SO KAI WING v. SINO ESTATES MANAGEMENT LTD

DCPI 3443/2021

[2025] HKDC 176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3443 OF 2021

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DECISION

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A.  Introduction

1.  This is the defendant’s application to vary the costs order nisi made by the court in the judgment dated 12 November 2024 (the “Judgment”).

2.  The trial of this personal injuries action took place on 16 to 18 October 2024. In the Judgment, the court dismissed the plaintiff’s claim and made a costs order nisi that the plaintiff do pay the defendant its costs of the action (the “Costs Order nisi”).

3.  By a summons dated 20 November 2024 (the “Summons”), the defendant applied to vary the Costs Order nisi to costs on an indemnity basis, to be taxed if not agreed, with Certificate for Counsel (the “Application”).

4.  On 26 November 2024, the Court ordered (the “Order”), inter alia, that the Application be dealt with by way of paper disposal.

5.  On 9 December 2024, the plaintiff filed a Notice to Act in Person dated 6 December 2024.

6.  The plaintiff has failed to file any affirmation in opposition or written submissions in accordance with the Order.

B.  The Application

7.  In the Application, the defendant relies on the ground that it had made previous offers to the plaintiff to settle the matter or at least to agree on the amount of quantum, all of which were not accepted by the plaintiff.

8.  On 26 January 2022, which was after the plaintiff has filed his Statement of Claim but before the defendant filed its Defence, the defendant’s solicitors, Messrs Mayer Brown (“Mayer Brown”)[1], wrote to the plaintiff’s then solicitors, Messrs Wong & Co, Solicitors (“Wong & Co”), sending a copy of the relevant CCTV footage to the latter, setting out their reasons for believing that the plaintiff “stands no chance to successfully assert a claim of negligence” and offering to settle the matter on a drop-hand basis, ie if the plaintiff discontinued the claim against the defendant, the defendant would not claim costs against him (the “1^st Offer”).

9.  The plaintiff did not respond to the 1^st Offer.

10.  On 11 May 2022, which was before the defendant prepared the witness statements and sought directions for adducing expert medical evidence, Mayer Brown wrote to Wong & Co, offering again to settle the matter on a drop-hand basis (the “2^nd Offer”).

11.  On 30 June 2022, the plaintiff rejected the 2^nd Offer.

12.  On 23 May 2023, the parties attempted mediation, which was unsuccessful.

13.  On 15 March 2024, the plaintiff made a sanctioned offer of HK$200,000 (inclusive of interest) to the defendant (the “Sanctioned Offer”).

14.  On 15 April 2024, the defendant rejected the Sanctioned Offer.

15.  On 11 July 2024, Mayer Brown wrote to Wong & Co, inviting the plaintiff to agree to an amount of quantum at HK$200,000 (inclusive of interest), leaving the issue of liability to be determined at trial (the “3^rd Offer”).

16.  The plaintiff did not respond to the 3^rd Offer.

17.  Although the 1^st, 2^nd and 3^rd Offers (the “Offers”) were not sanctioned offers, they can still be taken into account in considering the issue of costs pursuant to Order 62, rule 5(1)(d) of the Rules of the District Court (Cap 336H): see Choi Tak Man v Chan Yuk Lan, Didi & anor [2017] 5 HKLRD 619, at para 23.

18.  Had the plaintiff accepted the 1^st or 2^nd Offers, the trial would have been avoided.

19.  As it turns out, the plaintiff failed to do better than any of the Offers (or the Sanctioned Offer).

20.  Whilst the court may award costs against a party who fails to do better than an offer which he has rejected on a higher scale, the court has to take into account all the appropriate circumstances in exercising its discretion as to costs. The existence of a settlement offer is only one of the many factors that the court can take into account.

21.  In this case, not only do I accept that costs could have been avoided had the plaintiff accepted any of the Offers, in the Judgment, I also found that:

(a)  The plaintiff has been lying all along about his injuries sustained from the Accident[2] (para 20);

(b)  The plaintiff was dishonest when he stated in his witness statement that his left leg was painful and numb after the Accident (para 23);

(c)  The plaintiff’s claim failed on the issue of liability (para 60);

(d)  Even if I were wrong on the issue of liability, the plaintiff would have been entitled to an award of HK$41,152.55 only (para 149).

22.  In the circumstances, taking into account inter alia the Offers and the conduct of the parties, I agree with the defendant that the plaintiff was acting unreasonably in not accepting the Offers and that the costs of the action should be paid by the plaintiff to the defendant on an indemnity basis.

23.  Given that both sides were represented by counsel at trial, I agree that it is appropriate to allow the defendant a Certificate for Counsel.

24.  Accordingly, I make an order in terms of paragraph 1 of the Summons.

25.  As to the costs of the Application, given my findings above, I order that the costs of and occasioned by the Application be paid by the plaintiff to the defendant, to be taxed on an indemnity basis if not agreed.