LIMBU NETRA KUMAR v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER

HCPI 234/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.234 OF 2002

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REASONS  FOR  DECISION

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1. On 30 June 2006, I granted the plaintiff's application to refix the trial dates with costs to the defendants.  I further listed the case for hearing on 18 July 2006 for the plaintiff's former solicitor, Mr Kenneth W.Leung (“Mr Leung”), to appear to show cause why he should not be ordered to personally bear the costs of and occasioned by the plaintiff's application.

2. At the conclusion of the hearing on 18 July 2006, I ordered that Mr Leung should personally bear the costs of and occasioned by the plaintiff's application to refix the trial dates, including the plaintiff's costs of the hearing on 18 July 2006.

3. My reasons appear below.

The history of the action

4. On 25 March 2002, the plaintiff commenced this action against the defendants claiming for damages for personal injuries he sustained as a result of an industrial accident at a construction site on 20 April 1999.

5. On 5 November 2003, the case was set down for trial in the Running List.  On 22 March 2004, upon the joint application of the plaintiff and the defendants, the case was removed from the Running List to enable further interlocutory steps be taken.

6. On 29 November 2005, Suffiad J ordered that the case be restored to the Running List but not to be warned before 15 December 2005.  By summons filed on 9 January 2006, the plaintiff applied to remove the case from the Warned List because of the need to carry out further interlocutory steps.  On 8 February 2006, Suffiad J granted the application.

7. The case came before Suffiad J for a pre-trial review on 15 March 2006.  At the hearing, Suffiad J ordered that the case be transferred to the Fixture List and granted leave to both parties to call their respective neurological experts and orthopaedic experts at trial.  It appears that the defendants did not agree to the reports of the plaintiff's medical experts and indicated their intention to cross-examine them.  Dr Brian Choa (“Dr Choa”) is the plaintiff's neurological expert. 

8. On the same day after the hearing, representatives from the parties' solicitors attended before the listing officer and the trial was fixed for 14, 17 to 20 July 2006.

9. On 27 June 2006, the plaintiff applied by summons to refix the trial dates on the ground that Dr Choa could not attend the trial as he would be overseas from 10 to 28 July 2006.

10. The plaintiff's summons was heard on 30 June 2006.  It was opposed by the defendants.  In the end, the application was granted with costs to the defendants in any event, to be taxed if not agreed.  The plaintiff's costs were reserved.

The case against the solicitors

11. The plaintiff was privately represented when he commenced this action.  As from 28 April 2003, he is legally aided.  As of today, four different solicitors had been assigned by the Director of Legal Aid to act for him.

12. On 13 February 2006, Mr Leung was assigned to act for the plaintiff.  He was the third solicitor assigned by the Director of Legal Aid.  He remained as the plaintiff's solicitor until 16 June 2006 when Mr Henry H.C. Wong (“Mr Wong”) was assigned to replace him.

13. At the pre-trial hearing on 15 March 2006, Mr Leung did not attend.  Miss But, a solicitor in his firm, attended the hearing instead.  Miss But has since left Mr Leung's firm.

14. In the affirmation in support of the plaintiff's 27 June 2006 application to refix the trial dates, it was stated that :

“5. On 22^nd June 2006, Dr. Brian Choa (‘Dr. Choa'), specialist in Neurology, one of the expert witnesses on the Plaintiff's side informed our Henry Wong that he would not be able to attend the trial of this case fixed on 14^th July 2006 as he would be out of Hong Kong from 10^th July 2006 until about 28^th July 2006.

6. Dr. Choa stated to our Henry Wong in the same telephone conversation that he was surprised to being informed some time in the week beginning 12^th June 2006 that the trial of this action had been fixed to commence on 14^th July 2006, right in the middle of his leave from Hong Kong.  Dr. Choa emphasized that before the fixing of the trial date, he had advised the Plaintiff's then solicitors of his diary and his plan to leave Hong Kong in July 2006.  According to information from Dr. Choa, notwithstanding his prior notice being given, the Plaintiff's then solicitors nevertheless fixed the trial date of this case to commence on 14^th July 2006.

