Robbie Ilana Tenzer v. Dr. Vincent C. Goh

HCPI 718/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 718 OF 2011

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BETWEEN

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R U L I N G

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Introduction

1.This is an application for security for costs taken out by the Defendant against the Plaintiff in a medical negligence claim. There is a further application by the Defendant requesting the Plaintiff to produce medical reports to support part of her alleged injuries.

2.The Defendant was and is a dentist.  The Plaintiff was a patient of the Defendant for the period between October 2008 and July 2009.  It is alleged by the Plaintiff that during the time while the Plaintiff was under the care of the Defendant for dental treatments, permanent damage has been caused to her.  The Writ of Summons in the present proceedings was issued on 7 October 2011 and was served on the Defendant on 29 June 2012.  The Statement of Claim and Statement of Damages were filed and served on 27 July 2012.

3.Originally, there were 4 applications made by the Defendant and 1 application made by the Plaintiff before me.  After agreement reached between the parties, the only issues left for me to decide are:-

(i)   the Defendant’s application for security for costs, of which the Plaintiff agreed to be cross-examined upon on the contents of her 2 affidavits;

(ii)   the Defendant’s application for the Plaintiff to serve medical reports substantiating the alleged post-operative tenderness to her left gluteal muscle and psychological/psychiatric damage.

Background

(i) The Defendant’s Application for Security for Costs

4.I think it is fair to say that what had triggered off the Defendant’s application for security for costs was a letter written by the Plaintiff’s solicitors on 20 July 2012.  In that letter, the Plaintiff’s solicitors informed the Defendant’s solicitors that the Plaintiff needed an extension of time under a time summons, partly due to the reason that she was recovering from pneumonia which had “prevented her, on medical advice, from being able to travel to Hong Kong to finalise the pleadings and attend to other matters relating to the litigation”.

5.The Defendant’s solicitors quite properly in my view made enquiries with the Plaintiff’s solicitors as to the resident status of the Plaintiff.  They did so by a number of correspondences during July to September 2012.  Not having received a satisfactory answer from the Plaintiff, the Defendant issued the present summons, inter alia, to ask for security for costs on the ground that the Plaintiff is ordinarily resident out of the jurisdiction.

6.The Plaintiff is a British Citizen of Jewish descent. She was born in the United Kingdom in August 1974 and came to Hong Kong to live with her parents when she was 2 years old.  She holds a Hong Kong permanent resident identity card and enjoys right of abode here.  She grew up in Hong Kong, having attended both junior school and secondary school here.  After schooling, she started her working life in Hong Kong, first working with a garment manufacturing company as a merchandiser for about 2 years, then operated her own photography studio for a few years before working for a large fashion chain store based in the UK.  She was based in the UK for the first 4 years while working for this company.  She was then sent by the same company back to Hong Kong to be based here.  Initially she spent part of her time in Hong Kong and part of her time in the UK, before moving back to Hong Kong on a permanent basis while working for the same company.     

7.After working for the UK based fashion chain store for about 10 years, the Plaintiff then started to work for a local garment company as its senior designer, responsible for the design of the ladies fashion in their women wears division.  At around the end of 2009 or beginning of 2010, she was headhunted to work for another local garment company as its design director.  It was at around this time that the Plaintiff had started to experience problems with her teeth.  

8.While she was working for the local garment company after leaving the UK fashion chain store and during part of the time when she was working in the company where she was its design director, she was living in a rented property in Sai Kung.  It was while she was with the later company where she worked as design director that she decided that she wanted a change.  She therefore moved into a rented apartment on Lyttelton Road in the Mid-levels.  She left the employment with the later company in or around October/November 2010.

9.By referring to a letter that Dr Basil Mizrahi written to the Plaintiff on 27 April 2010, a dentist in London whom the Plaintiff had consulted on a number of occasions, the Plaintiff was able to say that she was living at the rented property in Sai Kung at or about that time.  According to the Plaintiff, it was in around August 2010 that she moved to the rented flat on Lyttelton Road.  She also states that she was not able to work since leaving the employment with the garment company where she worked as its design director in or around October/November 2010.

10.By the time when the Writ of Summons was issued in October 2011, the Plaintiff was living with her brother. Her brother is also a Hong Kong permanent resident. She was staying at the premises occupied by his brother (but owned by some family friends) on Po Shan Road in the Mid-levels.

11.After the alleged negligent dental work done to the Plaintiff, besides consulting Dr Mizrahi in London, she had also received treatments from one Dr Kevin Sands in Los Angeles, California, United States.  Although the Plaintiff was not exactly sure about the dates, broadly speaking, she thinks she was consulting Dr Mizrahi in London in around February/March 2011 and had received treatment under Dr Sands from May to September 2011.  She stayed behind in California until February/March 2012 in order to rest and to recuperate. The Plaintiff’s original intention was to return to Hong Kong after her treatment with Dr Sands and her rest in California.  Unfortunately, she had contracted pneumonia while in London and had to stay with her parents from around March 2012 to June 2012 in order to recover from the illness.  During that period of time, she says that she had only returned to Hong Kong once and for a couple of weeks only, mainly to see her 2 dogs.

