Fung Chun Man v. Hospital Authority and Another
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HCMP 850/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 850 OF 2012 (ON AN INTENDED APPEAL FROM HCPI NO. 1113 OF 2006) ________________________ BETWEEN
________________________ Before: Hon Yuen and Fok JJA Date of Judgment: 13 August 2012 ________________________ J U D G M E N T ________________________ Hon Fok JA (giving the Judgment of the Court): 1.By summons dated 30 April 2012, the 2nd defendant applies for leave to appeal against the decision of Bharwaney J dated 20 February 2012 declining to vary the costs order nisi made in his judgment dated 11 November 2011 assessing damages in favour of the plaintiff. If leave is granted, the 2nd defendant also seeks a stay of execution of the costs order. 2.The costs order nisi was that the 2nd defendant should pay the costs of the action of the plaintiff and the costs of the 1st defendant, to be taxed if not agreed. The 2nd defendant took issue with the part of the order requiring him to pay the costs of the 1st defendant, which as the Judge observed is an order commonly known as a Sanderson order. By his decision dated 20 February 2012, the Judge declined to vary the costs order nisi, which was thereby confirmed. 3.Since the intended appeal by the 2nd defendant relates only to costs left to the discretion of the Judge, leave to appeal is required by reason of s. 14(3)(e) of the High Court Ordinance, Cap. 4. 4.The 2nd defendant sought leave to appeal from the Judge at a hearing on 16 April 2012. The Judge refused to grant leave and a copy of the transcript of the hearing including his ruling has been provided to us. 5.It is well-established that the Court of Appeal will not interfere with a judge’s exercise of discretion in the award of costs unless it is shown he failed to exercise the discretion, or exercised it on a false principle, or did not exercise it judicially or the exercise of discretion was demonstrably flawed: see Hong Kong Civil Procedure 2012 Vol. 1 at para. 62/2/11 (p. 1097). 6.The 2nd defendant has provided a statement in support of the application for leave to appeal dated 30 April 2012 and the plaintiff has provided submissions in response dated 26 June 2012. The 2nd defendant submits (§44) that his application can be determined on the basis of the written materials and we are content to do so. 7.The 2nd defendant has provided draft grounds of appeal in a draft respondent’s notice of cross appeal, annexed to the summons for leave to appeal. The proposed appeal takes this form because the plaintiff has instituted an appeal (under CACV 265/2011) against the Judge’s assessment of damages. However, it is not suggested by the 2nd defendant that this affects the requirement that leave be obtained for the proposed appeal. 8.The first ground of the proposed appeal is that the Judge erred in principle in making a Sanderson order for the 2nd defendant to pay the costs of the 1st defendant. The reasons in support of this contention are, in substance, the same as those advanced to the Judge at the hearing on 16 April 2012. 9.We are not persuaded that this proposed ground gives rise to an appeal with a reasonable prospect of success. 10.It is correct that the admitted negligence of the 2nd defendant related to events in the period between 23 July 1990 and 15 March 1991, which was a different period to that giving rise to the claim against the 1st defendant (namely October 1996 to 28 August 2002), and that strictly the claims against the 1st defendant and the 2nd defendant were separate causes of action. Whilst this is therefore not a classic situation in which a Sanderson order may be made, we agree with the Judge that a Sanderson order is not precluded where the claim against the successful defendant was not made in the alternative to that against the unsuccessful defendant: see paragraphs 6 and 7 of the Judge’s decision dated 20 February 2012. 11.Here, although the causes of action against the 1st defendant and the 2nd defendant were separate, a reason that must have contributed to the plaintiff’s decision to issue proceedings against the 2nd defendant, having initially only named the 1st defendant in the writ in HCPI 1113/2006, was that the 1st defendant only assumed responsibility for the plaintiff’s medical treatment as from 19 December 1991, leaving the 2nd defendant responsible for the prior period. Given the communality of interest of the 1st and 2nd defendants in the running of public hospitals, albeit during different periods, we are not persuaded that the 2nd defendant’s reliance on the separateness of the causes of action provides a sound basis for the argument that it was unreasonable for the plaintiff to institute and continue proceedings against the 1st defendant. This is particularly so when it was clearly open to the 2nd defendant to make the admission of liability and causation that resulted in the discontinuance of the proceedings against the 1st defendant much earlier than on the first day of trial. Further, the 2nd defendant did not pursue a defence of novus actus at the assessment. 12.Moreover, for the reasons stated in paragraphs 7 to 11 of the Judge’s decision dated 20 February 2012, we consider that there was a proper basis for the Judge to conclude that it was reasonable for the plaintiff to institute and continue the proceedings against the 1st defendant as well as the 2nd defendant so that it was open to him, in the exercise of his discretion, to make a Sanderson order in respect of the 1st defendant’s costs. 13.Accordingly, we also do not consider that the second and third proposed grounds of appeal, which attack the Judge’s finding that it was reasonable for the plaintiff to proceed and to continue to proceed against the 1st defendant, give rise to an appeal with a reasonable prospect of success. 14.We would therefore dismiss the summons for leave to appeal and, since we consider that the application is totally without merit, we would make an order, pursuant to RHC O.59 r.2A(8), that no party may request this determination to be reconsidered at an oral hearing inter partes. It follows that there will be no stay of execution of the costs order. 15.As for the costs of this application, these should be borne by the 2nd defendant. The plaintiff’s costs in respect of the application will be assessed on a gross sum basis and, to this end, we therefore direct the plaintiff’s solicitors to submit a bill of costs within seven days hereof and give leave to the 2nd defendant to submit its response within seven days thereafter. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.
Written submissions by Mr Neal Clough, instructed by Henry H.C. Wong & Co., assigned by Director of Legal Aid, for the Plaintiff/Respondent Written submissions by Mr Patrick D. Lim, instructed by the Department of Justice & Mr Wong Wai Hung SGC, for the 2nd Defendant/ Applicant |
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