Wong Ka Ming v. Ng Yin King and Another
Read the full judgment text of HCPI 760/2009 on BabelCite. This High Court CFI judgment was delivered on 22 July 2011.
1. This is the 2 nd Defendant’s application to vary my costs order nisi dated 2 June 2011.
Cited by 6 cases · Cites 5 cases
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HCPI 760/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 760 OF 2009 _________________________ BETWEEN
_________________________ Coram : Before Master Ko in Chambers Date of Hearing : 14 July 2011 Date of Decision : 22 July 2011 _______________ D E C I S I O N _______________ 1.This is the 2nd Defendant’s application to vary my costs order nisi dated 2 June 2011. Background 2.To recap, there was a traffic accident on 4 March 2008 and the Plaintiff was injured. The 1st Defendant was the driver of the offending vehicle and the 2nd Defendant was his insurer. Judgment was entered against both Defendants with damages to be assessed. 3.The Plaintiff is an experienced public light bus driver. He claimed almost $2.5 million of damages in his Revised Statement of Damages. On 2 June 2011, I assessed the damages payable to him to be $245,370 plus interest. I also made an order nisi that the Defendants do pay the Plaintiff the costs of the assessment to be taxed on District Court scale if not agreed.[1] 4.Parties have now placed before me evidence on the circumstances of three pre-action Calderbank offers made by the 2nd Defendant, and three sanctioned payments by the 2nd Defendant and two sanctioned offers by the Plaintiff after the commencement of this action. These can be summarized in the following chronology:
5.The focus of the argument is no doubt on the third and last sanctioned payment of the 2nd Defendant on 31 December 2010 in the sum of $250,000, although parties have also referred to the other settlement offers in argument. 6.Under Order 22, rule 15, a plaintiff may accept a sanctioned payment made not less than 28 days before the commencement of the trial without requiring the leave of the Court if he files with the Court and serves on the defendant a written notice of acceptance not later than 28 days after the offer or payment has been made. It is common ground that the last date on which the Plaintiff could have accepted the sanctioned payment was 28 January 2011. 7.There was initially a minor dispute over the amount of interest accrued on the judgment up to that date. Parties have agreed at the hearing that I should take the Plaintiff’s calculation as correct and the amount of interest accrued was $20,696. The total amount of judgment plus interest as at 28 January 2011 was therefore $266,066, which was $16,066 more than the sanctioned payment of $250,000. Discussion 8.By its summons, the 2nd Defendant applies to vary the costs order nisi so that:
9.In contending for such an order, Mr Gidwani (counsel for the 2nd Defendant) likens this case to Lau Chi Keung v Wong Wai Kei[2]. 10.Lau Chi Keung was also a personal injuries action. The defendants there made a sanctioned payment of $450,000. The damages awarded to the plaintiff after trial inclusive of interest and after deducting the employees’ compensation received came to $452,922.80. That was marginally better than the sanctioned payment by $2,922.80. The learned Judge initially made a costs order nisi giving costs of the action to the plaintiff. The defendants then applied to vary the costs order such that the plaintiff should pay them the costs incurred after the date of their sanctioned payment. The learned Judge was apparently satisfied that there were “special circumstances” in that case justifying a departure from the usual rule that a successful claimant should be entitled to recover all his costs from the losing party[3]. He ordered the defendants to pay the plaintiff’s costs up to the date of the sanctioned payment only. 11.Mr Gidwani has been unable to identify from the written decision in Lau Chi Keung what those “special circumstances” were. Nonetheless, he puts forward the following as the special circumstances in this case justifying a departure from the norm: [4]
12.In my view, the starting point of the discussion is the basic principles that:
13.Order 62, rule 5 provides further guidance on how the court should exercise its discretion on costs. Insofar as it is relevant, it provides that:
14.Recently, the Court of Appeal has reiterated the following principles derived from local and English authorities:[5]