12.Thus, according to her own evidence, it is clear that the Plaintiff was absent continuously from Hong Kong for a considerable period of time, namely, from February/March 2011 to June 2012.  However, it is equally clear that she was absent from Hong Kong due to her dental treatments and poor state of health rather than for work or other reasons.

13.From June 2012 onwards and up until December 2012, the Plaintiff principally stayed in Hong Kong although she would return to London from time to time for dental treatments.

14.On 14 January 2013, the Plaintiff started a new job with a local celebrity as the head designer of a clothing range that is going to be launched in Hong Kong within 6 to 8 months from the date of her joining of the company.  Her work is based in Hong Kong and she would work out of an office in Kwai Chung.  As part of her duties, she would need to travel on a regular basis to the factories in Macau and China although most of the time she would be working from her office in Hong Kong.  

15.Besides the above history, it is perhaps worth noting that the Plaintiff all along did not own a bank account in the UK.  Her parents had to settle the invoices of her dentist in London for which the Plaintiff would reimburse them.  Save and except for the few years when she was working for the fashion chain store in the UK, she did not pay any tax to the UK authorities.  All along, she had only paid tax in Hong Kong and maintained a bank account in Hong Kong.  

16.The Plaintiff does own a property in London that was rented out to a tenant.  She did not stay in the property throughout the time when she was receiving dental treatments or recovering from her pneumonia while she was in London.

The Plaintiff’s Case

17.The Plaintiff’s case can be found in the 2 Affidavits filed by her in opposing the Defendant’s application as well as the evidence she gave in court when she was subject to cross-examination by the Defendant’s solicitor.

18.In essence, the Plaintiff’s case is that despite there was a temporary absence from Hong Kong, she was and is at all times ordinarily residing in Hong Kong and therefore should not be subject to the rules governing a plaintiff who is residing outside the jurisdiction when it comes to providing security for costs.  Her absence was mainly for the purpose of receiving dental treatments in London and California, which was, according to her, resulted from the alleged negligent treatment of the Defendant.

The Defendant’s Case

19.The Defendant’s case is simply that judging from the matters deposed to by the Plaintiff in her Affidavit filed on 24 October 2012 and the Supplementary Affidavit filed on 17 January 2013, coupled with the evidence given by her during cross-examination, the proper inference the Court should draw is that the Plaintiff was ordinarily resident outside Hong Kong.

20.Further, the Defendant relies on 2 offers made by the Plaintiff. First, the Plaintiff’s solicitors on 11 December 2012 agreed to offer as security for costs a charge over her property in London.  Later, when that was not accepted, the Plaintiff, through her solicitors on 28 December 2012, offered to pay a sum of HK$1.5 million as security for costs.  However, it has to be remembered that while making those offers as security for costs, the Plaintiff’s solicitors had all along maintained on her behalf that she was ordinarily resident in Hong Kong.

21.The amount the Defendant is asking for as security for costs, which covers costs up to the discovery stage, is at a sum of HK$1,565,000.

(ii) Application for medical reports substantiating personal injuries

22.The Defendant’s application for medical reports is based on Order 18 rule 12(1A) of the Rules of the High Court (“RHC”) where a Plaintiff in a personal injury action is required to serve with his statement of claim a medical report which, according to sub-rule (1C), means a report “substantiating all the personal injuries alleged in the statement of claim which the Plaintiff proposes to adduce in evidence as part of his case at the trial”. 

23.The Plaintiff has served 3 medical reports pursuant to Order 18 rule 12 (1A) and (1C) in this case.  However, according to the Defendant, none of those 3 medical reports has substantiated the alleged:-

(a)   “postoperative tenderness to her left gluteal muscle and, for in the region of 6 weeks could only move around with the help of crutches which severely hampered her mobility”; or

(b)   “psychological/ psychiatric trauma”.

24.By a letter dated 11 December 2012, the Plaintiff’s solicitors provided to the Defendant’s solicitors the clinical notes of a registered physiotherapist Ms Abby Yek Cheung of the treatments received by the Plaintiff purportedly to satisfy the requirements of Order 18 rule 12 (1A) and (1C).

25.The Defendant points out that such clinical notes kept by a physiotherapist are not medical reports that can satisfy the requirements of the above rules. 

26.The Plaintiff on the other hand says that as she was referred by

Professor Cheung Lim Kwong, an Oral and Maxillofacial Surgeon who carried out the bone harvesting operation on the left hip of the Plaintiff on 10 February 2010 to consult a physiotherapist due to the complaint of shooting pain and finding of tenderness of the left gluteal muscles, as such, the clinical notes of Ms Cheung will be sufficient to satisfy the requirements of Order 18 rule 12 (1A) and (1C).

