Cheung Shu Han v. Dr Luk Ka Ling

HCMP 1113 /2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1113 OF 2011

(ON AN INTENDED APPEAL FROM HCPI NO. 653 OF 2010)

____________

Before: Hon Hartmann JA and Fok JA in Court

Date of Hearing: 4 October 2011

Date of Ruling: 4 October 2011

____________

____________

Hon Hartmann JA (giving the Ruling of the Court):

1.This is an application for leave to appeal from a judgment of Deputy High Court Judge Seagroatt dated 31 May 2011.

2.The necessary history may be summarised as follows.  In November 2009, the plaintiff issued a writ against the defendant claiming damages by reason of medical negligence.  After the issue of the writ, the plaintiff was granted legal aid and solicitors were allocated to represent her in the litigation.  In November 2010, the plaintiff’s statement of claim was served and a month thereafter the defence was served.  When the defence was served, the defendant’s expert report was not served with it.  It was this fact that precipitated the proceedings which are the subject of this application.

3.After ill-tempered correspondence on the part of the plaintiff’s solicitors, in late December 2010 the plaintiff’s solicitors issued a summons requiring delivery up of the expert report.  A few days later, the defendant took out a summons to protect his position.  The two summonses were consolidated and were heard in March 2011.  It should be said that the defendant’s expert report was served before the hearing.  In the result, the hearing itself before a Master was largely concerned with costs.

4.The Master was of the view that the plaintiff’s application was without merit.  This was reflected in her order as to costs. She ordered that there be no order for costs on the plaintiff’s summons and, in addition, that there be no Legal Aid taxation of costs in respect of the plaintiff’s application.

5.On appeal, Deputy Judge Seagroatt was also of the view that the plaintiff’s application had been without merit.  He dismissed the appeal.  In respect of the costs of the appeal, he made two orders.  First, he made a wasted costs order “in favour of the defendant’s solicitors against the plaintiff’s solicitors”, such costs to be taxed if not agreed.  Second, he also made an order that there be no Legal Aid taxation of the costs of the appeal.  As he explained: “This means that the plaintiff’s solicitors should not have their costs out of public funds.  It also means, whether or not the plaintiff succeeds in her action, that no costs should be borne by the plaintiff under the original order of the Master or on this order by me in respect of the appeal”.

6.As we understand it, the application comes before us in two discrete parts.  First, leave is sought to appeal the wasted costs order of Deputy Judge Seagroatt.  Second, leave is sought to appeal the two orders that there be no Legal Aid taxation.

7.In respect of the first matter, that of the order of wasted costs, it is the plaintiff’s submission that it does not require leave to appeal: appeal is of right.  That is disputed by the respondent.  Lengthy written submissions have been placed before us by counsel for both parties.

8.In the circumstances of the present case, we are of the view that, if the applicant’s legal representatives believe there is an appeal of right, then they must proceed on that basis and there is little purpose in us determining the matter for no other purpose than to give support to that contention.  The issue is not self-evident.  Accordingly, in the circumstances of this case, we are of the view that, if the matter is to be argued, it should more properly be argued before the full Court.  Both counsel accept that, on balance, that is the best way to proceed.

9.Moving to the second issue, namely, the orders that there be no Legal Aid taxation, the submission before us is that neither the Master nor the learned Deputy Judge had jurisdiction to make such orders.  In broad terms, it is submitted that the relevant statute mandates Legal Aid taxation in all instances.  Counsel for the respondent argues that the issue turns on a simple matter of statutory interpretation, a matter to which Deputy Judge Seagroatt was alive and in respect of which his resolution was clearly correct.

10.Counsel for the plaintiff seeks leave to appeal on the grounds that the appeal has a reasonable prospect of success and, in the alternative, that there are other reasons in the interests of justice why the appeal should be heard.

11.In respect of the first ground, counsel for the plaintiff has made reference to a decision of the English Court of Appeal to the effect that an order for legal aid taxation must always be made and, that being the case, if solicitors are to be denied their costs, it must be effected by some other route.  We are of the view that a correct determination of the issue is not self-evident.

12.More importantly perhaps we are persuaded that there is good reason in the general interests of justice why this particular matter should be heard by the full Court.  We have moved into an era of more immediate case management by judges.  Orders denying Legal Aid taxation are therefore likely to become more common as a means by which judges can discipline entirely misguided and wasteful interlocutory litigation.  That being the case, the sooner the issue of whether our courts are vested with the power to make orders of ‘no Legal Aid taxation’ the better it will be both for judges and the profession.

13.For these reasons, we grant leave.

14.Two consequential matters arise.  First, we are of the view that the two appeals should be heard on the same occasion and so direct.  It will be a matter for the full Court whether they should be heard together or one after the other.  Second, being of the view that the Director of Legal Aid clearly has an interest in the issue of ‘no Legal Aid taxation’ orders, we direct that a copy of this ruling together with a copy of the notice of appeal be forwarded to the Director.

15.The costs of this application will be in the cause of the appeal or, if the full Court directs that the appeals are to be heard one after the other, in the cause of each appeal.

Mr Tony Ko,instructed by Messrs Ip, Kwan & Co. for the Plaintiff/Applicant

Mr Paul Lam, instructed by Messrs Mayer Brown JSM for the Defendant/Respondent