XCHRX STEWART WILLIAM GEORGE ELLIOTT AND ANOTHER v. SLIPFORM ENGINEERING LTD. AND ANOTHER

HCA9960/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9960 OF 2000

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RULING ON COSTS

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1. I gave judgment on 17 January 2002 in this matter being an appeal by the plaintiffs from the order of Master Jones given on 13 June 2001 striking out the plaintiffs' Statement of Claim. In that judgment I had allowed the appeal by the plaintiffs, set aside the order of the Master and dismissed the defendants' application to strike out the plaintiffs' claim.

2. I now deal with the question of costs having received the parties' written submissions on costs.

3. The hearing of the appeal took up 26 and 29 November 2001. On 29 November 2001, during his submission in reply, counsel for the plaintiff indicated his desire to make amendments to cure defects affecting paragraphs 9(a), 10(a) and 10(b) of the Statement of Claim. I allowed him time to formulate the proposed amendments. After receiving his draft proposed amendments, I requested the parties to attend before me once more on 10 January 2002 in order to clarify certain inconsistencies between the proposed amendments and paragraph 7(b)(iii) of the Statement of Claim.

4. I then gave my written judgment on 17 January 2002 in which I invited written submissions from counsel in respect of the costs orders to be made as well as setting a time-table for the lodging of such written submissions.

5. There was a further short hearing on 28 January 2002 resulting from the plaintiffs' time summons to extend the time for lodging their written submission on costs. For that application and hearing on 28 January 2002, I had ordered those costs to be included as costs of the appeals after hearing submissions from the parties.

6. I have now received the submissions on costs from both parties, and having read those submissions I make the following order as to costs :

(a) The costs of and occasioned by the amendments to the Statement of Claim be to the defendants in any event;

(b) The defendants do pay to the plaintiffs 80% of the costs of the appeal in any event save that the costs of the hearing on 10 January 2002 which shall be paid by the plaintiffs to the defendant in any event;

(c) In so far as the costs of the application and the hearing before the Master is concerned, half of such costs be to the plaintiff in any event with certificate for counsel.

7. The reason for making the above order for costs is that I am of the view that this appeal was necessary for the plaintiff to put right what had been ordered by the Master. I accept the plaintiffs' submission that some time was spent on the appeal in relation to the First Agreement. However the plaintiff would not have been successful on the First Agreement without the amendments which only came at the last possible moment of the appeal. Even if there had been no amendments by the plaintiff, I would only have struck out paragraphs 9(a), 10(a) and 10(b) of the Statement of Claim. The rest of the plaintiffs' claim would have continued which is its main claim under the Second Agreement.

8. In the circumstances, I take the view that the plaintiff should only be entitled to 80% of the costs of the appeal.

9. Had that same result been achieved before the Master, half costs to the plaintiffs would have been a fair order for costs in the light of what was asked for by the defendants in their summons but in which they would have failed in the main.