27.In any event, the Plaintiff says that as her temporary immobility and pain from the left gluteal muscle are relatively minor, and only go to the assessment of quantum, which joint expert(s) are likely to be instructed in due course, therefore, no separate medical reports are necessary.

28.Similarly, for the psychiatric and psychological trauma, the Plaintiff considers that this only goes to assessment of quantum and there is no justification, or urgency, for the Defendant to make the application for the specific medical reports at this stage at all.

Analysis

The law on Security for Costs

29.The law in this area is well settled and there is no real dispute between the parties on this.

30.Order 23 rule 1(1)(a) of the RHCprovides as follows:

“Where, on the application of a defendant to an action in the Court of First Instance, it appears to the court that the plaintiff is ordinarily resident out of the jurisdiction, then if, having regard to all the circumstances of the case, the court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action as it thinks just.”

31.Paragraph 23/3/4 of the Hong Kong Civil Procedure 2013 has laid down the principles for determining what is “ordinary residence”. The Defendant’s solicitors have succinctly summarised them in their submissions.  I can do no better than to repeat the very helpful summary here:

(a)   The question is one of fact and degree; it does not depend upon the duration of the residence, but upon the way in which a man’s life is usually ordered, and it contrasts with occasional or temporary residence.

(b)   It was held by the House of Lords in R v Barnet LBC, ex p Shah [1983] 2 AC 309 that, in the context of the English Education Acts, the phrase “ordinarily resident” should be construed according to its ordinary and natural meaning, and that a person is ordinarily resident in a place if he habitually and normally resides lawfully in such a place from choice and for a settled purpose, apart from temporary or occasional absences, even if his permanent residence or “real home” is elsewhere.

(c)   A plaintiff who makes a provisional decision to go and live abroad is not “ordinarily resident” out of the jurisdiction, at any rate so long as he has not left the country.

(d)   A holder of a Hong Kong identity card is not necessarily ordinarily resident within Hong Kong.

(e)   For the purposes of security for costs, a plaintiff who was formerly resident in Hong Kong (at the time the alleged cause of action arose) but who is no longer resident should not be in any different position to that of a plaintiff who has always been non-resident.

32.In Susan Mary Lauria v. Le Saloon Orient (Hong Kong) Ltd and Anor, HCA 2609 of 1994(17 January 1996), Mrs Justice Le Pichon (as she then was) at p.3 of the Judgment laid down the following principle:

“Under O.23 r. 1(1), the court has a real discretion whether or not to order security for costs.  It is no longer an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs.  The court may order security for costs “if, having regard to all the circumstances of a case, the court thinks it just to do so”…  In my judgment, the court has to assess the prospects of success of this Plaintiff as in any other action and exercise its discretion having regard to all the circumstances of the particular case.”

33.In this case, the main contention of the Defendant is that at all material time the Plaintiff was not ordinarily residing in Hong Kong and therefore she should provide security of costs, just like someone who is living out of the jurisdiction. 

Was the Plaintiff “ordinarily resident” outside the jurisdiction?

34.Having taking into all the evidence before me, in particular having have the opportunity to hear and to observe the Plaintiff when she gave evidence, I do not accept the claim that she was not ordinarily resident in Hong Kong at any material time during these proceedings.

35.There are a number of reasons which led me to arrive such the conclusion.  I shall try to set them out below.     

36.First and foremost, I find the Plaintiff to be an honest, reliable and impressive witness.  Despite having been subject to very thorough and detailed cross-examination by the Defendant’s solicitor, her evidence remains intact and coherent.  While there may be matters that she could not remember clearly or dates that she might have even mixed up, in my view, this is only to be expected given the fact that some of those matters happened quite a while ago.  Overall, my impression of the Plaintiff is that she was trying her best to answer the questions put to her.  In my view, she was a truthful witness.  I believe what she told the Court.

37.Secondly, the Plaintiff has lived in Hong Kong since she was 2 years old.  She has always treated Hong Kong as her home.  Not only she had attended school here, she has in fact spent most of her working life here.  Save for the 4 years when she was working for the fashion chain store in the UK, she has basically spent her entire working life in Hong Kong.  Starting from the position of a merchandiser, she worked her way up to become the design director of a large manufacturing company based in Hong Kong.

38.Mr Tse, who represents the Defendant, in his usual fair style in conducting litigation, does not dispute the fact that the Plaintiff was ordinarily residing in Hong Kong from the time when she moved back to Hong Kong while she was still working for the UK fashion chain store in 2004, until she left the employment of the company where she was employed as design director in or around October / November 2010.

