Wong To Yick Wood Lock Ointment Ltd v. Wah Sing Pharmaceutical Ltd and Others

HCA 1605/2011
HCA 1603/2011
HCA 1606/2011
HCMP 574/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NOS 1605 OF 2011, 1603 OF 2011 AND 1606 OF 2011

MISCELLANEOUS PROCEEDINGS NO 574 OF 2012

BETWEEN

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(Consolidated pursuant to the Order of
Deputy High Court Judge Carlson dated 23 May 2012)

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D E C I S I O N

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The application

1.The dispute between the plaintiff and the defendants is on costs for the plaintiff’s summons for the defendants to answer the interrogatories served on the defendants on 20 November 2013 and to answer the plaintiff’s Request for Further and Better Particulars of the Answer to the Interrogatories scheduled to be heard today.  The plaintiff’s summons was, by consent, vacated because the defendants agreed to accede to the plaintiff’s requests by way of supplemental affirmations to answer the interrogatories and give the particulars.  The plaintiff agreed to vacate the hearing on 13 June 2014 and asked for costs.  The defendants agreed to pay the costs of the application and the hearing except the counsel’s fee.

Discussion

2.It is trite law that the question of costs is a matter of the court’s discretion, having regard to the relevant legal principles.  Order 62 rule 5 provides the relevant factors for the court’s consideration, of which I cite the relevant parts:

“5. Special matters to be taken into account in exercising discretion (O. 62, r. 5)

(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account- (L.N. 152 of 2008)

(aa) the underlying objectives set out in Order 1A, rule 1; (L.N. 152 of 2008)

(e) the conduct of all the parties; (L.N. 152 of 2008)

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (L.N. 152 of 2008)

3.As the plaintiff’s summons has been dealt with by consent, the Court will not consider the merit of the application and the reasons for its opposition.

4.The defendants’ argument against paying counsel’s fee is that it is not difficult to deal with the interrogatories.  A competent solicitor should be able to handle it.

5.It will be helpful to have reference to the sequence of relevant events as set out in the plaintiff’s letter to the defendants dated 7 June 2014.  It highlights that the parties were represented by counsel at the Case Management Conference on 30 April 2014 where defence counsel proposed to argue the plaintiff’s summons in a hearing fixed for two hours.  This Court had accommodated the parties by giving a return date of 13 June 2014, a relatively fast track date for the parties.

6.It can be seen that plaintiff’s summons had received defence counsel’s attention at the Case Management Conference.  Whereas the defendants are represented by counsel all along since the Case Management Conference up to date, to say that the matter is easy for a competent solicitor to handle and the plaintiff’s counsel’s fee should be disallowed seems to strain the argument to the extreme.  For the sake of fairness, the plaintiff should be allowed to instruct counsel to deal with this summons.  In fact, even for argument on this issue of counsel’s fee alone, the defendants have instructed counsel to submit the written submissions.

7.In the circumstances, I allow the plaintiff’s counsel’s fee for this application and the hearing.

8.The costs of this application, including the costs reserved and for today’s hearing (with counsel’s certificate) are to be assessed under Order 62 rule 9A at $70,000 to be paid by the defendants within 14 days from the date hereof.

Case management directions

9.This Court now has to consider what further directions for the progress of this matter.  With the assistance of respective counsel, the following directions are to be given:

a. The matter be adjourned to 12:00 noon on 26 November 2014 for the 5^th Case Management Conference;

b. By consent, there be an order in terms of paragraphs 1 and 2 of the plaintiff’s summons dated 25 April 2014;

c. The defendants shall, within 14 days from the date hereof take out an application for leave to serve the supplemental witness statement, if so advised;

d. The plaintiff shall obtain Counsel's advice within 28 days after receipt of the particulars and the defendants’ application for leave to serve the supplemental witness statement;

e. All interlocutory applications as may be advised shall be taken out within 14 days thereafter;

f. Costs of the hearing on the case management directions (15 minutes) be in the cause.

Mr. Colin Shipp, instructed by William W.L. Fan & Co., for the plaintiff

Ms. Eunice Yung, instructed by Jesse H.Y. Kwok & Co., for the defendants