Mga Entertainment Inc. v. Toys & Trends (Hong Kong) Ltd and Others

HCA2152/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2152 OF 2002

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BETWEEN

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Before : Deputy High Court Judge Seagroatt in Court

Date of Addendum : 19 May 2011

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A D D E N D U M

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1.Having invited arguments by Mr Shipp as to why I should not make an order that the plaintiff pay the costs of the defendants throughout on a common fund basis, I was informed that not long after the judgment of 3 March 2008 the plaintiff agreed to pay the defendants’ costs of the action up to and including the hearing on 3 March on a party and party basis any costs to which the plaintiff was entitled by reason of any earlier orders being set off against the agreed defendants’ costs. Clearly I cannot go behind this agreement between the parties and it must stand in so far as it relates solely to the position for that period.

2.I was however informed by Mr Stephenson for the defendants that by letter dated 2 February 2010, a sanctioned offer of settlement or compromise was sent to the plaintiff on the basis that the defendants would accept US$3 million inclusive of interest in satisfaction of its claim, with each side to bear its own costs.  That offer, in terms of damages alone, represented less than half the defendants’ claim.  It is a matter of surprise that the defendants’ letter of offer was not even acknowledged, let alone answered appropriately.  In view of the efficacy of offers made under Order 22 the plaintiff’s attitude shows either ignorance of its provisions, or simple indifference.

3.Under Order 22 rule 24(3) I may make an order that the defendants have their costs on an indemnity basis.  When I was considering the appropriate basis of costs for the action as a whole (being unaware of the agreement as to costs referred to) I had had regard to whether I would or should order indemnity costs.  However I had come provisionally to the view that the order should be common fund costs.  Now, on the more limited part of the action, I have considered all the circumstances including those set out in Order 22 rule 24(5).  I take the view that the proper order to reflect all the circumstances should be common fund costs from and including 4 March 2008 and I so order.

4.I have also been informed that the plaintiff made a payment into court of US$178,000, sometime after the defendants’ sanctioned offer.  I order payment out of that sum forthwith, in part satisfaction of the judgment.

Mr Colin Shipp, instructed by Messrs William W.L. Fan & Co., for the Plaintiff

Mr Paul Stephenson, instructed by Messrs Danny K.H. Yu & Co., for the 1^st to 3^rd Defendant