MOMIN LOK v. HOSPITAL AUTHORITY

HCPI 981/2014

[2020] HKCFI 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 981 OF 2014

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BETWEEN

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D E C I S I O N

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1.  On 4 June 2020, I handed down my judgment after the trial of the preliminary issue of limitations in this action. I also directed the parties to exchange written submissions on the issue of costs, including any outstanding and reserved costs, and to exchange written submissions in reply. This is my ruling as to costs.

2.  The defendant’s submissions included a helpful chronology and table of outstanding and reserved costs.  I replicate the same below:

	Date	Hearing/ Applications/ Action taken by parties	Order/ Direction on costs	Reference
1	24.3.16	P’s Limitation Summons: application to allow action to proceed notwithstanding s.27 LO, per s.30 LO.		A/5/39-41
2	16, 19.5.17	Directions and checklist review hearing, Bharwaney J: preliminary trial of limitation issue ordered.	Costs of hearing 19.5.17 reserved	Letters from court, 16.5.17,1.6.17 and 13.6.17; Order dd19.5. 17;
3	20.6.17	Order, Bharwaney J: leave to P to amend Limitation Summons	Costs in the cause of Summons	A/7/45
4	17, 18.5.18	Preliminary trial of P’s Limitation Summons coram Bharwaney J. On Court’s dissatisfaction with P’s evidence and on Court’s invitation, P applies to file and serve further evidence; leave granted; trial adjourned part heard.	Costs reserved	Order dated 18.05.2018 §§1-3 A/18B/117-10 to 12 Judgment 4.6.20 §§2,3
5	7.6.18	2nd Affidavit of J.C.N. Millar (JCNM 2) and exhibits. P claims privilege in respect of exhibits (§5).		A/18A/117-1 to -9
6	6.7.18	P’s limited waiver of privilege for exhibits to JCNM 2.		D/509 §6
7	13.7.18	HA’s consequential Application for discovery by list in accordance with O.24 RHC (i.e. identifying those for which privilege claimed) and for specific discovery of 5 categories of documents on affidavit, and for leave to further cross-examine P and Mr. Lok at adjourned preliminary trial.	Costs Orders outstanding	D/505, 506; Ruling 19.2.19 §6.
8	7.9.18	Bharwaney J directs written submissions on HA’s appn. for discovery and hearing; grants leave to HA to further cross-examine P and Mr. Lok at adjourned preliminary trial.	Costs order on further xx outstanding	Order dd. 07.10.2018 A/18C/117-13 to -15 D/521, 522;
9	13.12.18	Hearing, HA’s application for discovery. Order, Bharwaney J to P to file a further list of documents in accordance with O.24 RHC.	“Costs of today” reserved ; Order for costs on D’s discovery application outstanding	Order dated 13.12.2018 A/18G/117-47; Ruling 19.2.19 §7
10	31.12.18	Order, granting P’s application for extension of time for compliance with discovery order of 13.12.18.	No costs order made (outstanding)	Order dd. 31.12.2018 A/18H/117-49
11	31.12.18	Directions including hearing on 22.1.19 for further submissions on the issue of waiver of privilege		Letter from court dd. 31.12.2018 D/574-575
12	11.1.19	P’s List of Documents; List unclear, privilege claim made.		A/18E/117-21 to 30 Ruling 19.2.19 §§9-12.
13	18.1.19	Bharwaney J, directions for submissions whether P had waived privilege over documents in Sch. 1, Pt.1 of her List dd.11.1.19; vacates hearing fixed for 22.1.19.	No costs order made (outstanding)	Letter from court with directions dd. 18.01.2019 D/633-635; Ruling 19.2.19 §12
14	14.2.19	3rd Affidavit of J.C.N. Millar (JCMN 3); exhibits P’s List of Documents as “JCNM-4”.		A/18D/117-16 to 20
15	19.2.19	Ruling, Bharwaney J: dismisses P’s claim of limited waiver of privilege; grants leave to P to withdraw JCNM 2 within 14 days; directs further submissions as to discovery henceforth.	No costs order made (outstanding)	Ruling 19.2.2019 §§13, 21, 22 A/18F/117-31 to 46
16	4.3.19	P expressly waives privilege claimed for documents in Sch. 1 Part 1 of List dd 11.1.19 and exhibits to JCNM 2.		D/666 §§2-5
17	18.3.19	Bharwaney J, Directions: vacates hearing fixed on 27.3.19	No costs order made (outstanding)	D/688-689
18	7.5.19	P’s Summons to revoke order for cross-examination of P or for leave to give evidence by video link for admission of JCNM 3 and for directions for trial, submissions and costs.		A/18I/117-51 to-53
19	11.6.19	Order, Bharwaney J dismissing P’s application to revoke order for xx of P; granting conditional leave to P to give evidence by video link; timetable for written closing submissions.	Costs of and incidental to P’s summons of 7 May 2019 be in the cause of the preliminary trial	Order dd. 11.06.2019 A/18J/117-54 to 56
20	26.9.19	Preliminary trial resumes; P attends in person.		Judgment dd. 04.06.2020
21	4.6.20	Judgment on P’s Limitation Summons dd. 24.3.16	P succeeds; parties to provide written submissions on costs, including outstanding and reserved costs, by 25.06.2020	Judgment dd. 04.06.2020 §§64,66.

