FU LOK MAN JAMES t/a LOKIE LEATHERWARE MANUFACTURING CO v. CHIEF BAILIFF OF THE HIGH COURT

HCA11796/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.11796 OF 1996

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D E C I S I O N

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1. This is an appeal against a master's decision. It concerns the enforceability of a costs order made against the plaintiff following a High Court Action.

2. The plaintiff had sued the "Chief Bailiff of the High Court" following interpleader proceedings. The Bailiff had sold certain chattels to satisfy a judgment. In the High Court proceedings, the plaintiff who was the true owner of the goods sued the Chief Bailiff for the difference between the proceeds of sale and their true value.

3. The plaintiff's action came before Suffiad J and was unsuccessful. As part of his order the learned judge gave "costs to the defendant" (on a nisi basis). In the proceedings at first instance, the plaintiff did not have the benefit of legal aid.

4. The plaintiff appealed to the Court of Appeal. On appeal, the plaintiff was legally aided. The appeal was unsuccessful and costs were again awarded to the defendant.

5. The legal aid fund met the costs order in the Court of Appeal proceedings. However, the plaintiff did not pay the costs order made by Suffiad J. Consequently, the Department of Justice, on the defendant's behalf, took out a charging order. Before the learned master they applied to make the charging order absolute, however the learned master discharged the charging order. Against that decision the defendant now appeals to this court seeking an order that the charging order should have been made absolute.

6. In a nutshell, the plaintiff contends that because of what was said by the Court of Appeal in its judgment against the plaintiff, "the defendant" (namely "the Chief Bailiff of the High Court") does not exist as a legal entity, therefore there is no-one to whom the costs can lawfully be paid.

7. Mr Simon Chiu, for the plaintiff, accepts that his grounds for resisting the costs order only arise because of what was said in the Court of Appeal. The identity of the defendant was not the only issue between the parties, both at first instance and on appeal, but it was an issue which took up considerable time (the trial at first instance took 10 days). On appeal Rogers JA said "There is no such person and no such office in law as the Chief Bailiff" and "The name of the defendant could not simply be amended on the basis of a misnomer because there was no such person as the "Chief Bailiff"."

8. On appeal, Mr Chiu had tried to persuade the court that he was entitled to a judgment against an "individual" in the name of the defendant rather than against the "office" of the defendant. His attempts to amend the name of the defendant to this end were met with the following statements in the judgment, per Godfrey JA :

"Mr Chiu got into insuperable difficulties in trying to identify who that individual [described as 'The Chief Bailiff'] was, because in fact there is no office of 'Chief Bailiff', ... "

and later :

"it seemed to us impossible to allow an amendment to the title of these proceedings which would, in effect, bring a potential liability to a person who had not hitherto appreciated the fact that he would be personally liable".

9. As Mr Chiu's submission in this appeal depends entirely on what was said in the Court of Appeal it is necessary now to revisit (a) the Court of Appeal's judgment and (b) the basis of the appeal from Suffiad J.

The Court of Appeal Judgment

10. The Court of Appeal proceeded on the basis of Suffiad J's judgment that the proceedings brought at first instance were against an "office" not an "individual" in his or her personal capacity. Suffiad J's ruling on this issue was not the subject matter of the appeal. The Court of Appeal agreed that it was an office being sued and held it would not permit the plaintiff to advance its case against an individual or individuals within that office. The Court of Appeal also upheld the finding that, in the case of the Bailiff's office, there could be no vicarious liability. The Court of Appeal also upheld Suffiad J on other issues which are not material to this appeal.

Suffiad J's judgment

11. At first instance there was considerable legal argument about who was being sued. In his judgment he said this :

"There can be no doubt in my mind that in naming the Defendant as 'Chief Bailiff of the High Court', in seeking reliance on Section 54 of the Interpretation and General Clauses Ordinance Cap 1, and in the light of the argument advanced by Mr Chiu as to the identity of the Defendant sued in this case, the Plaintiff was suing the office of the Chief Bailiff of the High Court rather than any particular individual holding that office at any particular time ..."

Section 54 of Cap.1 provides :

"In any Ordinance, instrument, warrant or process of any kind, any reference to a public officer, or to a person holding a public office by a term designating his office, shall include a reference to any person for the time being lawfully discharging the functions of that office, or any part of such functions, and any person appointed to act in or perform the duties of such office, of any such duties, for the time being."

12. The real purport of this judgment is that the defendant was an office, not an individual.

13. Mr Chiu attaches great significance to the use of the expression "The office of the Chief Bailiff" which, he argues (only as a result of the Court of Appeal's finding) is an entity which cannot receive any costs because it does not exist.

14. However, it is plain, in my judgment, that the only sensible meaning that is attributable to Suffiad J's expression is that the plaintiff was suing "the office" which employed, inter alia, an individual or individuals who were in fact called "the Chief Bailiff of the High Court". (In fact, two individuals held this title). This finding was not the subject matter of the appeal and Mr Chiu, on appeal, was not allowed to "move the goalposts" to direct his attack on an individual defendant rather than a departmental defendant. Suffiad J had described the claim against the "Chief Bailiff" as misconceived, not because such an office did not exist but because of, as he said :

"The principle that a superior Crown servant is not liable, whether vicariously or as a principal, for the tort of a subordinate ..."

The "superior Crown servant" in our case being the person with the title of Chief Bailiff.

Validity of the costs order at first instance

15. Returning to the issue on this appeal, in light of the foregoing, Suffiad J's final paragraph of his judgment is plainly a valid and enforceable order.

16. It states :

"In all the circumstances of this case, I find that the bailiff ought to be given the common law protection. On this footing, I would also dismiss the Plaintiff's claim. I shall make the usual cost order nisi that costs should follow the event. The Plaintiff's claim is therefore dismissed with costs to the Defendant."

17. Mr Chiu readily acknowledges that his submission hinges entirely on the use of the word "chief" in the named defendant. Absent the word "chief" and he concedes he has no argument. With the word "chief" he contends he has an argument. I disagree. Both the court at first instance and on appeal determined that it was the office of bailiff which was being sued. It was the office of bailiff who accepted the writ and the office of bailiff which turned up at court to defend and was put to expense.

18. Section 52A of the High Court Ordinance provides :

"52A - (1) Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the Court of First Instance, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.

(2) Subject to specific provision made in this or any other Ordinance (other than subsidiary legislation) nothing in subsection (1) shall authorize an award of costs against a person who is not a party to the relevant proceedings."

19. Neither court had any doubt as to who the defending party was. "Costs following the event" means that the loser pays and the winner is paid. "The event" in this case was the unsuccessful action by the plaintiff against the bailiff's office (as all courts, including this one, recognized).

20. I allow the appeal, substitute an order that the charging order be made absolute and make a costs order nisi here and below against the plaintiff and in favour of the office of the bailiff of the High Court.