39.The period that the Defendant takes issue with is from the time after she left the employment with that local company until her return to Hong Kong to start her new job with the local celebrity in January this year.  In particular, the Defendant contends that during the period of around 14 months when the Plaintiff was receiving treatments in California and in London from March 2011 to June 2012 (including the time of resting and recuperating), she could not have been regarded as ordinarily resident in Hong Kong.   

40.While it is true that a plaintiff who is ordinarily resident abroad may be ordered to give security for costs, the onus is on the defendant to prove that the plaintiff is “ordinarily resident” outside the jurisdiction.  The question is one of fact and degree and does not depend on the duration of the residence, but upon the way in which a man’s life is usually ordered: see Order 23 rules 1-3, para 23/3/4 of the RHC.       

41.In this case, I accept the evidence of the Plaintiff when she says that she has always treated Hong Kong as her home.  Just because she was absent from Hong Kong for a lengthy period of time, it would not necessarily change that fact, provided of course there are good reasons to explain why, during the time of her absence, she was not “ordinarily resident” outside the jurisdiction.  

42.As the evidence reveals, she had in fact been absent from Hong Kong for a considerably lengthy period of time, principally between February/March 2011 to June 2012, and partly from July to December 2012.  However, I accept the Plaintiff’s words that the main reason why she was in California and London during that time was for her dental treatments, allegedly resulting from the negligent treatment received under the Defendant, and not for any other reasons. She had, in her own words, “lost confidence in the dentist in general practice in Hong Kong” and therefore was seeking help from outside Hong Kong.  .    

43.In my view, by doing so, the Plaintiff had never “uprooted” and re-located herself to either California or London during the time when she was receiving dental treatments there.  While it is true that by the time when she first went to London to receive treatment in February/March 2011, she had already vacated her rented apartment on Lyttelton Road, it is not the same to say that she has moved out of the jurisdiction altogether.  It is not as if she had started to reside in a different country with a view of not to return to Hong Kong for the foreseeable future.  Further, I accept the Plaintiff’s evidence when she told the Court that she had reached an agreement with her landlord to terminate the lease of her Lyttelton Road apartment earlier.  I believe her when she said that a friend of hers has taken over the lease, which is an arrangement acceptable to her landlord.  I further accept the fact that she had terminated the lease early principally because she was “emotionally and physically unwell” and was spending a lot of time in her brother’s flat on Po Shan Road.  Thus, by the time when she left for treatments in London and California, she was already staying in the Po Shan Road flat.  When seen in such context, it is perhaps not surprising to find that by the time when the Writ of Summons was issued in October 2011, she would state that her address was the one in Po Shan Road.  And by the time when she filed her first affidavit in opposing the Defendant’s present summons in November 2012, she would again give the Po Shan Road flat as her address.  I think this is because in truth and in fact the Plaintiff had never considered herself as residing outside of Hong Kong.  She might have to receive treatments in California and London due to a lack of faith in the dentists in private practice here, but, in my view, she had never really given up her resident status in Hong Kong.     

44.In any event, there is no evidence to suggest that when she went to London and California for dental treatments, she was going to leave Hong Kong and move there permanently.  There is no evidence to suggest that she had arranged all her personal belongings and chattels to move either to London or California while she was receiving treatments.  It is true that she had moved out of the rented flat on Lyttelon Road, but she had done so partly because she was not working and therefore not “able to pay rent”; and partly, due to the fact that she was emotionally and physically feeling unwell.

45.Further, I think it is significant to note that while she was receiving treatment in London under Dr Mizrahi, the Plaintiff was staying with her parents and not renting a place for herself or staying in her own property (even though it was rented out to tenant at the time).  To me, this indicates that whatever time frame she was thinking of staying in London, the Plaintiff was not intending to stay there on a long term basis. Otherwise, I expect that she would have rented her own place or took steps to re-claim her own property for occupation.  

46.Dr Mizrahi’s invoice dated 14 March 2011 was sent to her parents’ address in Mill Hill in London.  The Plaintiff explained that Dr Mizrahi had both of her parents’ London address and her Hong Kong address.  According to the Plaintiff, the reason why the invoice was sent to her parents’ address was because she did not have a UK bank account and only had a Hong Kong account.  Thus, her parents would pay first and would then pass the invoice to her for reimbursement.  I have no difficulty in accepting such explanation and in fact consider it is a perfectly reasonable arrangement. 

47.The fact that she was not ordinarily residing in London is further supported by the medical record kept by Dr Mizrahi when it was specifically noted in the record that “patient mainly lives in Hong Kong”. Although that record was first made in April 2010, there was nothing to indicate that her resident status has changed in so far as Dr Mizrahi is concerned.  Otherwise, I would expect some sort of remarks will be made by Dr Mizrahi in the record.

48.The above is also consistent with the entry made by Dr Sands in California when she first consulted him in March/April 2011.  Her address was put as “Hong Kong, HK 00”.  Had she actually relocated herself back to London as the Defendant submits, then I expect Dr Sands would have put down a London address in his record instead of merely stating “Hong Kong”.   

