WONG MEI NA v. GENRYOKU SUSHI CO LTD

DCEC 892/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 892 OF 2000

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REASONS FOR RULING

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1. This hearing concerned the costs of the Summons dated 10th October 2002 ("the Summons").

2. The Respondent seeks to vary my order that the Applicant should have the costs of the Summons. This is my reason for granting the Respondent's application to vary.

3. The Summons was taken out by the Applicant for leave to accept the payment into court made by the Respondent. The Respondent had made three payments into court, the last being on 10th September 2002. The only reason why the leave for payment out had not proceeded by way of a consent summons was because the parties could not agree on who should bear the costs after the 10th September 2002.

4. On 14th November 2002 I heard substantive arguments on the Summons. The arguments were confined to the issue of costs as disputed, the parties having agreed that the payment out would be made to the Applicant.

5. Having heard submissions I ruled that the Respondent should pay the Applicant's costs in these proceedings, including the costs of the Summons, up to the 10th September 2002. Under my ruling the Applicant would bear the costs after 10th September 2002. In light of my ruling the Applicant was also ordered to pay the costs for the hearing on 14th November 2002. The Respondent was ordered to pay the costs for the adjourned hearing of the Summons on 16th October 2002 given my finding that the submissions on 14th November 2002 could have been heard on 16th October 2002 had it not been for the stance adopted by the Respondent then.

6. In this application Ms. Kwan for the Respondent relies on the Respondent's letter date 8th October 2002 marked "without prejudice save as to costs" ("Calderbank letter"). The Calderbank letter was written in response to the Applicant's letter dated the same accepting the payment into court made. In the Calderbank letter the Respondent demanded that the Applicant should be responsible for the post-10th September 2002 costs if she was to accept the payment into court.

7. Ms. Kwan argues that, had the Applicant agreed to the proposal as to costs, the payment out could easily have been dealt with by way of a Consent Summons. It would not have been necessary to issue the Summons and the hearing on 14th November 2002 could have been avoided.

8. Ms. Kwan's concern is that by ordering the Respondent to pay for the costs of the Summons, the Respondent would not be paying for just the Summons itself, which costs is minimal, but also the time spent for preparing the arguments on 14th November 2002. Since the Respondent has achieved what it had offered in the Calderbank letter Ms. Kwan says the Applicant should be responsible for the costs of the Summons.

9. Mr. Kwan for the Applicant says the Calderbank letter went further than the issue of costs because the Respondent also insisted in the letter that the payment out be made on condition that there was no admission of liability on its part. Therefore, Mr. Kwan says, the Applicant was rightly entitled to reject the proposals in the Calderbank letter.

10. Notwithstanding Mr. Kwan's present stance, it was clear during the substantive hearing on 14th November 2002 that the reason as to why the payment out could not be dealt with by way of a Consent Summons was due to the Applicant's refusal to bear the costs after 10th September 2002.

11. In any event a payment out is a settlement on terms without the admission of liability, Ng Ming Chor v Pui Hing Construction Company Limited & Others DCCJ 496 of 1996 and Chan Lai Heung v Po Leung Kuk DCEC 172 of 2001 referred. The Respondent's demand for the non-admission of liability should not affect the question of costs at issue.

12. In the circumstances the costs order is varied to the extent that the Respondent is to have the costs of the Summons.

13. There being no application for costs, I make an order that there is no order as to costs of this hearing. The Applicant's own costs to be taxed in accordance with Legal Aid Regulations.