TO CHI CHEONG v. LAM KA YEUNG

HCPI 372/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 372 OF 2010

_________________________

_________________________

___________

R U L I N G

___________

Introduction

1.  This matter arose out of an application for interim payment made by the Plaintiff under Order 29 Rule 10 & 11 of the Rules of the High Court before the Personal Injury Judge, namely, the Honourable Mr Justice Bharwaney (“the PI Judge”) on 10 October 2012 whereby, it was ordered by the PI Judge that:

1)   “The application for interim payment be adjourned to a date to be fixed before PI Master with 1 hour reserved;

2)   Leave to the Defendant to file affidavit evidence, if any, within 14 days from the date of this order;

3)   Leave to the Plaintiff to file affidavit evidence in reply, if any, within 14 days thereafter;

4)   Without prejudice to any order that may be made by the PI Master for further interim payment, the Defendant do make an interim payment of HK$600,000 to the Plaintiff within 14 days from the date of this order; and

5)   Costs reserved to the PI Master.”

2.  The Plaintiff never pursued further with the interim payment application by filing further affidavit evidence or by fixing a date of hearing for the summons before the PI Master after receiving the sum of HK$600,000 from the Defendant on 3 December 2012.  Instead, the Plaintiff is now applying for the costs of the application for the interim payment, including the costs of the hearing before the PI Judge and the hearing before me.

Background

3.  This personal injury action arose out of the alleged wrongful administration of an intra-muscular injection on the Plaintiff by the Defendant who was a medical practitioner.  The incident happened at the Defendant’s clinic in Tuen Mun on 8 November 2007.  Due to the alleged erroneous administration of the injection on the Plaintiff’s right buttock while he was in a sitting position, the Plaintiff suffered right sciatic injury with right sciatic nerve palsy which radiated to his right lower limb.

4.  Despite there was very clear expert evidence on both sides stating that the injury was most likely caused by the Defendant by having erroneously administered the needle obliquely towards the posterior direction, liability was not admitted by the Defendant until just a few days prior to the hearing for the trial on liability, which was fixed before the PI Judge on 10 October 2012.

5.  It was only on 5 October 2012 that the Consent Summons was signed by the Parties whereby interlocutory judgment was entered in favour of the Plaintiff against the Defendant with damages and interest to be assessed and costs of the action (on the issue of liability) up to the date of the Consent Summons to the Plaintiff.

6.  Immediately after the interlocutory judgment was signed on 5 October 2012, the Plaintiff’s solicitors faxed a letter to the Defendant’s solicitors on the same date at 3:27 pm asking for HK$1,000,000 by way of interim payment pursuant to Part II of Order 29 of the RHC.  The Plaintiff further asked the Defendant’s solicitors to confirm their client’s instructions to pay such an amount by 12:00 noon on 8 October 2012.  Incidentally, 5 October 2012 was a Friday and 8 October 2012 was a Monday.

7.  To put the figure of HK$1,000,000 interim payment request in context, the Plaintiff’s updated claim under the Revised Statement of Damages which was filed on 8 March 2012, excluding the claim for interest, was just below HK$2.7 million.

8.  Not having received any response from the Defendant on the self-imposed deadline at 12:00 noon on 8 October 2012, the Plaintiff then filed a summons in the afternoon of 8 October 2012, to be returnable before the PI Judge on 10 October 2012.  That hearing, as mentioned, was originally fixed to determine the issue on liability.

9.  On Tuesday, 9 October 2012, the Defendant did make an offer to the Plaintiff by way of interim payment in the sum of HK$600,000.  The letter which contained the offer was faxed to the Plaintiff on 9 October 2012 at 9:38 am.

10.  Despite of that offer, the Plaintiff went on to file the 2^nd Affirmation of To Chi Cheong in support of the Summons on 9 October 2012.  The 2^nd Affirmation which was 4 page long document was served on the Defendant on the same day at 3:37 pm.

11.  At the hearing on 10 October 2012, the Defendant maintained his offer of interim payment at HK$600,000.  The PI Judge made the observation that the sum offered by the Defendant was “exactly the figure” he had in mind.  Nevertheless, the Plaintiff insisted to adjourn the summons for argument while taking the HK$600,000 on offer at the same time.

12.  What happened in the meantime was that the parties never filed any affidavit evidence pursuant to the Order of the PI Judge and, despite some suggestions on the part of the Plaintiff to request an increase of the interim payment to a sum of HK$800,000, that had never materialized.

13.  The interim payment at HK$600,000 was eventually paid by the Defendant to the Plaintiff by way of a Court Order made by the PI Master on 3 December 2012.

Analysis

14.  In my view, while it is perfectly understandable why the Plaintiff would like to make a request for interim payment after interlocutory judgment was entered against the Defendant,  having waited for almost 5 years to get his interlocutory judgment after the occurrence of the medical incident, the way the Plaintiff went about it was rather unconventional.

