NG LAI FAN, FANNY v. THE HONG KONG GOLF CLUB

HCPI 511/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 511 OF 2005

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D E C I S I O N

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1. On 2 August 2006 I handed down my decision on an interlocutory application taken out by the Plaintiff.  I made an order nisi in respect of costs that the costs of application (including costs reserved) be to the Plaintiff, if not agreed, to be assessed by me with certificate for counsel.

2. The Defendant applies for variation on two grounds:

3. I deal with the 2^nd ground first.  The rule is according to paragraph 2(3) of Part II of the First Schedule to Order 62 that “no costs shall be allowed in respect of counsel appearing before a master in chambers …… unless the master has certified the attendance as being proper in the circumstances of the case”.

4. The burden is on the Master to decide whether it is a proper case for the certificate.  The application seems to be a simple one: (a) specific discovery of “The Hong Kong Golf Club Fanling F & B Training Manual”, (b) inspection of the site and (c) provision of a sample linen bag for inspection.

5. This action is a personal injury case.  The Plaintiff was employed as a waitress.  She was asked to remove ten odd linen bags of soiled table-cloths from the kitchen to the laundry room downstairs.  As she was carrying one of the linen bags and descending the staircase, she fell down some 5 steps and was injured.

6. In preparation of the case, on the advice of counsel the Plaintiff sought for the three matters set out in paragraph 4 above.  The Defendant resisted the application from beginning to end.  With the parties’ consent I directed that the parties filed and served their written submission and that I decided the application on paper without a hearing.

7. Mr. Wallace Cheung of counsel made written submissions for the Plaintiff both in support of the application and in reply to the submission in opposition.  The submissions as can be seen are results of thorough researches.  They are helpful and to the point.

8. By contrast, the Defendant’s submission is based on facts, and hardly answers the legal points submitted.  I am most grateful to Mr. Wallace Cheung for his helpful submission.  For attainment of justice I consider that in the circumstances of this case it is proper to grant counsel certificate.

9. I now come to the 1^st ground raised by the Defendant that the Plaintiff in the summons did not apply for costs.  In the summons what the Plaintiff has written I quote: “Costs of this application be pended for”.  I did not understand its meaning.  At the call-over hearing, I asked Mr. Liu, solicitor for the Plaintiff, to explain and he said that he intended to mean: “costs in the cause of the action”.  Though there was no application for amendment, I took it to mean that.

10. Mr. Fung, solicitor for the Defendant, said that it was his understanding as well.  It was unfair for the Plaintiff to change his stance in the reply submission and claimed for costs.

11. When I considered the application, I noticed that in Section D of the Plaintiff’s Reply to the Defendant’s submission dated 25 July 2006 the Plaintiff did ask for costs.  He further supplemented it by making further submission dated 31 July 2006.  Two days later I handed down the decision.  Mr. Fung considered it unfair because he had no chance to reply.

12. Rightly pointed out by Mr. Cheung, awarding costs is a matter of discretion of the court vested upon it by Section 52A(1) of the High Court Ordinance (Cap. 4) which states as follows:

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(1)

Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the Court of First Instance, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.”

13. Costs itself is not a cause of action; it is a matter that has been left to the court to decide.  It does not matter whether a party has claimed for it in the relief.  As stated in that section the Court shall have full power to determine by whom and to what extent the costs are to be paid.  I am exercising that power.

14. I have to address Mr. Fung’s complaint of unfairness that the Defendant has been deprived of the chance of addressing the court before a decision is made.  The simple answer is that Order 42 rule 5B(6) deliberately requires the order to be made as an order nisi.  It gives the parties a chance to address the court.  I find the Defendant’s point is a non-starter.

15. At the hearing, Mr. Fung conceded that in normal circumstances, (had it not been for the argument on point of fairness) costs should follow the event.  He agreed that there was no particular feature that would cause me to depart from the normal rule.

16. For the above reasons, I refuse to make any variation and maintain my earlier decision as set out in paragraph 1 above.

17. There is one variation I wish to make because of my oversight: it is a legally aided case.  I add to my order one more clause:

“The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.”

18. As to the costs of the hearing of the Defendant’s application for variation of the costs order nisi made by me, I follow the general principle that costs be awarded to the successful party.  I order that costs be to the Plaintiff to be assessed if not agreed.  I also order that the additional clause mentioned in paragraph 17 also applies to the costs of the Defendant’s application for variation.