Cheng Kwing Yeung v. Hong Kong Ham Holdings Ltd

CACV 24/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2014

(ON APPEAL FROM THE DISTRICT COURT IN DCPI NO 736 OF 2011)

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DECISION ON COSTS
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Hon McWalters JA (giving the decision on costs of the court):

Introduction

1.This action is a claim by the plaintiff for damages for injuries sustained from a workplace accident.  The plaintiff’s claim was dismissed by the trial judge and the plaintiff appealed, with leave, to the Court of Appeal. The details of the accident and the plaintiff’s claims for damages are set out in our judgment of 27 January 2015.  By that judgment we allowed the appeal, quashed the order of the judge and ordered that the plaintiff’s claim be retried before another judge.  In respect of the costs of the appeal we made an order nisi that the costs of the appeal be awarded to the appellant. The defendant applies to vary the costs order nisi to an order that the costs of the appeal will be costs in the cause in the retrial. 

The submissions of the parties

2.Underlying the defendant’s submissions is the fact that the plaintiff was awarded $522,764,62 under the Employees’ Compensation Ordinance, Cap 282 and the possibility that even should the plaintiff ultimately prevail with his suit he will not obtain damages in excess of his Employees’ Compensation (“EC”) award.  The defendant complains that, through no fault of its own, it now has to incur further costs in defending a second trial.  The grievance of the defendant is compounded by the inexplicable failure of the trial judge to deal with quantum notwithstanding his views on liability.  Thus the defendant argues that the plaintiff should only receive the costs of his appeal should he succeed on the retrial.

3.The defendant argues that the discretion to award costs should be exercised by taking account of the wide range of considerations and by making an order that is fair and does justice to the parties.  It submits that of the relevant circumstances within the wide range of considerations is that on a retrial should the plaintiff not succeed on liability or even if successful should his damages not exceed his EC award then his action will be dismissed and he will be ordered to pay the defendant’s costs.  Should that happen then an injustice will be created for the defendant will have been penalized by having to pay the costs of the appeal.

4.The plaintiff argues that notwithstanding the defendant’s apparent acceptance now that there were flaws in the reasoning in the judgment the defendant tried to uphold that judgment on appeal.  The plaintiff is entitled to a fair trial of his claim and he has had to come to the Court of Appeal to achieve that.  In these circumstances the plaintiff argues that there is no justification for departing from the costs follow the event principle.

Discussion

5.It is not appropriate for us to express our views on the plaintiff’s chances of success in either establishing liability or obtaining damages in excess of the EC award.  In respect of the former all we can properly say is that there is nothing in the papers that we have seen that would suggest the plaintiff is bound to fail.  The plaintiff has a claim which he is entitled to have fairly adjudicated.  In respect of the damages claim we do not have the benefit of an adjudication by the trial judge and so we cannot say what the likelihood might be of the plaintiff obtaining damages in excess of the EC award.  In the particular circumstances of this case we do not agree that either of these matters are relevant to the exercise of the costs discretion.

6.Having reached this view we see little reason to depart from the costs follow the event principle.  Just as the defendant is entitled to justice from the court process, so is the plaintiff.  In order to obtain the fair hearing of his claim to which he is entitled the plaintiff had to come to the Court of Appeal.  Should he not succeed at trial then the defendant will obtain the costs of those proceedings.  That, it seems to us, is the outcome which achieves fairness and justice to both parties.

Conclusion

7.For these reasons we decline to vary the costs order nisi.  The costs of this application form part of the costs of the appeal.

Written submission by Ms Jennifer Tsui, instructed by Cheng, Yeung & Co, assigned by DLA, for the plaintiff (the appellant)

Written submission by Mr Ashok K Sakhrani, instructed by Munros, for the defendant (the respondent)