Keung Shing v. Tang Lim Kwong

HCPI 172/2002, HCPI 74/2003 & HCPI 284/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 172 OF 2002

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AND

PERSONAL INJURIES ACTION NO. 74 OF 2003

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AND

PERSONAL INJURIES ACTION NO. 284 OF 2008

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(Heard Together)

Before : Hon Suffiad J in Chambers

Dates of Written Submissions : 8, 9 and 14 April 2009

Date of Ruling on Costs : 29 April 2009

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RULING  ON  COSTS

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1.This is the costs ruling on the application for consolidation of the above three personal injuries actions, for which a written ruling was given on 27 March 2009.

2.The application for consolidation was brought by the plaintiff.  The same plaintiff figured in all three actions, but the defendants in all three actions were different.

3.Consolidation was sought by the plaintiff in respect of all three actions despite the fact that in the 1^st and 3^rd Actions the issue of liability had already been dealt with leaving only outstanding the issue of quantum, but that in the 2^nd Action, both issues of liability and quantum needed to be determined.

4.The plaintiff took the stance that consolidation should be ordered such that all three actions can be heard together including the outstanding issue of liability in the 2^nd Action.

5.That stance of the plaintiff was supported by the defendant in the 1^st Action, but opposed by the defendants in the 2^nd and 3^rd Actions.

6.At the end of the day, it was ordered that the issue of liability in respect of the 2^nd Action (a medical negligence claim against the Hospital Authority) be split from the issue of quantum and tried first.  Then, pending the outcome of the liability issue in the 2^nd Action, there will be consolidation of the three actions (or only the 1^st and 3^rd Actions if the plaintiff should fail on liability in the 2^nd Action) on the quantum issue.

7.Given that background, it can be said that consolidation was necessary in all three actions, but only in respect of the quantum issue.

8.To that extent, it can be said that the defendants in the 2^nd and 3^rd Actions succeeded in the stance adopted by them on consolidation.  Both those defendants were not totally opposed to consolidation, but only opposed to consolidation where it would have an impact on the liability issue in respect of the 2^nd Action.

9.The stance taken by the various parties on the application for consolidation should be readily reflected in the costs order to be made.  Accordingly there will be the following costs order.

10.As between the plaintiff and the defendant in the 1^st Action, the costs of the application for consolidation and the hearing be costs in the cause of the assessment as between them.

11.As between the plaintiff and the Hospital Authority, being the defendant in the 2^nd Action :

(a)  should the Hospital Authority succeed on the liability issue and the plaintiff’s claim be dismissed against the Hospital Authority, the costs of the application for consolidation and of the hearing be paid by the plaintiff to the Hospital Authority; and

(b) should the Hospital Authority be found liable to the plaintiff on liability, the costs of and incidental to the application for consolidation be costs in the cause of the assessment as between them, but the costs of the hearing for consolidation be to the Hospital Authority in any event.

12.As between the plaintiff and the defendants in the 3^rd Action, the costs of and incidental to the application for consolidation be costs in the cause of the assessment as between them, but the costs of the hearing for consolidation be to the defendants in the 3^rd Action in any event.

13.There will be no order as to costs as between the three sets of defendants inter se.

14.As for certificate for counsel, while I accept that this matter is by no means the run of the mill consolidation application, but involved some complex arguments as to the evidence, in particular the expert evidence, pertaining to causation as well as the common issue running through the three actions, those issues were not so complex as to warrant the attendance of two counsel.

15.Accordingly, there will be granted only certificate for one counsel.

16.Lastly, there will also be an order that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Ambrose Ho, S.C., leading Mr Joeson Wong, instructed by  Messrs Chan & Chan, for the Plaintiffs in HCPI 172/2002 and HCPI 74/2003

Mr Wong Yiu Wah of Messrs Chan & Chan, for the Plaintiff in  HCPI 284/2008

Mr Michael Ozorio, S.C., leading Mr Ashok Sakhrani, instructed by  Messrs Tsang, Chan & Wong, for the Defendant in HCPI 172/2002

Mr Anthony Ismail, instructed by Messrs P.C. Woo & Co.,  for the Defendant in HCPI 74/2003

Mr Wong Chi Kwong, instructed by Messrs Tsang, Chan & Woo,  for the 1^st and 2^nd Defendants in HCPI 284/2008