7. Dr. Choa further informed us that in response to the situation, he had already instructed his own solicitors to best assured he could take his leave in July 2006 as planned and as he had informed the Plaintiff's previous solicitors.”

15. By a letter to Messrs Henry H.C. Wong & Co. dated 29 June 2006, Dr Choa confirmed the correctness of these paragraphs.

16. At the time Messrs Henry H.C. Wong & Co. prepared the application to refix the trial dates, the papers for the case had not been passed from Mr Leung's firm to Mr Wong and his firm.

17. It now appears that Dr Choa was mistaken when he told Mr Wong he had before the fixing of the trial date, advised Mr Leung or his firm of his diary and his plan to leave Hong Kong in July 2006.

18. The position, and Mr Leung accepts, is that Dr Choa's diary and his availability was not consulted before the trial dates were fixed on 15 March 2006.  After the trial dates were fixed, Mr Leung's firm wrote to Dr Choa on 31 March 2006 (“31-3-2006 Letter”) in these terms :

“We act for the Plaintiff in the above matter and you had on 1^st March 2002 prepared a medical report on Mr. Limbu Netra Kuma.

We write to advise that the trial of the above matter is fixed on 14^th July 2006 with 5 days reserved.  Please mark your diary accordingly for the purpose of trial.”

19. Then on 12 June 2006, Mr Leung's firm wrote to Dr Choa again as follows :

“We refer to the above proceedings and our letter to you dated 31^st March 2006.

Please be informed that pre-trial settlement will unlikely be reached for the captioned matter.  In the circumstances, please reserve the dates of 14^th July 2006 to 20^th July 2006 for attending Court and give oral evidence at trial.

Should you have any query to the aforesaid, please do not hesitate to contact our Mr. Kenneth Leung or Mr. Dennis Leung.”

20. On 15 June 2006, there was a telephone conversation between Mr Dennis Leung, an assistant solicitor of Mr Leung's firm, and Dr Choa.  In consequence, Dr Choa instructed his own solicitors, Messrs Leung Chan & Pang (“LCP”), who wrote a letter dated 19 June 2006 to Mr Leung's firm (“LCP's Letter”). 

21. LCP's Letter is a long letter that raised a number of points, which are summarised below :

(1) Dr Choa was required to be in England from 11 to 28 July 2006 because of prior professional commitments and family reason.  He was to attend a professional conference as the elected delegate of the Asia Pacific Region and also to attend to his honorary fellowship at Royal College of Physicians.  His father was contemplating surgical operation in England.

(2) Dr Choa had fixed his schedule in February 2006.  However, his diary and availability was not consulted before the trial dates were fixed.

(3) Upon receipt of the 31-3-2006 Letter, Dr Choa's nurse, Ms Lee, had telephoned Miss But and informed her of Dr Choa's unavailability at the trial.  Miss But agreed to make alternative arrangement.  There was no further contact with Dr Choa until the letter dated 12 June 2006.

(4) Mr Dennis Leung had during the telephone conversation with Dr Choa indicated that witness subpoena would be issued to compel Dr Choa's attendance at the trial.  LCP had instructions from Dr Choa to apply to set aside any subpoena served on him.

(5)     If Dr Choa is compelled to call off or reschedule his travel plan, he would suffer damages to his professional reputation, apart from the emotional stress of being unable to be with his elderly father during the surgery as well as suffering economic loss as the air tickets had been issued.

22. Mr Leung's firm replied to LCP on the same day.  The second paragraph of it states :

“As discussed during the telephone conversations, it is never the intention of our firm and/or of our Mr. Dennis Leung to cause any distress to Dr. Choa or to cause difficulties on Dr. Choa's trip to England.  We believe the current situation was caused by certain misunderstandings during the telephone conversations between our Miss But (who had already left our firm) and the nurse of Dr. Choa's clinic previously.  In any event, we have no knowledge whatsoever regarding why Dr. Choa must go on the trip as planned until the telephone conversations between your Miss Chan and our Mr. Dennis Leung last Friday.”  (emphasis supplied)

23. The letter went on to state that the defendants' solicitors had been contacted with a view to securing their agreement to have Dr Choa's report adduced without his attendance and that the defendants' solicitors indicated they might be prepared to accommodate Dr Choa by adjourning the trial in whole or in part.