15.Parties do not dispute the applicability of these principles. 16.I do not regard the matters put forward by Mr Gidwani, whether individually or collectively, justify a departure from the norm. 17.First, I do not find a comparison of the number of settlement offers made by each party or a critique on the timing of these offers helpful. Both sides were testing each other’s bottom line. It is difficult for me to say who had been more reasonable in the negotiation. Put it bluntly, the 2nd Defendant could have added a bit more to its last sanctioned payment and the result would be certain and very different – the costs consequences under Order 22, rule 23 will then apply in its favour. 18.In Charm Marine Incorporated v Elborne Mitchell[6], Evans LJ said:
19.Of course, the 2nd Defendant here is realistic enough not to seek costs against the Plaintiff. But insofar as it is attempting to deprive the Plaintiff of his costs subsequent to the sanctioned payment when the Plaintiff has obtained a more favourable judgment, the 2nd Defendant is advocating pretty much the same approach which was discussed by Evans LJ. In my view, what was said in the above quotation applies mutatis mutandis to this case and it is undesirable to muddle the certainty of whether a sanctioned payment has been beaten with reference to the reasonableness of other immaterial offers. 20.In passing, I should mention that Mr Gidwani has specifically disavowed any reliance on the de minimis principle. I think that is sensible in view of the difference in amount and the relevant authorities[7]. 21.Secondly, Mr Gidwani refers me to an article by Paul Jones entitled “Exaggerated and Dishonest Claims”[8] and the English case of Painting v University of Oxford[9] and invites me to punish the Plaintiff for exaggerating his claim. 22.The author of that article observed from a line of recent English cases (including Painting) that the Courts in England had shown willingness to express disapproval in terms of costs against exaggerated claims. He concluded:
23.Mr Gidwani cited Painting as an example of the Court redressing the unfairness caused by an exaggerated claim. 24.Exaggeration of claim is one of the matters relating to conduct that I must have regard to in exercising my discretion on costs.[10] I was initially attracted by Mr Gidwani’s suggestion given that the damages claimed are almost 10 times to that awarded! But can we really blame the Plaintiff too much for that? 25.The heads of damages claimed and awarded are summarised in the following table:
26.The bulk of the difference is accounted for by the failure on the part of the Plaintiff to establish any loss of earnings after his sick leave. At the assessment, the Plaintiff relied on three work assessment reports from physiotherapists in support of his claim but I concluded that the difficulties encountered by the Plaintiff in returning fully to his pre-accident work was subjective with no supporting medical evidence. Although at one stage I criticised the Plaintiff as unreasonable, I fell short of finding him dishonest.[11] Indeed, Mr Gidwani has observed in his submission that “[t]here was no Rumpole moment wherein the Plaintiff was caught red handed in lying or him remaining blank with his hands shivering.” 27.In Painting, the plaintiff (an employee of the defendant university) fell down from a ladder and suffered personal injuries as she was reaching for a file from a high shelf. Her claim (after taking into account 20% contributory negligence on the part of the plaintiff as agreed by the parties) was £400,000. The university made a payment into court of £184,442.91, before realising belatedly that they had significant video surveillance evidence which tended to undermine the plaintiff’s case in relation to the severity and duration of her injuries. They applied for and obtained permission to withdraw all but £10,000 of the money in court. Eventually, the court awarded £25,331.78 (again, taking into account the agreed contributory negligence of the plaintiff). The trial judge ordered the university to pay the plaintiff’s costs. On appeal, the Court of Appeal limited the university’s liability for the plaintiff’s costs to the date of the payment in and ordered the plaintiff to pay the university’s costs thereafter. The Court of Appeal considered that the trial judge had not given sufficient regard to the following matters:
