Bushra Bibi and Others v. Method Building & Engineering Works Limited (in Liquidation) and Others
Read the full judgment text of HCPI 301/2012 on BabelCite. This High Court CFI judgment was delivered on 31 March 2015.
1. In my decision in this matter on 6 March 2015, I had indicated that the only outstanding matter on costs was the costs incurred by Madam Calinog on the issue of liability in HCPI 301/2012. There were 2 aspects of these costs to be dealt with: the pre-trial costs and the costs of the attendance by Mr Burke at the one day trial on liability that took place on 27 March 2014. The 1 st and 2 nd defendants have agreed to pay the costs of the former to be taxed on a common fund basis provided that t
Cited by 10 cases
|
HCPI 301/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 301 OF 2012 ---------------------------------- BETWEEN
----------------------------------
Date of Hearing: 23 July 2014 Date of the Written Submissions: 27 & 28 August, 2014, 4 November 2014, 8 January 2015, 16 March 2015 and 26 March 2015 Date of Decision: 31 March 2015 -------------------- D E C I S I O N -------------------- 1.In my decision in this matter on 6 March 2015, I had indicated that the only outstanding matter on costs was the costs incurred by Madam Calinog on the issue of liability in HCPI 301/2012. There were 2 aspects of these costs to be dealt with: the pre-trial costs and the costs of the attendance by Mr Burke at the one day trial on liability that took place on 27 March 2014. The 1st and 2nd defendants have agreed to pay the costs of the former to be taxed on a common fund basis provided that there was no duplication of the work done by the solicitors of Madam Bibi. They do not agree to pay the latter costs and relied on §42 of my decision handed down in this case on 16 April 2014 in support of their stance. Mr Burke responded to those submissions by his submissions dated 4 November 2014[1], in the course of oral submissions at the hearing of the interim payment application on 16 December 2014[2], and by his letter dated 8 January 2015[3]. 2.On 6 March 2015, I directed the solicitors for the 1st and 2nd defendants to reply in writing to these submissions within 14 days’ of the receipt by them of the transcript of the hearing on 16 December 2014, so as to enable me to deal with this outstanding matter properly. This they did on 16 March 2015. After perusing the same, I directed Mr Burke to identify those parts of the transcripts of the hearings in this case which recorded that I had invited him to participate on the trial on liability. This he did on 26 March 2015. 3.Let me deal with the non controversial part of the outstanding costs on liability. I order the 1st and 2nd defendants to pay the pre-trial costs incurred by Madam Calinog on the issue of liability in HCPI 301/2012, to be taxed on a common fund basis, provided that there was no unnecessary duplication of the work that had been performed by the solicitors of Madam Bibi. Clearly, the perusal of documents relating to the issue of liability by Mr Burke and by the solicitors of Madam Bibi cannot be said to be unnecessary duplication of work. Examples of unnecessary duplication of work would include both sets of solicitors engaging separate experts on liability or both sets of solicitors taking witness statements from the same persons. The taxing master would be well able to disallow the costs incurred by Mr Burke that fall within this category. 4.So far as the costs of the attendance by Mr Burke at the one day trial on liability are concerned, I am guided by my observations in §42 of my decision handed down in this case on 16 April 2014 where I said:
5.The 1st and 2nd defendants rightly rely on the above in support of their submissions that they ought not to be ordered to pay costs of 2 sets of solicitors at the trial on liability, that no good reason has been shown by Mr Burke why they ought to do so, and that the invitation of the court to Mr Burke to attend the trial on liability on a watching brief does not constitute good reason. 6.The latter was a reference to the exchange between the court and the parties’ solicitors that took place at a directions hearing on 21 January 2014 and which I set out below:
7.It must be appreciated that the guidance provided by my decision of 16 April 2014 came after the trial on liability which took place on 27 March 2014. Nevertheless, I had made it clear to Mr Burke at the hearing on 21 January 2014 that he must bear in mind the costs implications of his attendance at the trial on liability on a watching brief on behalf of Madam Calinog, notwithstanding my invitation to do so, because if the Fatal Accidents Ordinance only permitted one action to be brought, the defendants might not be liable to pay the costs of 2 sets of solicitors at the trial on liability. What I said on 21 January 2014 is consistent with the guidance I gave on 16 April 2014. I agree with the submissions of the 1st and 2nd defendants that the invitation I extended on 21 January 2014 was not a very good reason to support an order that they pay the costs of Mr Burke’s attendance on a watching brief at the trial on liability. 8.Is there other very good reason why I should make the order sought in favour of Madam Calinog? 9.Mr Burke did not take an active part in the trial on liability. He attended on a watching brief. But he did provide assistance to Mr Clough, counsel for Madam Bibi, at the trial on liability. It is clear to me that the substantial part of the pre-trial preparation of the case on liability had been done by Mr Burke[4], not by the solicitors of Madam Bibi, as evidenced by his application for specific discovery of documents relevant to the issue of liability on 21 January 2014, and that he was more familiar with the case and better able to provide assistance to counsel at the trial on liability than the solicitors for Madam Bibi. 10.I had directed on 21 January 2014 that solicitors for Madam Bibi ought to have the conduct of the trial on liability, as Letters of Administration had been granted to her, and that Mr Burke could attend on a watching brief. That trial took place on 27 March 2014 before the guidance I had provided in my decision on 16 April 2014. 11.In the exceptional circumstances of this case, I think the assistance rendered by Mr Burke and the greater interest of Madam Calinog in the outcome of the trial on liability, as attested by the apportionment of a substantial part of the agreed damages in her favour[5], amount to very good reason why I should order the 1st and 2nd defendants to pay the costs of Mr Burke attending the trial on liability on a watching brief on behalf of Madam Calinog. 12.After the guidance I gave on 16 April 2014, I very much doubt that the same ground can be invoked in future by solicitors acting for dependants who have not been given the conduct of the trial on liability and who also attend the trial on liability on watching brief basis. In future, the dependant who has the majority stake in the litigation is likely to be given conduct of the trial on liability[6]. 13.I order the 1st and 2nd defendants to pay to Madam Calinog the costs of Mr Burke attending the trial on liability on a watching brief, including the costs of this application, and further order that those costs be taxed on a party and party basis. I also direct that Madam Calinog’s own costs be taxed pursuant to the Legal Aid Regulations.
Mr Neal Clough, instructed by Massie & Clement, assigned by DLA, for the 1st and 2nd plaintiffs Mr Chris Chuang, of Cheng, Yeung & Co, for the 1st and 2nd defendants Mr Chan Chi Keung, of Bennett Chan & Co., for the 3rd defendant Mr Patrick Burke, of Burke & Co., assigned by DLA, for Madam Calinog [1] Set out in §§11 to 19 thereof and specifically that Mr Burke was invited by the court to attend. [2] That Mr Burke had been invited to attend, that Madam Calinog had a fundamental interest in the outcome of the trial on liability, and that Mr Burke had assisted in the progress of the trial. [3] That Mr Burke had been invited to attend and took an active part in the trial. [4] For good reason, as Madam Calinog had a greater interest in the outcome of the case. [5] See §7 and the apportionment table thereunder of my decision of 6 March 2015. [6] See §§37 to 41 of my decision on 16 April 2014. |
Other judgments that cite this case
Further hearings and rulings under HCPI 301/2012