The solicitor's case

24. Mr Leung had put in written submission and also made oral submissions on the matter.  In brief, Mr Leung said that he had not acted improperly or without reasonable cause or misconducted himself in the proceedings.  He pointed out that paragraphs 5 to 7 of the affirmation leading the plaintiff's application to refix the trial did not set out the full accurate factual background.

25. In his submission, there was no strong prima facie case made out against him that would require him to show cause.  He further argued that it was not necessary to refix the trial.  Finally, it is said that the court's discretion should be exercised against a wasted costs order.

26. More specifically, Mr Leung made the following points in support of his case :

(1) The trial dates were fixed right after the pre-trial review hearing.  There was no opportunity to consult or check Dr Choa's diary.

(2) His firm had taken steps to inform Dr Choa of the trial dates within reasonable time from 15 March 2006.  A reminder was further sent on 12 June 2006.

(3) The telephone conversation said to be between Dr Choa's nurse and Miss But after the 31-3-2006 Letter was sent and received is disputed.  Miss But had told Mr Leung's staff she had no recollection of having a telephone conversation with Dr Choa's nurse as mentioned in LCP's Letter.  Mr Leung could not find in the file any record of such telephone conversation.

(4) If there is any doubt about this conversation, it should be resolved in Mr Leung's favour.  It is not possible for the court to decide what is the correct position.

(5) Neither he nor his firm was aware that Dr Choa was unavailable until the telephone conversation between Dr Choa and Mr Dennis Leung on 15 June 2006.

(6) As a writ of subpoena could be issued to compel the attendance of Dr Choa, it was not necessary to vacate the trial dates.  Thus, it cannot be said that he is responsible for the refixing of the trial dates.  There is also no evidence that the costs incurred were directly due to his conduct. 

(7) Since the plaintiff's application was issued more than half a month before the scheduled trial date, it is doubtful whether any substantial costs would be wasted. 

The court's jurisdiction

27. The court's jurisdiction to make wasted costs order against solicitors is prescribed by Order 62 rule 8(1) of Rules of the High Court.  It reads :

“Subject to the following provisions of this rule, where in any proceedings costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, the Court may make against any solicitor whom it considers to be responsible whether personally or through a servant or agent an order —

(a) disallowing the costs as between the solicitor and his client; and

(b) directing the solicitor to repay to his client costs which the client has been ordered to pay to other parties to the proceedings; or

(c) directing the solicitor personally to indemnify such other parties against costs payable by them.”

28. In Ma So So Josephine v. Chin Yuk Lun Francis (2004) 7 HKCFAR 300 at 309 para.6, the Chief Justice set out the proper approach to the exercise of the jurisdiction as follows :

“In considering the exercise of the jurisdiction under this rule, the court should approach the matter by dealing with the following questions:

(1) Whether the solicitor was responsible for (i) acting improperly or without reasonable cause or (ii) for undue delay or any other misconduct or default in any proceedings.

(2) Whether such conduct of the solicitor caused costs to be incurred or wasted.  This is a question of causation.  The causal link between the solicitor's conduct and the extent of costs incurred or wasted must be established.

(3) Whether the court should exercise its discretion to make an order.”

29. The Chief Justice stressed that the jurisdiction is summary as well as discretionary.  The court has a discretion whether to proceed to call on the solicitor to show cause as required by Order 62 rule 8(2).  Even where after hearing the solicitor, the court is satisfied that the solicitor had committed conduct of the kind prescribed in the rule and that such conduct had caused costs to be incurred or wasted, the court is not bound to make an order : at 311, paras.13-15.

