Waan Chuen Ming v. Lo Kin Nam t/a Kar Kin Engineering & Supplier Co. and Others

HCPI 588/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 588 OF 2003

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BETWEEN

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AND

HCPI 591/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 591 OF 2003

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BETWEEN

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(Consolidated by the Order of Master B Kwan dated 7 June 2004)

Before: Deputy High Court Judge Carlson in Chambers

Dates of Hearing: 4 May and 31 May 2011

Date of Delivery of Ruling: 31 May 2011

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R U L I N G

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1.The Master has asked me to clarify the effect of two interlocutory orders for costs made by me in this action in which the Plaintiff has ultimately succeeded and obtained judgment on liability.

2.The issue before me concerns the Plaintiff and Dah Sing, the insurer, which had been involved in the action as the 3rd Defendant until 30 March 2006 when it took out a summons for leave to withdraw from the action.

3.The first order for costs is dated 22 February 2005 when I made an order of Plaintiff’s costs in the cause in dismissing the 3rd Defendant’s appeal against an order by the Master extending the validity of the writ of summons [I will refer to this as the first order].  The second order [which I will refer to as the second order] was made on 21 March 2007 allowing the 3rd Defendant to withdraw from the action.  On that occasion, the order was that the costs of the 3rd Defendant’s involvement in the action up to 30 March 2006 [being the date of the summons to withdraw] be costs in the cause of the action.

4.I heard argument on the effect of these two orders on 4 May and again today having called for a transcript of the hearing before me on 21 March 2007.  

5.The submission of Mr Y L Cheung, for the Plaintiff, was that the effect of both orders for costs is that Dah Sing, as the erstwhile 3rd Defendant, should be liable for the costs of the Plaintiff concurrently with the other two Defendants.  Today, having reconsidered the matter, Mr Cheung is content to say that under the second order, Dah Sing (as the previous 3rd Defendant) has no liability for costs, not even during the course of its participation in the action until its withdrawal consequent on its summons of 30 March 2006 and my judgment giving it leave to withdraw on 21 March 2007.  For the Master’s purposes it is sufficient for me to record this fact.  The Plaintiff is not seeking any order for costs against Dah Sing under the second order.

6.This therefore leaves over the question of the effect of the first order.  Mr Cheung says that Dah Sing was then actively participant in the action and as I made an order of Plaintiff’s costs in the cause on that occasion, the Plaintiff should have his costs in relation to that hearing which was concerned with the 3rd Defendant’s unsuccessful appeal against the Master’s order extending the validity of the writ.

7.The point at issue here is whether Dah Sing, having withdrawn from the action before the order of Plaintiff’s costs in the cause crystallised, as it were, at the conclusion of the trial of the action is now immune from an order for costs.

8.I had thought, that in circumstances, where there were orders for costs in the cause during the time when Dah Sing was a party to the action that in such circumstances [the Plaintiff having succeeded in the action] Dah Sing must be liable for such costs.

9.But now that I have heard the argument, it seems to me that the effect of this order, following Dah Sing’s withdrawal from the action, is that those costs would become the responsibility of the parties remaining in the action — that is to say the Plaintiff and the 1st and 2nd Defendants.  Once I allowed Dah Sing to withdraw it was open to any of the other parties to submit that some other form of order for costs should have been made to reflect the reasons for Dah Sing’s involvement in the action, which I had found to be perfectly proper.  No such submission was made.  The effect therefore of the first order, following Dah Sing’s withdrawal, must be that those costs in the cause will be the liability of the losing party or parties in the trial of the action.  Dah Sing has already borne its own costs in respect of the occasions which gave rise to the first and second orders for costs, which it accepts, and that is how the matter must remain.  The effect of the first order therefore is that the Plaintiff cannot look to Dah Sing for its costs of that order.  He must try to recover those costs, which he is entitled to do, from the losing party or parties in the action.

Y L Cheung, instructed by Messrs Samuel Li & Co., for the Plaintiff

Andrew S Y Li, instructed by Messrs Hastings & Co., for the 3rd Defendant in HCPI 588/2003