15.  First, instead of taking out a summons the usual way and fix a time for directions on the usual filing of affidavit evidence and giving the opportunity for the Defendant to respond by filing evidence by affidavit, the Plaintiff chose to take out a summons a few hours after an unilaterally imposed deadline on the Defendant.  In my view, the deadline imposed by the Plaintiff was rather unreasonable.  As said, it was first faxed to the Defendant’s solicitors on the Friday afternoon on 5 October 2012 requesting an answer by noon on the following Monday.  If one does not include the interim Saturday morning, where a lot of solicitor firms do not work anymore or only keep a skeleton staff in the office, it only gave 5 ½  hours for the Defendant to make a decision on whether to pay what I would regard as not insubstantial amount of interim payment.  Even including the interim Saturday morning, the Plaintiff gave the Defendant something in the region of 9 ½ working hours to consider his interim payment request.  To me, that was clearly insufficient time, whether for the Defendant solicitors to take instructions from the Defendant himself or from the Defendant’s insurers.

16.  Second, in my view, what took place after the unilateral imposed deadline was rather unnecessary aggressive on the part of the Plaintiff. Instead of sending the Defendant a reminder or giving a courtesy call to the Defendant’s solicitors to find out their client’s position, within a few hours after the Defendant making them an offer at HK$600,000 on Tuesday 9 October 2012, the Plaintiff sent them a four page affirmation prepared by the Plaintiff’s solicitor.  This affirmation clearly was prepared beforehand with the scenario in mind that the Defendant was not going to respond to the Plaintiff’s deadline in time.  It is not surprising perhaps for the Defendant to feel that they were being “ambushed”.

17.  However, that was not the end of the very aggressive stance taken by the Plaintiff.  After receiving the very clear indication from the PI Judge at the hearing on 10 October 2012 that HK$600,000 was exactly the figure he had in mind for interim payment in this case, the Plaintiff did not take the hint and stopped there.  Instead, the Plaintiff insisted to have the matter adjourned to a date to be fixed for argument before the PI Master, hoping that the Plaintiff would able to obtain a higher sum than the figure agreed by the Defendant the date before the hearing, namely, on 9 October 2012.

18.  As events turned out, the Plaintiff did not get what he wanted.  Despite some negotiations between the parties and talks about increasing the interim payments to a sum of HK$800,000, no such offer was ever made by the Defendant. At the end of the day, the Plaintiff only obtained HK$600,000 by way of interim payment, which was the exact amount agreed by the Defendant on 9 October 2012. No affidavit was ever filed by the Defendant or the Plaintiff per the directions given by the PI Judge on 10 October 2012.  No hearing was ever fixed before the PI Master for the substantive hearing on the arguments for an increased payment on the part of the Plaintiff.   Instead, the Plaintiff restored the hearing purely for the purpose of arguing on the issue of costs.  To me, that is not a reasonable and amicable way of conducting litigation, particularly under the Civil Justice Reform regime.  While it might be reasonable for the Plaintiff to expect that he would be entitled to have his costs of the summons up to the time when the Defendant had agreed to pay him the agreed sum, he would be taking a risk on costs if at the end of the day he could not better what he had been offered by the Defendant prior to the hearing before the PI Judge.

19.  Third, in my judgment, had the Plaintiff been able to get more than what he had set out to achieve after the Defendant agreed to pay him HK$600,000 by way of interim payment on 9 October 2012, then the costs issue may be determined quite differently.  In this case, despite a lot of emotive language and accusations thrown by the parties at each other in correspondence after the hearing on 10 October 2012, the fact remained that the Plaintiff had never been able to get more than what he was able to get by way of interim payment of HK$600,000 before the PI Judge.  In fact, the figure was at exactly the same amount as that offered by the Defendant the day before the hearing.  In my view, what the Plaintiff should have done was to accept that amount with costs instead of allowing this matter to drag on.  The Plaintiff could have acted in a more reasonable manner but he did not.

20.  Lastly, in my view, what the Plaintiff should have done was to follow the normal procedures under Order 29 rule 10(4) to give the Defendant sufficient time to properly consider the basis of the application as well as the amount of interim payment requested for.  Instead of forcing the Defendant to make a decision within a few working hours, he should have given the Defendant and his lawyers at least 10 clear days to consider the matter.  If he chose not to follow the usual procedures in such applications, then he will have to accept the risk of not able to recover part or all of his costs.

Conclusion

21.  In the aforesaid circumstances, I consider that a reasonable costs order would be for the Defendant to bear the costs of the Plaintiff up to the date when the offer of HK$600,000 was accepted by the Plaintiff, namely, up to and including the hearing before the PI Judge on 10 October 2012.  Thereafter, as the Plaintiff had never been able to achieve more than what he was offered by the Defendant and later accepted at that hearing, the costs should be awarded in favour of the Defendant, including the hearing before me on the argument on the issue of costs.  Such costs should be awarded on a party and party basis to be taxed if not agreed with Certificate for Counsel.

22.  Lastly, I would like to thank Counsel for their assistance.