The disputed telephone conversation

30. Before analysing the conduct involved, it is convenient to deal with the disputed telephone conversation between Dr Choa's nurse and Miss But.

31. At the hearing to show cause, Mr Wong who acts for the plaintiff produced to the court a page taken from Dr Choa's appointment book.  It is a page for the period of 13 to 16 July 2006.  At the header of the page, these words were written :

“Limbu, attend court, informed Ms But out of town 2522 2163 (31/3/06)”

32. Mr Wong was informed by Ms Chan of LCP that these words were written by Dr Choa's nurse, Ms Lee.  “Limbu” is a reference to the plaintiff and “2522 2163” is the telephone number of Mr Leung's firm.  Additionally, Mr Wong also placed before the court the original of the 31-3-2006 Letter that was received by Dr Choa.  Ms Lee had marked on the letter the words “Ms But”.

33. Neither Miss But nor Ms Lee had made any representation to the court or attended the hearing.  Miss But is said to have left Mr Leung's firm whereas Ms Lee is said to be out of Hong Kong.  Mr Leung said all the things said to have been done by Ms Lee is hearsay and inadmissible.  The same is equally true of what Miss But is reported to have said to Mr Leung's staff.

34. As the Court of Final Appeal had emphasised in Ma So So Josephine's case, the wasted costs order jurisdiction is summary.  The court should be astute to prevent the hearing from turning into new and costly form of satellite jurisdiction.

35. In the present case, it suffices to note that there is a factual dispute as to whether after receipt of the 31-3-2006 Letter, Dr Choa had through his nurse informed Mr Leung's firm of his travel plan and unavailability at the scheduled trial.  I do not intend and I do not consider it necessary to resolve this factual dispute.  My reasons below will show that it is not determinative of the issue whether an order should be made against Mr Leung.

A prima facie case to show cause?

36. I return to deal with the main issue of whether Mr Leung should be visited with a wasted costs order.

37. Mr Leung did not accept that there is a prima facie case such that he should be called on to show cause.  Accordingly, the first issue is whether the circumstances surrounding the plaintiff's application to refix constitute a prima facie case of costs being wasted by undue delay or by any other misconduct or default in the proceedings.

38. In Yau Chiu Wah v. Gold Chief Investment Ltd & Anor [2003] 3 HKLRD 553 at 565 para.36, Ma JA (as he then was) pointed out that the exercise of the court's jurisdiction under Order 62 rule 8 does not depend on dishonesty, personal obliquity or behaviour such as would warrant disciplinary action being taken.  While mere mistake or error of judgment may not necessarily be enough, misconduct, default or even negligence will be if this is serious or worse still, gross.

39. On the facts of this case, there is no doubt that Dr Choa's medical evidence is a crucial part of the plaintiff's case.  Without his presence, his medical report cannot be admitted into evidence.  Dr Choa's availability at the trial is therefore of critical importance to the plaintiff.

40. In the circumstances, it is the duty of the plaintiff's solicitor to take all reasonable steps to secure Dr Choa's presence at the trial.  As part of that duty, reasonable steps should be taken to ensure that the trial dates fixed would not clash with Dr Choa's other commitments.  One of the obvious reasonable steps that should be taken is to check and ascertain Dr Choa's diary and availability before proceeding to fix trial dates.  Mr Leung did not in his written and oral submissions seek to argue otherwise.

41. Mr Leung accepts that his firm did not check Dr Choa's diary or availability before fixing the trial dates.  Clearly, had this been done, the plaintiff's subsequent application to refix the trial would not have come about.

42. The direct consequence of the failure to check Dr Choa's diary or availability is that the trial dates fixed clashed with Dr Choa's prior commitments and travel plan.  It was for this reason that the plaintiff applied to refix the trial.

43. Further, the application to refix is plainly an avoidable step in the proceedings.  The costs incurred for the application are therefore wasted costs.