49.The Defendant submits that it is a significant fact that, after resting and recuperating in California, the Plaintiff returned to the UK and not Hong Kong.  It has been submitted on behalf of the Defendant that this was not surprising given the fact that she had no job in Hong Kong and no home in Hong Kong, having by this time already agreed with her landlord to have the lease on the Lytteton Road flat terminated early.  I do not agree.  In my view, this has overlooked the fact that she had started her journey to California to receive treatments from London and it was only natural (and perhaps more economical) for her to return on the same air ticket to London first before making her way back to Hong Kong.  After all, her parents lived in London and it is perfectly understandable that she would return to London to visit them before returning to Hong Kong. This is particularly so after she had spent an extended period of time receiving treatments and in resting in California.  In my judgment, what is more important is the fact that during all this time while the Plaintiff was away from Hong Kong, she had not looked for jobs in London or took any steps to “re-locate” herself to London like sending her personal belongings there.  The fact that eventually she was able to find a job in Hong Kong in January 2013, rather than in London or anywhere else, shows that she had never intended to leave Hong Kong for any time longer than necessary.

50.The Defendant also submits that by an open letter dated 11 December 2012 when the Plaintiff, through her solicitors, agreed to offer her unencumbered London property as security for costs; and later on offered a sum of HK$1.5 million as security for costs, they tantamount to an admission that she is ordinarily resident outside Hong Kong.  Otherwise, the Defendant submits, why would the Plaintiff have made those offers.

51.With respect, I do not agree.  First, when making the offers, it was maintained on her behalf by those representing her that she was ordinarily resident in Hong Kong.  Second, there may be a host of reasons why she had agreed to provide such security at the time, including her physical and emotional state and the stresses that such application may bring to her.  In this regard, I note also that at the time when those offers were made in December 2012, the Plaintiff was still very much travelling between Hong Kong and London (principally for dental treatments) and has not started her present job in Hong Kong yet.  Third, by taking up her present job in Hong Kong in January 2013 and by “re-locating” herself here, she must have, for all intents and purposes, had “reverted” her ordinarily resident here, that is if she had ever given that up at any stage.

52.For the above reasons, I find the Plaintiff, eventhough had stayed in London and California for a lengthy period of time between February/March 2011 and June 2012, was not “ordinarily resident” out of the jurisdiction.

The Plaintiff’s prospect of success        

53.It has been submitted on behalf of the Plaintiff that in deciding whether to order security for costs, amongst other factors, the Court has to assess the prospects of success as well as to take into account of all the circumstances of the particular case in exercising the discretion: see Susan Mary Laria, v. Le Saloon Orient (Hong Kong) Ltd and Anor, supra.

54.However, I agree with Mr Tse that assessing the Plaintiff’s prospect of success is not the correct approach in such applications.

55.In Sunchase International Group (China) Ltd & Others v. Vincor Group of Companies (Investment) Ltd & Others [2004] 1 HKLRD 731, Rogers VP, of whom Le Puchon JA agreed, at paragraph 5 of the Judgment laid down the following:-

“In my view, having seen what I have of the documents which have been filed, the judge’s approach is absolutely correct. It is not the function of the court, when faced with an application for security for costs, to make a preliminary run at deciding the ultimate success or failure of the claim. The judge has approached this on the basis that the plaintiffs have a bona fide claim. He has also approached it on the basis that the defendants have a bona fide defence. Mr Wong today says that the judge should have come to the additional conclusion that the plaintiffs had a substantial chance of success. I do not see that that was the judge’s function in a case like this. In a simple case that may be so, but here the defendants are contesting the plaintiffs’ claim and there is no way that the judge could resolve that contest at this stage.”

56.The above rule laid down in Sunchase has been followed in the recent case of Lim Yi Shenn v. Wong Yuen Yee [2012] 3 HKLRD 505, where Recorder Horace Wong SC at P.513, paragraph 14 stated as follows:

“As has been repeatedly pointed out by the Court, ‘it is not the function of the Court, when faced with an application for security for costs, to make a preliminary run at deciding the ultimate success or failure of the claim’ (per Rogers V-P in Sunchase International Group (China) Ltd v Vincor Group of Companies (Investment) Ltd [2004] 1 HKLRD 731, 733D –E). An application for security for costs is not an occasion for satellite litigation. Unless it can be readily demonstrated that the case of a party has a high degree of success, it is generally not right for the Court to judge the merits of the case on paper. Judging the merits of a case merely on paper can be dangerous, for what may appear strong on paper may turn out to be unconvincing upon fuller investigation; and what at first sight may raise eyebrows might turn out to be perfectly understandable after the witnesses have been seen and heard. If I may gratefully adopt Megarry J’s sagacious reminder in John v Rees [1970] Ch 345, 402:

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

57.I would respectfully agree with the learned Recorder on the above.  In this case, as Mr Tse submits, it is still at an early stage of the proceedings and it is not plain and obvious that the Plaintiff will succeed.  It would be dangerous, if not being irresponsible, for me to make an assessment of the chance of success of the Plaintiff at this stage of the proceedings without even having the chance to read the Defence of the Defendant. At best, I think at this stage the Plaintiff has a bona fide claim.  I refuse to venture further than this.  I therefore do not think it is right for me to take into account of the Plaintiff’s chance of success in the present application for security for costs.

