Yeung Shui Ming v. Gong Kong Sang and Another

HCPI 290/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 290 OF 2005

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Hearing: 6 June 2008

Date of Decision on Costs: 6 June 2008

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DECISION   ON   COSTS

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Introduction

1.This is a decision on costs.  The background leading to this decision can be summarized as follows.

2.The plaintiff was injured in a traffic accident which occurred in March 2002.  By January 2007, he has received $433,715.62 from his former employer by way of periodical payments paid under the Employees’ Compensation Ordinance (Cap. 282).

3.In the meantime, the plaintiff commenced this action in March 2005.  The defendants admitted liability; on 31 October 2006, interlocutory judgment was entered in the plaintiff’s favour with damages to be assessed.

4.This action proceeded to an assessment of damages the hearing of which took place on 19 and 20 December 2007 and 29 February 2008.  In a Judgment handed down on 18 April 2008, the plaintiff was awarded $237,713.80 with interest.  But, as admitted by the plaintiff, the sum of $433,715.62 should be deducted from the said award.  The net result is that the plaintiff has recovered nothing of substance from the exercise.

5.The defendants argue today the costs of and occasioned by the assessment of damages should be paid by the plaintiff.  Those costs should include those incurred up to 31 October 2006 (for example, the preparation of medical expert reports) and all costs since 1 November 2006 (the costs of this action in relation to liability has already been dealt with in the order dated 31 October 2006).

6.On the other hand, the plaintiff contends that the appropriate costs order should be:-

(a)     the costs of this action up to 22 November 2007 be paid by the defendants;

(b)    those costs since 23 November 2007 be paid by the plaintiff.

The contention is based on the payment-into court (of $350,000) made by the defendants on 22 November 2007.

7.The purpose of an assessment of damages is to ascertain the amount (if any) which a claimant is entitled to receive.  The “event” of such an exercise is therefore whether it results in an award being made in the claimant’s favour.  If, for any reason, no such award is made, ordinarily the claimant is the unsuccessful party.

8.The usual rule regarding costs in civil litigation in the High Court is that they should follow the event: RHC Ord. 62 r. 3(2) and Hong Kong Civil Procedure 2008, para. 62/3/2 and 62/3/3.  There is no want of authority but if any is needed, the decision in Wealthy Plus v. Lai Man Ho and Another [2001] 4 HKC 691 is an example.  The relevant part of the judgment reads:-

“In Roache v. News Group Newspaper Ltd (19 November 1992, Sir Thomas Bingham, unreported) set out that the correct approach as follows:

The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won?  Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish?  Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?

That was cited by Simon Brown LJ in Butcher v Wolfe [1999] 1 FLR 334 at 344G. … ” (emphasis supplied) (p. 709).

9.If there had not been any payment-in by the defendants, the question of who has “won” in the assessment of damages would have been obvious; the plaintiff having failed to obtain any net monetary award in his favour is the unsuccessful party.  No matter of principle is involved in the assessment.

10.I do not consider the fact of a payment-in should improve the plaintiff’s position.  The most that can be made out of a payment-in is that the defendants were in fear that an award of not more than $350,000 may be made by the court.  They wanted to protect themselves against costs should that in fact happen.  The plaintiff has not been able to explain why a defendant who makes such a tactical move should be treated less favourably than one who does not when entitlement to costs fall to be considered.  The reason for the inability is simple: there is no merit in the argument.

11.During today’s hearing, and for the first time, the plaintiff argues that the periodical payment totalling $433,715.62 is “temporary” in that the employees’ compensation claim has not been concluded (the possibility of the repayment of part of that sum was mentioned).  For the following reasons, it is inappropriate to place much weight on this point:-

(1)     all along the plaintiff’s case has been advanced on the footing that the whole sum should be given credit (see, for example, the various versions of statement of damages (the latest being the one dated 15 February 2007));

(2)     the plaintiff is unable to tell when that claim will be concluded;

(3)     most importantly, when enquired, the plaintiff does not seek the adjournment of this matter but chooses to have it disposed of today.

12.By reason of the above matters, I agree with the costs order proposed by the defendants (which should include any reserved costs).  Costs are to be taxed on the High Court scale if not agreed.

13.In coming to the above conclusion, I note that the outcome of the assessment of damages resulted substantially from a finding that the plaintiff has grossly exaggerated his injuries and inflated his claims (which involves an adverse finding about his credibility and reliability).  That fact is consistent with a costs order against the plaintiff.

14.The parties are in agreement that the costs of this application are to follow the event (that is, be paid to the defendants).

15.The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap. 91A).

Ms Doris To, instructed by Messrs Au Yeung, Cheng, Ho & Tin, assigned by DLA, for the Plaintiff

Mr Walker Sham, instructed by Messrs Tang & So, for the Defendants