Ng Shing Yan Vincent v. Poon Kin Pong
Read the full judgment text of CACV 170/2009 on BabelCite. This Court of Appeal judgment was delivered on 14 November 2011 before Cheung JA, Kwan JA, Yam J.
Civil practice – costs – personal injury action – payment into court – whether costs up to date of last payment into court should be on District Court scale where claim falls within District Court jurisdiction – whether defendant entitled to costs after date of last payment into court where damages and interest awarded less than amount paid in – whether unsuccessful respondent entitled to costs of appeal – Plaintiff minor sued by his father and next friend claiming damages for injuries sustained in a traffic accident – Judge below dismissed claim finding plaintiff had exaggerated disabilities and his claim fell short of the threshold of seriousness – Three payments into court totalling $350,000 not accepted by plaintiff – On appeal, plaintiff succeeded on liability with contributory negligence raised to 70%, net award $215,967.30 with interest of $38,265.77 totalling $254,233.07, less than the amount paid into court – On defendant's application to vary costs orders – Whether scale of costs for proceedings within District Court jurisdiction – Court applied the usual rule in Lai Ki v. B+B Construction Co. Ltd. that costs in the High Court are assessed on the District Court scale where claim falls within District Court jurisdiction and there was no reasonable prospect of exceeding the $1 million limit – Held, plaintiff's costs up to 19 January 2009 to be on District Court scale – Whether costs after payment into court not beaten – Plaintiff's counsel conceded defendant entitled to costs from 19 January 2009 – Held, plaintiff to pay defendant's costs thereafter on High Court scale – Whether unsuccessful respondent entitled to costs of appeal – Defendant argued plaintiff only partially succeeded and net award less than payment into court – Court rejected – Plaintiff was successful party overall in setting aside dismissal of claim – Defendant should have maintained or increased payment into court to protect his position – Held, plaintiff entitled to costs of appeal – No order as to costs of variation application as defendant succeeded only in part.
Legal issues: Scale of costs for proceedings within District Court jurisdiction · Costs after payment into court not beaten · Costs of appeal where appellant succeeds overall
Outcome: The defendant's application to vary the costs orders was granted in part. The plaintiff is entitled to costs up to 19 January 2009 on the District Court scale; the plaintiff must pay the defendant's costs thereafter on the High Court scale; and the plaintiff is entitled to the costs of the appeal. No order as to costs of the variation application.
Cited by 6 cases · Cites 1 case
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CACV 170/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 170 OF 2009 (ON APPEAL FROM HCPI NO. 83 OF 2004) ____________ BETWEEN
____________ Before: Hon Cheung, Kwan JJA and Yam J in Court Dates of Written Submissions: 3 and 4 November 2011 Date of Handing Down of Decision: 14 November 2011 _____________ DECISION _____________ Hon Kwan JA (giving the decision of the Court): 1.On 7 October 2011, we handed down judgment in this appeal. We allowed the plaintiff’s appeal, set aside the judgment of the court below dismissing his claim and substituted this with judgment for the plaintiff with liability apportioned to the defendant at 30%. The consequent amount of the net award to the plaintiff was $215,967.30. We set aside the costs order made by the judge on 24 June 2009 and substituted this with an order nisi that the costs of the action be in favour of the plaintiff, to be taxed if not agreed, and that the costs of the appeal be to the plaintiff, to be taxed if not agreed. 2.On 20 October 2011, the defendant applied by summons to vary the orders we made as to costs of the proceedings below and on appeal. In lieu of the orders we made, the defendant seeks, inter alia, the following orders:
3.The grounds relied on by the defendant for this application may be stated as follows:
4.The total amount of damages allowed by the judge, without contributory negligence, was $719,891. Unless it could be shown there was a reasonable prospect of obtaining an award exceeding the limit of the District Court jurisdiction of $1 million, the costs of proceedings brought in the High Court would usually be on the District Court scale (Lai Ki v. B+B Construction Co. Ltd. [2003] 3 HKC 322). 5.The judge found that the plaintiff had exaggerated his remaining physical disabilities and psychiatric problems. He had abandoned his claim for future loss of earnings of $1.5 million and sought instead $350,000 to $400,000 for loss of earning capacity. The amount sought for future medical expenses of $294,000 was advanced without sufficient regard as to why he should not continue his follow-up treatment in the public sector. On the basis of full liability, we do not think there was reasonable prospect of his recovering an award in excess of the District Court jurisdiction. There is no reason to depart from the usual rule in the present case. So the costs to which the plaintiff is entitled, up to 19 January 2009 being the date of the last payment into court, should be on the District Court scale. 6.The plaintiff’s counsel conceded that as the damages and interest awarded to the plaintiff was less than the payment into court, the defendant should be entitled to his costs in the action as from 19 January 2009. The costs awarded to the defendant would be on the High Court scale. 7.The defendant also seeks costs of this appeal even though it has failed on appeal. Mr Szeto submitted that the defendant is the successful party in the appeal when properly analysed, in view of the fact that: (a) the plaintiff only succeeded on one of the grounds to overturn the judgment on liability, (b) the level of contributory negligence was raised from 50% as assessed by the judge to 70%, (c) the appeal on quantum was dismissed, and (d) the net judgment sum inclusive of interest was less than the payment into court. 8.According to counsel’s submission, in August 2010, about one year after the Notice of Appeal was filed, the plaintiff consented to the defendant to withdraw the amount paid into court. Mr Szeto contended it should be inferred from the plaintiff’s consent that the defendant was not required to increase the amount paid into court and that he had no choice but to contest the appeal. 9.We reject the above contentions. The plaintiff had to bring this appeal to set aside the judgment dismissing his claim and has succeeded in doing so. He should be regarded as the successful party overall and costs should follow the event. If the defendant had wished to protect his position on costs in the event the plaintiff should succeed on appeal, he should have done so by maintaining, if not increasing, his payment into court instead of obtaining the plaintiff’s consent to withdraw the payment. We decline to vary the order we made on the costs of the appeal. 10.The orders we make as to costs on appeal and below are as follows:
11.As regards the costs of the defendant’s application to vary the costs order, as the defendant has succeeded only in part, we make no order as to the costs of this application.
Mr Kenneth C.W. Chik, instructed by TKC Lawyers, for the Plaintiff/Appellant Mr Patrick Szeto, instructed by Messrs So, Lung & Associates, for the Defendant/Respondent |
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