The Plaintiff’s impecuniosity

58.The Plaintiff’s Counsel has raised the point of the Plaintiff’s impecuniosity in his Skeleton Argument and stated that “it would be grossly inappropriate to order the Plaintiff to pay the sum for security for costs which the Plaintiff is unable to raise the money, this would in all probability have stifled the Plaintiff’s claim”.

59.With respect, this is a non issue.  Not only the Plaintiff has not raised this point in her Affidavit and Supplementary Affidavit, the Defendant is not advancing any argument on this either in its written or oral submissions.  I do not know the reason why the Plaintiff’s Counsel has included this in his Skeleton Argument in the first place.  If the Plaintiff was able to offer her unencumbered property in London or HK$1.5 million as security for costs at one stage, I do not think she could be described as impecunious by any standard.

60.Therefore, I would not take into account of the alleged impecuniosity of the Plaintiff in this case as part of the consideration for providing security for costs.   

Difficulty in Enforcing Judgment

61.Another point raised by the Plaintiff’s Counsel in his submission is that should the Court decide that the Plaintiff ordinarily resident in the UK, it is for the Defendant to address the court regarding the difficulty in enforcing the judgment abroad as there is no reciprocity arrangement between Hong Kong and the UK.

62.Paragraph 23/3/4 of the Hong Kong Civil Procedure 2013 states:

“Nevertheless, in deciding whether to order a foreign plaintiff to provide security for costs, the focus should be on the difficulties faced by the defendant in enforcing the judgment rather than on the status of a particular plaintiff (Izumo Mokko Co Ltd v TS Lines Ltd [2007] 2 HKLRD 363) …If the Plaintiff is resident in a jurisdiction which has a common law system similar to that in Hong Kong, and there is an arrangement for the reciprocal enforcement of judgments between Hong Kong and that jurisdiction, more evidence about the difficulties in enforcing a judgment may be required before the court exercises its discretion to order security for costs (Izumo Mokko Co Ltd v TS Lines Ltd (above)).”

63.In Izumo Mokko Co Ltd v TS Lines Ltd [2007] 2 HKLRD 363, it was decided that the making of an order for security for costs due to the mere fact that a Plaintiff was a foreign resident was discriminatory and unjustified and, to ensure compatibility with the Bill of Rights, the focus of the Hong Kong courts, in exercising their discretion, should be on the difficulties faced by the defendant in enforcing the judgment rather than on the status of a plaintiff.  If there were obstacles in enforcing a judgment, ordering security for costs was not discriminatory and would be justified.

64.Izumo Mokko Co Ltd v TS Lines Ltd is a decision of the District Court.  In Lim Yi Shenn v Wong Yuen Yee, supra, the Court of First Instance disagreed with it and did not follow it.  In the light of Lim Yi Shenn, I agree that the case of Izumo Mokko Co Ltd v TS Lines Ltd should not be followed.

65.In Lim Yi Shenn, the Court approached the difficulty or otherwise of enforcement of a Hong Kong judgment abroad as follows:

“The burden is upon the Defendants to satisfy me that it is just to make an order for security for costs. It is accepted, as indeed is well-settled, that there is no inflexible rule to order a foreign plaintiff to provide security for costs, although, as mentioned above, the approach of the court is to order security unless there is anything to show that it is not just to so order. It might be said that there is an evidential burden on the plaintiff to adduce some evidence to displace the initial inclination to order security (described by Godfrey J as the prima facie position in Walt Disney Co v Disney Property Agency, supra), but the legal burden rests always with the defendant making the application to satisfy the Court that it is just to make the order.” [see para 55 of Judgement]

66.As found earlier, I am not satisfied that the Plaintiff was ordinarily resident outside of the jurisdiction.  Hence, the Defendant has not discharged the burden to satisfy the Court that it is just in all the circumstances to make the order.  Had I find in favour of the Defendant, then I probably would have agreed with Mr Tse that it is incumbent on the Plaintiff to adduce some evidence to show that it is not difficult to enforce a judgment of a Hong Kong Court in the UK, which as the learned Recorder in Lim Yi Shenn said, is an evidential burden on the plaintiff to adduce some evidence to displace.

67.With respect to Mr Fan, no such evidence has been produced by the Plaintiff on this issue.  Instead, in the Skeleton Argument of the Plaintiff, it is simply asserted that there is “substantial reciprocity” between Hong Kong and the UK.  No support of this assertion has been produced.

