MOHAMMED SHABIR v. MARBOLOY ENGINEERING LTD AND OTHERS

HCPI 777/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.777 OF 2004

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J U D G M E N T

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1. This is an appeal by the plaintiff from the decision of the Master given on 27 January 2006 in which the Master dismissed the plaintiff’s application for specific discovery.  In so dismissing the plaintiff’s application, the Master also made a cost order against the plaintiff.

2. The specific discovery application by the plaintiff was an application against the 1^st and 3^rd defendants.

3. It is not now necessary to go into the details of the substantive application for specific discovery, since the parties, at the start of the hearing of this appeal before me, had come to terms as to the substantive order for discovery that I should make.

4. The only matter in dispute between them being as to costs, both as to the costs below as ordered by the Master and the cost of the appeal hearing before me.

5. Before going to the question of costs, the substantive orders which the plaintiff now seeks, and which is not opposed by the defendants are as follows :

6. The order of the Master dismissing the plaintiff’s application for specific discovery be set aside and replaced by the following orders, namely :

(a) The 1^st and 3^rd defendants do within seven days from this order make, file and serve an Affidavit stating whether they have or had at any time in their possession, custody or power, and if the same or any of them had at any time been but not now in their possession, custody or power, stating when they parted with and what has become of the following documents :

(i) Wage Records for gross and nett earnings of the plaintiff for the 12 months prior to 4 December 2003;

(ii) IRD Returns in respect of the plaintiff’s earnings for the two years prior to the accident;

(iii) MPF returns in respect of the plaintiff’s earnings for the two years prior to the accident; and

(iv) Records in respect of two comparators (plasterers) for the six months prior to 1 June 2004, including MPF and IRD Returns (but with the names of the comparators blanked out).

(b)     The 1^st and 3^rd defendants do within seven days after filing of the Affidavit aforesaid, make available for the plaintiff’s inspection such documents aforesaid as are in the possession custody or power of the 1^st and 3^rd defendants.

7. In view of the fact that there is no dispute by the 1^st and 3^rd defendants to the above Order being made, that Order will be made which disposes of the substantive appeal.

Costs

8. I turn now to deal with the real issue in dispute between the parties at the hearing, namely, the issue of costs.

9. In so far as costs is concerned, the plaintiff asks that the costs order made by the Master below be set aside and a further order that the costs below and of this appeal be the plaintiff’s costs in the cause.

10. The 1^st and 3^rd defendants on the other hand submit that the costs order made by the Master below should stand and not be disturbed. Furthermore they say that they should have the costs of this appeal.

11. In this respect, the 1^st and 3^rd defendants rely (inter alia) on certain without prejudice correspondences between the respective solicitors for the parties relating to this appeal which Mr Law, acting for the 1^st and 3^rd defendants refer to as “Calderbank offers”.

12. Those correspondences took place between 9 and 22 February.  From those correspondences the following can be elicited :

(a) The plaintiff’s solicitors accepted that (after the Notice of Appeal had been filed) their request for specific discovery was too wide.

(b) Both parties had (before the hearing of this appeal) agreed to the more limited substantive orders made above.

(c) However, they were all along not in any agreement as to the costs orders that should be made for the disposal of this appeal; the plaintiff suggesting that the costs of the appeal and the costs before the master should be costs in the cause, whereas the defendants saying that there should be no order as to costs for the appeal and that the costs order of the Master should stand.

13. Because of their inability to agree on the costs, nothing came of those correspondences and the matter still had to be argued before me, albeit only as to costs.

14. In those circumstances, and also because there was no disagreement between them as to the substantive orders to be made at the hearing before me, I do not see how those correspondences can be referred to as “Calderbank offers” strictly speaking.  They only serve to highlight the fact that the parties were disagreed as to costs at all times, albeit having agreed the substantive orders for the appeal.

15. I shall have to decide costs by exercising my discretion while looking at all the circumstances of this case.

16. In deciding the question of costs, I take into account in particular the following matters :

(a)      that the request for specific discovery as it was framed before the Master and also in the Notice of Appeal was much wider than the substantive orders now agreed between the parties; and

(b)     this appeal from the Master was necessary, at least to the extent of the limited orders now made, since the Master had dismissed the plaintiff’s application for discovery outright.

17. In all the circumstances of this case, I am of the view that the plaintiff ought to be entitled to the costs both before the Master and of this appeal since the appeal (and therefore also the application below) was necessary for the plaintiff to achieve what it has, albeit by those limited orders now made.

18. However, having said that, because the original requests for discovery, both in the original application and also in the Notice of Appeal, was far wider than what the plaintiff ultimately achieved, the plaintiff ought not be entitled his full costs here and below, but only half costs, both here and below.

19. The costs order will therefore be as follows :

(a)      the plaintiff will have half costs of this appeal against the 1^st and 3^rd defendants in any event; and

(b)     the costs order made by the Master below be set aside, and the plaintiff will have half his costs of the application and hearing before the Master (from which this appeal stems) against the 1^st and 3^rd defendants in any event.