44. In fixing the trial dates without first ascertaining the availability of Dr Choa, Mr Leung had failed in his duty towards the plaintiff to take reasonable steps to secure the attendance of Dr Choa at the trial.  The failure could have brought about grave consequences.  Quite apart from the distinct possibility of having to vacate and refix the trial dates, there is also no assurance that the application to refix will be granted.  There are also costs implications and undue delay to the proceedings.

45. Thus analysized, there is a strong prima facie case of gross dereliction of duty on the part of Mr Leung such that he should be called upon to show cause.

Had the solicitor shown cause?

46. Mr Leung explained the failure to check Dr Choa's diary on the basis that because the attendance before the listing officer took place right after the pre-trial review hearing, there was no opportunity to check Dr Choa's diary.  He said the urgency of the situation had prevented his firm from checking Dr Choa's diary.

47. I am unable to accept this explanation.  Firstly, the materials before the court do not reveal any urgency.  Secondly, it would only take a telephone call to find out Dr Choa's availability.  It cannot be the case that between leaving Suffiad J's court and attending before the listing officer, there was no time or no opportunity at all to make a telephone call to Dr Choa's clinic.  Thirdly, the pre-trial review took place at 9:30 a.m. on 15 March 2006.  If time was needed to consult Dr Choa's diary, the parties' representatives could have returned later in the day to fix the dates, assuming that they must fix the dates on 15 March 2006.

48. Mr Leung argued his firm had taken step to inform Dr Choa of the trial dates fixed within a reasonable time.  For my part, I would have expected the notification to be sent much sooner than the two weeks that Mr Leung's firm had taken.  It was quite possible for Dr Choa to have accepted other engagements in the intervening period between 15 and 31 March 2006.  Be that as it is, the 31-3-2006 Letter did not alter the fact that the trial was fixed for a period that clashed with Dr Choa's prior commitments and travel plan.  Neither the 31-3-2006 Letter nor the latter letter of 12 June 2006 help to exonerate Mr Leung from his default.

49. As to the disputed telephone conversation, whether it had or had not taken place is likewise not determinative of Mr Leung's liability for a wasted costs order.  Whether Mr Leung and his firm knew shortly after 31 March 2006 of the unavailability of Dr Choa is only relevant to whether Mr Leung should have taken steps to deal with the problem of Dr Choa's difficulties in attending the trial.  If he had known, through Miss But, of Dr Choa's unavailability, he should have forthwith taken steps to reschedule the trial dates.  The failure to take timely action will of course add to the gravity of the default and may increase the wasted costs.  However, even if Mr Leung did not know of Dr Choa's unavailability until mid-June 2006, it does not mean that Mr Leung is not guilty of any default.

50. As analysed above, the primary cause of the problem is the failure to check Dr Choa's diary before fixing the trial.

51. Further on Mr Leung's case, Dr Choa had not responded to the 31-3-2006 Letter.  Yet, no one from Mr Leung's firm had contacted Dr Choa to follow up and to check whether Dr Choa could attend the trial.  Mr Leung said this was not necessary to do so because if Dr Choa did not get back after the letter was sent, it could be assumed that there was no problem.

52. I am unable to agree to this.  As said before, given the importance of Dr Choa to the plaintiff's case, it is duty of the plaintiff's solicitor to take all reasonable steps to secure the attendance of Dr Choa.  Since the trial dates were fixed without first checking Dr Choa's diary, there is no assurance that the dates fixed would not clash with Dr Chao's other commitments.  Prudence therefore requires the solicitor to take step to positively confirm with Dr Choa that he would be present at the trial.  Afterall, the fact that there was no response to the 31-3-2006 Letter could be due to a variety of reasons.  It is not necessarily indicative of Dr Choa finding the trial dates in order and that he would attend the trial accordingly.

53. In my view, with or without the telephone conversation between Dr Choa's nurse and Miss But, Mr Leung had not acted with due prudence and had not taken all reasonable steps to ensure that the plaintiff's material expert witness would attend trial to give evidence for the plaintiff.