68.To the contrary of Mr Fan’s submission, it has been stated in the Hong Kong Civil Procedure 2007, Volume 2, paragraph F4/3/2 that there is no reciprocity between Hong Kong and the UK:

“In relation to U.K. judgments, prior to the handover they were enforceable by registration under the Judgments (Facilities for Enforcement) Ordinance (Cap. 9). After the handover, the United Kingdom no longer accords reciprocal enforcement to Hong Kong judgments. Because of this, and because of s.2A(2)(b) of the Interpretation and General Clauses Ordinance (Cap. 1) [DA, tab 13], U.K. judgments are now not registrable. They have to be enforced at common law.”

69.Further, in Morgan Stanley & Co International Ltd v Pilot Lead Investment Ltd [2006] 4 HKC 93, the Court said the following:

“After 1 July 1997, the United Kingdom no longer accords reciprocal enforcement to Hong Kong judgments. By virtue of s.2A(2)(B) of the Interpretation and General Clauses Ordinance (Cap 1), UK judgments are no longer registrable under the Judgments (Facilities for Enforcement) Ordinance. They can only be enforced at common law: see Hong Kong Civil Procedure 2006, Vol 2 para F4/3/2 at p 396.” [see para 9 of Judgment]

70.In any event, the Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap 319 does not extend to the UK.

71.In the circumstances, I would reject Mr Fan’s submission that there was “substantial reciprocity” between Hong Kong and the UK.

Conclusion on security of costs issue

72.In conclusion, I am of the view that, despite a lengthy period of absence from Hong Kong, which I find to be principally for the purpose of seeking dental treatments in London and California and in recuperating from those treatments, the Plaintiff was and is ordinarily resident in Hong Kong. It is my view therefore in all the circumstances of the case it would not be fair or just to order her to pay security for costs in this case.

Application for medical reports substantiating personal injuries

73.As stated in paragraph 22 above, the Defendant’s application is based on Order 18 rule 12 (1A) which requires a medical report to be served at the same time as the Statement of Claim.  Order 18 rule 12 (1C) further provides that a “medical report” means a report “substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce the evidence as part of his case at the trial.” [emphasis added]

74.The Plaintiff had served the following medical reports at the time of serving the Statement of Claim in this case:

(i)     Medical report by Professor Cheung Lim Kwong dated 28 May 2010;

(ii)    Medical report by Professor Cheung Lim Kwong dated 10 October 2010; and

(iii)   Medico-legal report by Professor T.W. Chow dated 7 March 2011.  

75.In the Statement of Damages filed together with the Statement of Claim on 27 July 2012, it has been alleged that the Plaintiff has, amongst other things, suffered the following:

“In addition to all the pain and discomfort following each and every one of the surgical procedures, the Plaintiff also suffered from postoperative tenderness to her left gluteal muscle and, for the region of 6 weeks could only move around with the help of crutches which severely hampered her mobility. The Plaintiff also underwent treatment from a physiotherapist and was unable to conduct the normal activities of daily life without assistance.”

76.It is clear that in none of the medical reports accompanied with the Statement of Claim, the above alleged “postoperative tenderness to her left gluteal muscle” was mentioned.  The reports confined to the alleged negligent dental treatments and the resulting pain and discomfort caused to her teeth.  Nothing was said about the alleged pain to the gluteal muscle in the reports.

77.In a letter dated 11 December 2012, the Plaintiff’s solicitors purported to fulfil such requirement under Order 18 rule 12 (1A) by sending the clinical notes of the physiotherapist Ms Abby Yek Cheung to support the Plaintiff’s pleaded case in respect of the “postoperative tenderness to her left gluteal muscle”.    

78.With respect, that cannot be right.  First, clinical notes kept by a treating physiotherapist, like clinical notes kept by a treating doctor, cannot have the elevated status of a “medical report” required under Order 18 rule 12 (1A) and (1C).  Second, the rule requires such medical report will have to be served at the same time as serving the Statement of Claim for the good reason that the Defendant will need to know what case he has to meet and what report or reports he needs to call for in terms of preparing medical evidence.  Third, under the Civil Justice Reform regime, parties are encouraged to put “all their cards on the table” and to avoid taking the other side by surprise at an early stage of the proceedings.  Thus, by failing to provide such medical report to substantiate the alleged claim of tenderness to the gluteal muscle at the time of serving the Statement of Claim, the Plaintiff had essentially deprived the Defendant the chance to know the exact nature and extent of the alleged injuries at an early stage of the proceedings. Fourth, I reject the Plaintiff Counsel’s submission that because her pain from the left gluteal muscle were relatively minor and her immobility was temporary, and they only go to the assessment of quantum and joint expert(s) are likely to be instructed in due course, hence such medical report will not be required at this stage. In my view, this will defeat the whole purpose of having the requirement under Order 18 rule 12 (1A) in the first place.  In my opinion, the earlier a defendant knows about the nature and extent of a plaintiff’s injuries by looking at the medical reports served at the same time as the Statement of Claim, the more likely it will enable the defendant to make an early assessment of the plaintiff’s claim and hence likely able to lead to an early settlement or disposal of the action.  This will only conform to the spirit under the Civil Justice Reform.