28.None of these featured in this case. The Plaintiff had attempted to settle, in terms of his sanctioned offers. There were other issues beside the Plaintiff’s claim on future loss of earnings that required adjudication[17], and the 2nd Defendant did not succeed on all issues[18]. And, most important of all, unlike Painting, there is no finding in this case that the exaggeration was intended or fraudulent. 29.Thirdly, “future loss of earnings” and “loss of earning capacity” were just two of the heads of damages claimed. The Plaintiff would have to prove his case anyway (e.g. for the purpose of assessing damages on PSLA). I do not think the proceedings had been unreasonably prolonged by the inclusion of those 2 heads as contending by the 2nd Defendant. The “event” here is still the quantum of damages to which the Plaintiff is entitled and the fact remains that he has succeeded in obtaining a higher award. 30.Fourthly, it is said that the 2nd Defendant had been deprived of an opportunity to properly consider the Plaintiff’s self-declared pre-accident income for the purpose of putting forward a reasonable settlement offer. Again, I do not agree. 31.It has always been the Plaintiff’s case that he earned, on average, $800 a day before the accident.[19] He has also been consistent in saying that he has no documentary proof.[20] What Mr. Wong (the Plaintiff’s counsel) did at the trial was to invite the Plaintiff to explain in the witness box how he had come up with that figure. To facilitate his testimony (and at the request of Mr Gidwani), the Plaintiff first jot down on a sheet of paper some perimeters that he would refer to (e.g. the fare for typical journeys) before embarking on his oral explanation. In the end, the Plaintiff did not provide a mathematical calculation but still relied on his experience as a public light bus driver in assessing his income. It is therefore not quite correct for the 2nd Defendant to say that the Plaintiff had only disclosed the formulation of his income at trial. In my view, given the Plaintiff’s case on his pre-accident work, it would not be difficult for the 2nd Defendant to find out those perimeters for the purpose of deciding the level of its settlement offers. 32.Lastly, it is true that the Plaintiff has failed to establish that his lower limb weakness was caused by the accident.[21] But that was just a minor glitch. The general rule does not cease to apply simply because the successful party has failed on a minor issue which has not caused any significant increase in the length and cost of the proceedings. 33.Nothing urged upon me by the 2nd Defendant is sufficient, in my view, to displace the usual rule that costs should follow the event. Conclusion 34.The Plaintiff has beaten the 2nd Defendant’s sanctioned payment. I do not think there is anything in the circumstances of this case to deprive the Plaintiff of his costs after the sanctioned payment. The 2nd Defendant’s summons is therefore dismissed and the costs order nisi is made absolute. 35.On the costs of this argument, parties have agreed that it should follow the event with certificate for counsel. I therefore order the 2nd Defendant to pay the Plaintiff’s costs of and incidental to the summons with certificate for counsel. The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations. There be no order as to the costs of the 1st Defendant.
Mr C K Wong, instructed by Messrs Yung & Young, for the Plaintiff The 1st Defendant in person, appeared briefly and then left Mr Victor Gidwani, instructed by Messrs Li Kwok & Law, for the 2nd Defendant [1] See my judgment on Assessment of Damages dated 2 June 2011. [2] unreported, DCPI 1846/2008, Deputy District Judge Edward Shum, 22 June 2010. [3] At para.30 & 31 of the Decision. [4] Taken from the affirmation of the 2nd Defendant’s solicitor. [5] Kwan Siu Wa Becky v Cathay Pacific Airways Limited, unreported, CACV 92/2010, 19 April 2011, per Tang Ag CJHC at para.6-9. [6] Unreported, Transcript: Smith Bernal, 22 July 1997, quoted at para.25 of the judgment in Lau Chi Keung, op cit. [7] Such as Tsang Chiu Tung v陳創成經營成記水喉渠務工程, unreported, DCEC 713/2009, HH Judge Leung, 24 January 2011; Ho Lai Chuen Cadia trading as Resolution Software Consultants v Xerox (Hong Kong) Limited, unreported, HCA 6454/1997, Deputy High Court Judge A Cheung (as he then was), 19 April 2002; and Charm Marine, op cit. [8] Published in the February 2007 issue of the Personal Injury Law Journal. [9] [2005] EWCA Civ 161. [10] See O.62, r.5(2)(c). [11] See the discussion in paragraphs 32-47 of my judgment [12] Per Lord Justice Maurice Maurice Kay at para.22 of the judgment. [13] At para.27 of the judgment. [14] Per Lord Justice Maurice Maurice Kay at para.22 of the judgment. [15] Per Lord Justice Longmore at para.27 of the judgment. [16] Per Lord Justice Maurice Maurice Kay at para.21 of the judgment. [17] See para.11 of my judgment. [18] For example, on the issue on the pre-accident daily wage of the Plaintiff, see para.34-38 of my judgment. [19] See, for example, para.5 of his Statement of Damages filed as early as on 7 December 2009. [20] The Inland Revenue Department has confirmed that there is no record of the Plaintiff paying salaries tax, and the entries in the Plaintiff’s bank passbook do not reveal any pattern of earnings or saving, see para.34(2) & (5) of my judgment. [21] See para.24 of my judgment. |
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