Gurung Devchandra v. Pacific Construction (HK) Co Ltd and Others

HCPI 138/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 138 OF 2011

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D E C I S I O N

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1.By the summons dated 25 July 2014, the defendants seek an order that the judgment on interest be amended.  They also seek a variation of the costs order nisi that I made at the time of judgment, which was that the defendants should pay the plaintiff his costs, to be taxed if not agreed, on the District Court scale.

2.As regards the application to amend my judgment on interest, this matter was agreed at trial.  The relevant audiotape has been played to Mr Gidwani this morning and he has accepted that it confirms that the matter was agreed towards the end of closing submissions at trial on 25 June 2014. That being so, Mr Gidwani no longer pursues this part of his summons and accepts that the question of interest was agreed.

3.It was agreed that the plaintiff was entitled to interest on the award for PSLA at 2% per annum from date of writ 25 February 2011 to judgment and on the award for the agreed special damages of $7,500 at 4% from the date of accident to judgment.

4.As Mr Gidwani has accepted that he no longer wishes to pursue this part of the summons, I need say no more about the application to amend my judgment on interest. 

5.The other part of the summons is to seek to vary my costs order nisi. Taking into account the interest awarded, the total judgment sum, with interest, exceeds the sanctioned payments by about a few thousand dollars. There were three sanctioned payments made by the defendants, the first in the sum of $225,000 on 11 March 2011, the second in the sum of $60,000 on 13 August 2011, and the third in the sum of $200,000 on 20 January 2012.  The total of the sanctioned payments amounts to $485,000.  The judgment sum was $478,908, with interest.

6.Mr Gidwani has, this morning, recalculated the interest on the agreed special damages of $7,500 and on PSLA, amounting to a total of about $12,613.  Adding this sum to the judgment sum of $485,000 gives a figure of $491,521.  Thus the plaintiff has beaten the sanctioned payments by about $6,000.

7.Mr Gidwani does not rely on the de minimis rule.  He submitted that in the light of the unreasonable conduct of the plaintiff as detailed in his submissions, the plaintiff should be deprived of his whole costs.  He submitted that the plaintiff should be ordered to pay his own costs as from the last day for the acceptance of the last sanctioned payment, namely, from 17 February 2012.

8.I disagree.  I have considered all the submissions of Mr Gidwani and the authorities that he relies on.  Each case depends on its own facts. The authorities are distinguishable on their own facts. 

9.The relevant principles have been reiterated in the authorities.  A succinct recitation of the principles can be found in the decision of Master Ko in Wong Ka Ming v Ng Yin King & Another (HCPI 760/2009, 22 July 2011) at paragraphs 12 to 14 of his decision. 

10.Master Ko in Wong Ka Ming at paragraph 18 also relied on what Evans LJ said in Charm Marine Incorporated v Elborne Mitchell (unreported, 22 July 1997).  This is conveniently set out in Master Ko’s decision at paragraph 18 as follows:

“In Charm Marine Incorporated v Elborne Mitchell, Evans LJ said:

‘Should the established rule be qualified, therefore, by reserving to the court some power to order the plaintiff to pay the defendant’s costs after the date of payment in where the payment in came close to matching the amount of the award, even though it fell short of doing so? I think not, essentially for four reasons:

(1) If the plaintiff recovers more than was available to him, then he has succeeded on what became the lis or issue at the trial, as described by Somervell LJ. However small the margin, if he does recover more, he cannot be said to have failed;

(2) The advantages of a clear‑cut rule outweigh, in my judgment, the consequence of introducing a discretionary element which could lead to uncertainty and give scope for prolonged post‑judgment debate;

(3) ...

(4)  A clear‑cut rule means that the defendant must not underestimate the plaintiff’s chances of success, by however small an amount, just as the plaintiff must not be over‑optimistic about them.  This is consistent, in my view, with the policy considerations described by Denning LJ in Findlay v Railway Executive [1950] 2 All ER 969, [1950] WN 570 at 974 of the former report’.”

11.In my view, the defendants could have added a bit more to the last sanctioned payment and the result will be certain and different on the question of costs.

12.Essentially, the main conduct relied on by the defendants is that the plaintiff has inflated his claim and has been exaggerating his symptoms. That the plaintiff was exaggerating his symptoms was not a matter that took the defendants by surprise at the trial.  Even before the sanctioned payments were made, the defendants had been advised by their medical expert, Dr Lam.  It was clearly his view that the plaintiff was exaggerating his symptoms.  The video surveillance evidence relied on at trial was already available to the defendants well before the sanctioned payments were made by them.  It seems to me that the defendants could have protected their position by making a slightly higher sanctioned payment, but they did not.

13.As I said, I have considered all of Mr Gidwani’s submissions.  I accept also that the court has a wide discretion as to costs.  I am not satisfied that I ought to vary my costs order nisi made at the time of judgment.  I dismiss the application.

(Submission on costs)

14.The summons is dismissed with costs to the plaintiff, such costs to be taxed, if not agreed, on the District Court scale, with a certificate for counsel.

Mr Enzo W H Chow, instructed by Lim & Lok, for the plaintiff

Mr Victor Gidwani, instructed by Cheng, Yeung & Co, for the 1^st and 2^nd defendants