79.On the alleged psychological/psychiatric “trauma”, the Plaintiff claims that she is still under treatment from her psychologist in London and that a report will be ready in due course.  Further, it has been submitted on her behalf that the “said psychiatric/psychological trauma only goes to the assessment of quantum as the causation remains unchanged.”

80.Again, with respect, I disagree.

81.Order 18 rule 12 (1C) states that a “medical report” means a report “substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce evidence as part of her case.” And such a report is required under rule 12 (1A) to be served at the same time as serving of the Statement of Claim and not at some future date when expert opinion is being served and exchanged or when a plaintiff feels it is time when his or her treating psychologist or psychiatrist is ready to serve such report.

82.The Plaintiff has failed to serve any psychological or psychiatric evidence to substantiate her alleged psychological/psychiatric injuries and therefore has failed to comply with the requirement under the abovementioned rules.

83.The Defendant in the summons pleaded that the Plaintiff should within 14 days from the date of the Order to serve the medical reports substantiating the above alleged injuries on the Defendant, otherwise, all further proceedings in this Action should be stayed pending the service of such medical reports.

84.In my judgment, while the Plaintiff should not be allowed to proceed with part of the claim where the pleaded injuries are not supported by the required medical report(s), it will be too draconian a step to stay the entire proceedings just due to such failures, particularly when there are medical reports to support the main alleged injuries and resulting dental treatments in this case.  In my view, what will be a fair and balanced way to deal with the matter will be to bar the Plaintiff from calling any evidence on the alleged ‘post-operative tenderness to her left gluteal muscle” and the psychological/psychiatric evidence unless the Plaintiff can serve such reports in support of the alleged injuries within a reasonable time. I shall give the Plaintiff 42 days to do so.  As the Plaintiff has filed and served the evidence in relation to her dental injuries and the resulting damage, there is no reason why she cannot proceed with that part of her claim in the meantime.               

85.In the aforestated premises, I am of the view that the Plaintiff has failed to fulfil the requirements under Order 18 rule 1(1A) & (1C) and I would therefore allow the application of the Defendant on this part of the summons to the extent that unless the Plaintiff serve the medical reports required to substantiate the alleged tenderness to her left gluteal muscle and psychiatric/psychological injuries within 42 days from the date of this Order, otherwise, the Plaintiff is barred from calling any evidence to support such claims at trial.    

Costs

86.Costs should follow the event and I see no reason why we should depart from such rule in this case.

87.As most of the time during the two hearings was spent on arguing the security of costs issue; and the medical reports issue effectively had been dealt with in the written submissions only, following my conclusion on the security of costs issue above, I consider that the Defendant should bear the bulk of the costs.

88.I consider that a fair apportionment in terms of time spent on the preparation of the security of costs issue vis-a-vis the serving of medical reports issue will be 90 to 10 respectively.  Therefore, I shall order the Defendant to pay the Plaintiff’s 90% costs for the above applications.

89.At the conclusion of the hearing, I have invited the parties to submit their respective statement of costs for summary assessment as I do not consider it would be fair to the winning party to be deprived of the costs incurred for the present applications until the conclusion of the case.  The parties did so on 25 and 26 February 2013 respectively.

90.I have perused the statement of costs submitted on behalf of the Plaintiff and consider that, save for a reduction of the brief fee for the adjourned hearing for submission on 19 February 2013 (which should be charged on a refresher basis) and a reduction of a total of 10 hours for the main fee earner, the rest of the claim for costs is in my view reasonable.  Thus, there will be a total reduction of HK$80,000 from the Statement of Costs submitted by the Plaintiff’s solicitors. The Plaintiff’s costs for the applications is therefore summarily assessed at HK$608,120.00.  I shall round that off at HK$608,000. 90% of that would be at HK$547,200. This will be the amount the Defendant will have to pay the Plaintiff as a result of my rulings above. Such costs shall be paid by the Defendant to the Plaintiff within 14 days from the date of this Ruling.

91.I make an order nisi of the above costs order, to be taxed if not agreed, with certificate for Counsel. The order nisi will become absolute if no application is made by either party within 14 days.

92.Lastly, I would like to thank Mr Fan and Mr Tse for their very helpful submissions. 

Mr Edward Fan instructed by Messrs Deacons, solicitors for the Plaintiff

Mr Jacob Tse of Messrs Mayer Brown JSM, solicitors for the Defendant