimed to be entitled to

(1)	the sum of $592,072.59 being post-judgment interest paid to the plaintiffs; and
(2)	financing costs from 3 June 2002 until 4 December 2002 in respect of the $20 million odd paid to the plaintiffs.

8.Suffiad J considered that Ming An was attempting to gain a windfall by pursuing the matter in the way it had done.  At the appeal hearing, this court made plain that it would have difficulty granting any relief that would enable Ming An to reap a profit.  Ming An’s stance is recorded in §§ 18 - 21 of the judgment: it rejected the Hotel’s offer which, broadly speaking, had been made on a restitutionary basis such that Ming An would not be ‘out of pocket’ although Ming An (up to and including the last appeal hearing in mid-2007) had resolutely refused to bring a restitutionary claim.

9.On the merits of the appeal, I considered that Ming An’s intended assessment faced an insurmountable obstacle inasmuch as it was brought in its capacity as assignee of the plaintiffs when the plaintiffs’ claim against Lo had been fully satisfied.  In particular, Lord Hope’s speech in Jamieson v Central Electricity Generating Board [2000] 1 AC 455 at 471H-472B was cited for the proposition that satisfaction of a plaintiff’s claim by any one of several tortfeasors extinguishes the plaintiff’s cause of action for damages against all.  As to the sum of $592,000 odd paid by way of post-judgment interest, that was also not recoverable because Ming An’s claim was not a restitutionary claim and, in any event, I took the view that the liability to pay that sum was self-induced.

The application

10.The leave application was made under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  The only statement of principle raised in this case is the Jamieson principle as stated in the preceding paragraph.  However, none of the questions posed in the rather complicated notice of motion seeks to challenge the correctness of that principle.  Even if it were to be suggested that the principle has been misapplied, that would not give rise to a question of great general or public importance.  Therefore the question posed in paragraph 5 of the notice of motion does not arise.

11.I am unable to follow the relevance of the question of the Hotel being bound by the assessments which appears to be the basis of the series of questions posed in paragraph 7.  The payment made by the Hotel to Ming An as assignees of the plaintiffs on 19 December 2002 was qua tortfeasor and brought about the satisfaction of the plaintiffs’ claims.  Pausing here, Mr Leung who appeared for Ming An sought to argue that the final judgment had not been fully satisfied by the Hotel’s payment inasmuch as the payments made had failed to include interest on special damages of $1.8 million odd in the case of Chan and $50,000 odd in the case of Tse.  I agree with Mr Bharwaney that the suggestion that there can be pre-trial interest on special damages continuing beyond the date of final judgment is a concept that is alien to personal injuries litigation.  After final judgment has been entered, there can only be post-judgment interest which is statutory.

12.With the extinguishment of the plaintiffs’ claims upon satisfaction, there can be no question of their being in a position to enter any final judgment.  Ming An, being there as assignees, can be in no better position and so the questions posed in paragraph 9 do not and cannot arise.

13.In any event, the sequence of events occurring in the present case is somewhat unusual and questions posed that depend on the recurrence of the exact same facts are not matters of great general or public importance.  It is case-specific.  In my view, the questions posed in paragraphs 7 and 9 of the notice of motion are such questions.

14.The MIB Agreement and the obligations imposed on Ming An thereunder ceased to be relevant after the legal assignments of the judgments to Ming An whose application for the intended assessment was made as assignees of the plaintiffs.

15.I began the judgment from which leave to appeal is sought endorsing the observations made by Seagroatt J as long ago as August 2002 which I considered apt to describe Ming An’s relentless pursuit of its unmeritorious claims since April 2003 involving seven court hearings.  It is unproductive satellite litigation and it is to be regretted that no heed was taken of the court’s remarks.

Mr Mohan Bharwaney, instructed by Messrs Winnie Mak, Chan & Yeung, for the 1^st Defendant/Respondent

Mr Raymond Leung, instructed by Messrs Ip Kwan & Co., for the 3^rd Defendant/Applicant