54. I turn next to deal with the question of causation.  A central theme in Mr Leung's submissions is that it was not necessary to refix the trial despite Dr Choa's prior professional commitments and travel plan.  He argued that Dr Choa was under a duty to act in the plaintiff's best interest and that the trial should take precedence over his other commitments.  He further argued that it was open to the plaintiff to issue a subpoena to compel Dr Choa's attendance at the trial.

55. I accept that Dr Choa, being the plaintiff's doctor, has professional duties towards the plaintiff.  This includes a duty to attend court to testify on the plaintiff's conditions and the results of his examination on the plaintiff.  However, it does not mean that he is required to act in complete disregard of his professional, family and personal commitments.  Considering the purposes of the overseas trip and given that the travel plan was fixed as long ago as February 2006, Dr Choa's reluctance to cancel or reschedule his trip to England is understandable.  To suggest that he should forego his professional commitments to accommodate the plaintiff's trial, which was fixed without reference to his diary, is not only unreasonable but also unduly harsh.

56. As to the issue of witness subpoena against Dr Choa, it is plain from LCP's Letter that Dr Choa would apply to set aside any subpoena issued against him.  In light of the fact that the clash between the trial dates and his travel plan was due to no fault on his part, it is highly probable that the court would accommodate him and set aside the subpoena or excuse his absence.  Hence, the plaintiff's application to refix the trial cannot be said to be unnecessary or inapt.

57. In this connection, it is interesting to note that as early as 18 and 24 May 2006, Mr Leung's firm had applied for and issued three witness subpoenas to the three plaintiff's witnesses of facts.  It did not however see fit to also issue a witness subpoena to secure Dr Choa's attendance at the trial.

58. In my view, the application to refix the trial was the only realistic and viable option open to the plaintiff.  More costs would be incurred if the matter was left to be dealt with at the trial.  To commence the trial as scheduled and to adjourn the case part-heard until after Dr Choa's overseas trip is an unrealistic option.  Given the state of the court's diary, the case may have to be adjourned for some months before the hearing could resume.  There would also be additional costs in reading the notes of the proceedings and a second preparation for the case.  Above all, it is generally undesirable to adjourn a case in the middle of a party's case and to wait for some weeks or months before continuing with the rest of the evidence.

59. In short, I do not accept Mr Leung's submission that there was no need to vacate the trial dates.  On the contrary, there is a clear casual link between the failure to check Dr Choa's availability and the refixing of the trial, and in turn, the costs incurred and wasted by the application to refix the trial.

The court's discretion

60. I turn finally to the exercise of the court's discretion to make a wasted costs order against Mr Leung.

61. In his submissions on behalf of the plaintiff, Mr Wong made two points which are relevant to the exercise of discretion.  Firstly, it was pointed out that the plaintiff had always wished to keep the trial dates.  Had there been a real option, he would not have applied to refix the trial.  Secondly, the plaintiff had not anticipated that he would have to incur costs for refixing the trial.

62. Mr Leung had submitted that there would not be any substantial costs wasted by the refixing of the trial.  This may well be the case.  However, this is not a relevant consideration in deciding how the discretion should be exercised.

63. There is nothing on the facts and circumstances of this case that justify exercising the discretion against making a wasted costs order against Mr Leung.  On the contrary, there are strong factors in favour of such an order.  Firstly, the plaintiff is legally aided.  His means are limited.  Secondly, the proceedings have been unnecessarily delayed as a result of refixing the trial.  Thirdly, the duty required of Mr Leung is simple, straightforward and readily appreciable.  In fact, it is not suggested that Mr Leung was not aware of the importance and the duty to check the expert witness' availability before fixing the trial.

64. In all the circumstances of the case, the court's discretion should be exercised in favour of an order under Order 62 rule 8(1).

Conclusion

65. For the above reasons, Mr Leung is ordered to personally bear the costs of and occasioned by the plaintiff's application to refix, including the plaintiff's costs of the hearing on 18 July 2006.  For avoidance of doubt, I also make an order that the plaintiff's own costs for the application and the hearing to show cause be taxed under the Legal Aid Regulation.