CHAN CHUN SHING v. CHANG CHEN CHIN t/a TONG TAK CO

HCPI 395/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 395 OF 2008

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D E C I S I O N

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1.  This hearing is held to consider whether the action should be stayed and the trial period adjourned pending a last minute application for Legal Aid by the Plaintiff.

2.  The Plaintiff was injured from falling to the ground after being hit by a fallen load.  He broke his knee, his hip joint and pelvis. 

3.  On 13 March 2009, the Master granted leave to set down and the case was set down on 27 March upon application by the Plaintiff’s solicitors.  The case is now in the Running List with two days reserved.

4.  The Plaintiff’s solicitors gave notice that the Plaintiff has applied for Legal Aid.  Hence, unless otherwise ordered by the Court, the action is stayed for 42 days pending Legal Aid application (see s. 15(4), Legal Aid Ordinance (Cap. 91) and reg. 7A, Legal Aid Regulations (Cap. 91A)).

5.  The Plaintiff has been represented by the same firm of solicitors, Messrs Huen & Partners, since April 2007.  They filed the pleadings and had the conduct of the preparation of the case so far.   The obvious question is why Legal Aid application was only made so late in the day. 

6.  It is the duty of the solicitor to explain to the Plaintiff the likely costs involved in litigation, so that the Plaintiff can make proper assessment of his means to fund the litigation.  It is also the duty of the solicitor to explain to the Plaintiff the eligibility for application of Legal Aid, so that early application is made if so required and qualified.

7.  Miss Ho, for the Plaintiff, submitted that the Plaintiff has been explained of the right to apply for Legal Aid right at the beginning and the estimate of costs and disbursement has also been explained to the Plaintiff.  However, it was only two weeks’ ago when the Plaintiff was asked to place her firm with costs on account that it was found out that he could not do so. 

8.  Miss Ho was asked why the requirement of costs on account was not explained to the Plaintiff earlier, and she gave some equivocal answer that counsel had given advice that the Plaintiff had a high chance of success. 

9.  Whether or not the party has a high chance of success and whether the litigation is to be funded with or without Legal Aid are separate matters.  I see no excuse in the failure to explain to the Plaintiff the requirement of costs on account and hence, the late application for Legal Aid.

10.  It must be born in mind that under the new rules, the trial period is a milestone date, and cannot not be changed unless for exceptional reason.

11.  Hence, I direct that this action not be stayed notwithstanding the Legal Aid application, and the solicitors for the Plaintiff do stay on the record and do proceed to instruct counsel on behalf of the Plaintiff without any costs of accounts being placed.  Miss Ho did not have anything to say to that.

12.  This hearing was necessitated by reason of the late application for Legal Aid, and I order the Plaintiff do pay costs to the Defendant for the appearance.  It make the summary assessment of $1,000 for the Defendant.