KI TAK YAN v. THE INCORPORATED OWNERS OF KAM YUEN BUILDING, BOUNDARY STREET AND ANOTHER

HCPI 421/2015

[2021] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONL INJURIES ACTION NO 421 OF 2015

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DECISION ON COSTS

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1.  By Judgment (“Judgment”) handed down on 25 November 2020[1], I assessed the damages, before deduction of Employees’ Compensation, at HK$416,866. P has received Employees’ Compensation in the total amount of HK$1,165,740 (“EC”). The amount of the EC exceeds the assessed amount by HK$748,874.

2.  On the information then known to this Court, I made a costs order nisi at §132 of the Judgment (the “Costs Order Nisi”).

3.  By joint letter of 9 December 2020, Ds seek variation of the Costs Order Nisi.  Ds rely inter alia on the Sanctioned Payments that they have made.  They seek an order to the following effects:

 (a)  Ds do pay P’s costs of this action on liability up to the date of the Consent Order of 7 March 2019 (the “Consent Order” and the “Consent Order Date”, whereby Judgment on liabilities was entered in favour of P with damages to be assessed), to be taxed if not agreed on a party and party basis on the District Court scale;

 (b)  P do pay Ds’ costs of this action on quantum, including all costs reserved, and including the assessment of damages and this application for variation, to be taxed if not agreed, on an indemnity basis on the High Court scale;

 (c)  enhanced interest on the net costs payable from 10 October 2018; and

 (d)  P’s own costs to be taxed in accordance with the Legal Aid Regulations.

4.  I have since given directions on the filing of evidence and submissions in support and opposition.

5.  On 27 January 2021, Ds filed their submissions in support.

6.  After a number of extensions, P on 17 February 2021 filed his submissions in opposition.

7.  On 26 February 2021, Ds filed their submissions in reply.

The affirmations filed

8.  I have read the first affirmation of Mr Lam Yung Wah Teddy (“Mr Lam”, a partner of Messrs Boase Cohen & Collins, solicitors for D1) and the affirmation of Lo Wing Man (a director of D2) both filed on 9 December 2020.  Materially, they say:

 (a)  Ds on 12 September 2018 first made a joint sanctioned payment (the “1^st Sanctioned Payment”) in the sum of HK$400,000 on top of the EC received.  The deadline for P to accept the same without leave fell on 10 October 2018;

 (b)  On 4 January 2019, Ds made a further joint sanctioned payment in the sum of HK$400,000 (the “2^nd Sanctioned Payment”), bringing the total to HK$800,000 on top of the EC;

 (c)  The Sanctioned Payments were not accepted;

 (d)  On 15 January 2019, P made a sanctioned offer to accept HK$1,500,000 on top of the EC; and

 (e)  On 7 March 2019, the Consent Order was granted.

9.  On 13 January 2021, P filed his affirmation in opposition.  He points inter alia to what he describes as the seriousness of his injuries, his loss of earnings, the opinions of various medical experts and the conduct of the parties.  He says that he had reasonable and good reasons to support his decision not accepting the Sanctioned Payments.  He says that Ds on the other hand only chose to admit liabilities almost 4 years after the commencement of these proceedings, leading to waste of time and costs.  He seeks the following variations, that:

 (a)  Ds do pay P’s costs on liabilities, including all costs reserved, up to the Consent Order Date, to be taxed if not agreed, on a party and party basis on the High Court scale;

 (b)  Ds do pay P’s costs of this action on quantum, including all costs reserved, up to 9 October 2018 (ie the last date when the 1^st Sanctioned Payment could be accepted without leave), and thereafter the costs of Ds of this action on quantum, including all costs reserved, to be paid by P, to be taxed if not agreed, on a party and party basis on the High Court scale.

10.  On 20 January 2021, Mr Lam in reply filed his 2^nd affirmation. He provides certain details in relation to the EC that P has received.  In particular, it is revealed that by the time P commenced proceedings herein on 24 April 2015, he had already received the Sick Leave Payment in the sum of HK$731,803.67 (subsequently adjusted to HK$734,340).  The employees’ compensation proceedings instituted by P was subsequently settled in the EC amount (made up of a lump sum compensation of HK$430,000 together with the adjusted Sick Leave Payment and Reimbursement of paid medical expenses of HK$1,400).

Discussions

11.  I have considered parties’ submissions.

12.  The following matters are no longer in dispute:

 (a)  On liabilities:

Ds to pay P’s costs of the action on liability up to the Consent Order Date, to be taxed if not agreed, on a party and party basis;

 (b)  On quantum:

 (i)  P is to pay Ds’ costs of this action from 10 October 2018, including all costs reserved, and including the assessment of damages and the present application, to be taxed if not agreed, on the High Court scale;

 (ii)  P’s own costs are to be taxed in accordance with the Legal Aid Regulations.