3.  The outstanding and reserved costs cover not only the costs of the trial of the preliminary issue but also the costs of interlocutory proceedings incurred between 18 May 2018, when the trial was adjourned, and 26 September 2019, when the trial resumed and was concluded. These interlocutory costs have been identified in rows 7-11, 13, 15, and 19.

4.  I have carefully considered the parties’ submissions on these interlocutory costs. I am not persuaded that I ought to depart from the principle that costs should follow the event. I order that the costs of:

(a) the defendant’s application for discovery (rows 7, 8, 9, and 10);

(b) the defendant’s application for leave to cross-examine the plaintiff and Mr Lok (rows 7 and 8);

(c) the determination of the plaintiff’s assertion of privilege (rows 11, 13 and 15); and

(d) the plaintiff’s application to revoke my order for cross-examination and for leave to give evidence by video link (row 19);

be paid by the plaintiff to the defendant in any event, to be taxed, if not agreed. Insofar as it may be necessary to do so in order to give effect to the order that I am now making, I vary the scope of §9 of my order dated 11 June 2019.  §9 states that the costs of and incidental to the [plaintiff’s] summons [of 7 May 2019] be in the cause of the preliminary trial.  I vary §9 by directing that the order therein is not to apply to the plaintiff’s application, by the said summons, to revoke my order for cross-examination and for leave to give evidence by video link. I further order that the plaintiff’s own costs in respect of these matters be taxed pursuant to the Legal Aid Regulations.

5.  It is common ground that the plaintiff succeeded on the limitations issue and should be awarded the costs of the trial of that issue, including the costs of the plaintiff’s limitations summons; and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.  Those costs would include the reserved costs identified in the table above on rows 2 and 4, the costs ordered to be in the cause identified in row 3, and the costs of the further directions in respect of the resumption of the trial of the preliminary issue identified in row 17.

6.  However, the defendant submits that the defendant should not be required to bear the plaintiff’s costs, or its own costs, incurred by the plaintiff’s application on the afternoon of 18 May 2018 to adduce additional evidence, if she wished to do so; and the costs of and occasioned by the adjournment required by the plaintiff in order to do so (identified in rows 4 and 20).

7.  The following exchange took place between the defendant’s counsel and myself on the afternoon of 18 May 2018:

“MR KAT: And my Lord, I hate to do this with the Legal Aid Department but I must ask that today’s costs, the costs of this application...

COURT: We will talk about costs later. The case has been going on till about 2.30 today on a normal basis, although of course I had to ask a lot of questions in relation to the evidence that was being presented to me, but nevertheless it’s been going on, on a normal basis. So as far as the costs of this afternoon are concerned, 2.30 to 4.30, I will reserve them for future argument.”[1]

8.  I accept the defendant’s submissions in respect of the costs of the hearing on the afternoon of 18 May 2018. The hearing that afternoon concluded at 3:56 pm. I order that the costs of the hearing on the afternoon of 18 May 2018 from 2:30 pm to 3:56 pm be paid by the plaintiff to the defendant in any event, to be taxed, if not agreed; and that the plaintiff’s own costs in respect of the said hearing be taxed pursuant to the Legal Aid Regulations.  However, I do not accept the defendant’s submissions that the costs of and occasioned by the adjournment to enable the plaintiff to adduce additional evidence be awarded to the defendant. The additional evidence that was adduced was relevant to the matters in issue. If that evidence had been adduced at the outset, it is likely that the hearing would have lasted three days instead of two. Accordingly, the costs of the hearing that took place on the third day of the preliminary trial on 26 September 2019 was not an additional cost occasioned by the late application to adduce relevant evidence.

9.  The plaintiff submits, on the other hand, that she was not only entitled to the costs of the preliminary trial but also to the costs of the action incurred up to the date of my judgment on 4 June 2020; and that such costs should be paid forthwith. I see no merit whatsoever in the submissions.

10.  I order that the costs of the trial of the preliminary issue, including the costs of the plaintiff’s limitations summons, be paid by the defendant to the plaintiff in any event, to be taxed if not agreed; and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

11.  Finally, I make an order that the costs of this application be paid by the plaintiff to the defendant in any event, to be taxed, if not agreed; and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

12.  I further order that the costs I have ordered in favour of the plaintiff be set off against the costs I have ordered in favour of the defendant.