13.  What remain in dispute are as follows:

 (a)  On liabilities:

Whether P’s costs (paragraph 12(a) above) shall be taxed on the District Court or High Court scale (“Issue #1”);

 (b)  On quantum:

 (i)  in respect of the costs from commencement up to 9 October 2018, whether they should be paid by P to Ds, and if so, whether the costs should be taxed on the indemnity basis (“Issue #2”);

 (ii)  in respect of the costs from 10 October 2018 which P shall bear, whether they should be taxed on the indemnity basis (as contended by Ds), or on party and party basis (as P contends) (“Issue #3”);

 (iii)  whether there shall be enhanced interest on the net costs payable by P to Ds (“Issue #4”).

Issue #1

14.  I have considered the various authorities cited to me.

15.  Mr Chung’s main submission in support of taxation on the High Court scale is that P’s decision to institute the proceedings and to continue them was not based on his subjective belief of the extent and seriousness of his injuries but principally on the opinions of the medical experts he had consulted.  He then goes into quite some details of the medical evidence.  I have considered those details in my Judgment.

16.  I have found that P is not a reliable witness.  I have expressed my view, with reasons set out at section H.1 of the Judgment, that various aspects of his evidence are exaggerative, inconsistent with undisputable evidence, internally inconsistent, inherently improbable, and evasive.

17.  In my view, he must know that he had exaggerated the seriousness of the Descent, the Impact Force, and the extent of his injuries.  That also impacts on his claim for Post‑trial loss of earnings — see section O of my Judgment.

18.  In my view, P knew, and at least ought to have known that his claim is at best a modest one, within the jurisdiction of the District Court.

19.  I accept Ms Loh’s and Mr Yeung’s submissions that P’s costs on liability shall be taxed on the District Court scale.

Issue #2

20.  I accept the submissions of Ms Loh and Mr Yeung that the action was a negative claim from the start.  Ds should on quantum be regarded as the winning parties.

21.  On the basis for taxation, I have considered the authorities cited to me, and in particular Lai Sin Yan Elsie v Tata Communications (Hong Kong) Limited [2020] 4 HKLRD 363.

22.  I repeat my findings on P’s unreliability and exaggeration.

23.  I repeat my observations and findings that multiple and material facets of P’s claim are inconsistent with the Footage.  I point in particular to his description of the Descent as a free‑fall, and his allegation of head injuries. 

24.  In my view, the way P prosecuted his claim constitutes an affront to the Court.  Such conduct should be deterred.

25.  I order that the costs on quantum from commencement up to 9 October 2018 should be paid by P, and should be taxed on the indemnity basis.

26.  I accept Ms Loh’s submission that Ds had no alternative but to incur High Court costs in defending these proceedings.  I order that Ds’ costs against P should be taxed on the High Court scale.

Issue #3

27.  P did not accept the 1^st Sanctioned Payment.

28.  Order 22 rule 23(5) is triggered.

29.  I have considered those factors set out at Order 22 rule 23(6).

30.  P have had ample time to consider the 1^st Sanctioned Payment.  I have observed above that he must know that he had exaggerated the seriousness of the Descent, the Impact Force, and the extent of his injuries.  He nonetheless chose not to accept the 1^st Sanctioned Payment.

31.  In the circumstances of the case, I see no unfairness in ordering indemnity costs on quantum from 10 October 2018.

32.  Similarly, those costs are to be taxed on the High Court scale.

Issue #4

33.  I repeat that P did not accept the 1^st Sanctioned Payment, and that Order 22 rule 23(5) is triggered.

34.  On the percentage to be enhanced by, I have been cited a number of authorities, which included Angbuhhang Netra Jang v Laing O’Rourke Construction Hong Kong Limited & Ors [2021] HKCFI 232 and my decision in Wong Giles v Donowho Simon Christopher & Anor [2020] HKCFI 1053.  On the strength of those cases, Ms Loh submits that the interest rate should be enhanced by 10% above the judgment rate.

35.  Wong Giles is in my view a particularly bad case.  The plaintiff installed the 14 speakers, he admitted in the course of cross‑examination, to retaliate and punish.  The noise nuisances went on for several years.  Yet, in prosecuting his claim, he portrayed himself as a victim of the defendants’ violence and abuses. 

36.  Whilst this Court disapproves of P’s conduct in exaggerating multiple facets of his case, I am of the view that enhancing the interest rate to 6% above the judgment rate is proportionate and is sufficient on the facts of this case to show this Court’s disapproval.

Disposition

37.  For the reasons set out above, I vary the Costs Order Nisi to as follows:

 (a)  Ds do pay P’s costs of this action on liabilities, including all costs reserved, up to the date of the Consent Order of 7 March 2019, to be taxed if not agreed on a party and party basis on the District Court scale;

 (b)  P do pay Ds’ costs of this action on quantum, including all costs reserved, and including the assessment of damages and this application for variation, to be taxed if not agreed, on an indemnity basis on the High Court scale;

 (c)  There shall be interest on the net costs payable by P to Ds at the enhanced rate of 6% above the judgment rate as from 10 October 2018 until payment; and

 (d)  P’s own costs to be taxed in accordance with the Legal Aid Regulations.