HO CHUNG-YEN AND ANOTHER v. CHANG DIN-HUNG AND ANOTHER

HEADNOTE

                On the 8th July 1983, the plaintiff issued a writ out of the High Court, claiming damages under the Law Amendment and Reform (Consolidation) Ordinance, (Cap.23) in respect of the death of the deceased, who died on the 1st March 1981. On the 28th March 1984, the action was transferred to the District Court. Subsequently, the claim was settled for $30,000.

                On an application for an order that the pre-transfer costs be taxed on the High Court Scale, the defendants contended that they should be taxed on the District Court Scale as the amount recovered was within the limit of the District Court's jurisdiction, which was increased to $40,000 on 1st September 1983 and to $60,000 on 1st January 1984.

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REASONS FOR DECISION

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1. On the 8th July 1983 the plaintiff commenced this action in the High Court, claiming damages in respect of the death of Madam WONG Yuet-wan ("the deceased"). On the 28th March 1984 the action was by consent transferred to the District Court. Later in 1984 the claim was settled when the plaintiff accepted the sum of $30,000 paid into court by the defendants. I am now invited by the plaintiff to make an order that the plaintiff's costs prior to the date of transfer be taxed on the High Court Scale, by virtue of the discretion conferred on me by section 43(1) of the District Court Ordinance (Cap. 336).

2. In support of the plaintiff's application, Mr. McCormick reminded me that at the date of the writ in this action the monetary limit of the District Court's jurisdiction was $20,000. This was increased to $40,000 on the 1st September 1983, by "the coming into operation" of section 2(1) of the Administration of Justice (Miscel-laneous Amendments) Ordinance 1981 ("Ordinance '79 of 1981"). It was again increased, on the 1st January 1984, to $60,000 as a result of a resolution of the Legislative Council. This speedier mode of amending local legislation was authorised by Ordinance 79 of 1981, which added what is now section 73A to Cap. 336. It is clear that the power to amend by resolution is, confined to amending the monetary limits in various sections of Cap.336 dealing with the jurisdiction of the District Court. Consequential amendments to other sections cannot be introduced by resolution. In particular, section 40 of Cap. 336 cannot be amended by resolution. Nor was it amended by Ord. No. 79 of 1981. Instead, section 12(1) of that Ordinance gave the High Court power to transfer to the District Court those cases which had been brought within the jurisdiction of the District Court when its jurisdiction was increased to $40,000.

3. Although Mr. McCormick contended that it was reasonable for this action to be commenced in the High Court, he appeared to adopt a pessimistic view of his prospects of succeeding in this application before me, because he contended that I was bound by a decision of the Court of Appeal and by two decisions of the High Court, to order that the pre-transfer costs should be taxed on the District Court Scale. Cf. Lee Wah Man Weaving Factory v. How Lap Co., Ltd. (Civ.App. 48/1984; 9 May 1984); LUI Po-keung v. TAM Kwok-hung (HCA 628/1984; 22 July 1985) and TING Cheng and CHAN Siu-king v. NG Chi-kin (HCA 1020/1982 and 4280/1983; 2 and 9 October 1985). Oddly enough, he felt unable to support the different conclusions expressed by Master Betts in CHAN Sheng-yuen v. WONG Hing-kuan (HCA 1105/1983) and WONG Bin v. WONG To (HCA 6792/1982). Mr. Lee submitted that the relevant point in time was when the matter was finally adjudicated upon. If at that time the amount recovered was within the jurisdiction of the District Court, costs should be taxed according to the District Court Scales.

4. With all respect to Mr. McCormick and Mr. Lee, the three decisions, which are clearly binding upon me, are distinguishable. They were all concerned with actions which were commenced in the High Court and were finally disposed of in the High Court. That situation is clearly governed by section 43(2) of the District Court Ordinance (Cap. 336). They were not concerned with actions transferred from the High Court to the District Court. Materially different provision for the costs of the whole proceedings of such transferred actions is made by section 43(1) of Cap. 336. Basically, this provides that, subject to any order made by the High Court, the costs of the whole proceedings shall be subject to the discretion of the District Court. That transferred discretion is expressed in wide and general terms and, in my view, is not really curtailed by the proviso, which reads:-

        "Provided that, where an action that is transferred from the High Court to the Court is an action founded on contract or tort, then, as regards so much of the pro-ceedings in the action as takes place in the High Court before the transfer, the Court may, if satisfied that there was sufficient reason for bringing the action in the High Court and subject to any order of the High Court, make an order allowing costs on the High Court Scale or on any scale of the Court."

5. It seems to me that the need for the District Court to be "satisfied that there was sufficient reason for bringing the action in the High Court" only applies to actions founded on contract and tort which were within the District Court's jurisdiction at the date when the proceedings were commenced. Assuming that the latter has to be determined by reference to the amount eventually recovered, in the present case the amount recovered was $30,000; well in excess of the District Court's jurisdiction on the 8th July 1983, when the writ was issued. Accordingly, I consider that I do not have to be "satisfied that there was sufficient reason" for bringing the present action in the High Court before exercising the discretion vested in me,  by section 43(1) of Cap. 336.

6. That discretion implicitly empowers me to order that the "several parts" of the proceedings prior to the transfer should be taxed on the High Court Scale. In the circumstances of the present case, I order that the entirety of the costs of the present action prior to the 23rd March 1984 be taxed on the High Court Scale. It is true that the present action could have been transferred to the District Court on or shortly after the 1st September 1983. But, I do not think that it would be just to direct that the costs incurred between that date and the actual date of transfer, i.e. 23rd March 1984 or, indeed, those incurred between the 1st January 1984 and the date of transfer, should be taxed on the District Court's scale. Apart from the fact that there does not appear to be any District Court scale of costs for claims brought within the jurisdiction of the Court by the 1981 Ordinance or the 1983 resolution, because the District Court Civil Procedure (Costs) Rules have not been amended to take into account these increases in jurisdiction, the defendants did not take any step, which would put a reasonable person in the position of the plaintiff on notice that a real issue as to costs might arise, until the 26th July 1984, when $30,000 was paid into Court. Instead, the defendants did not file their defence until the 15th November 1983. Although that included a more or less standard form of plea of contributory negligence, the defendants were apparently not confident that such plea might bring the claim within the recently increased jurisdiction of the District Court. At the hearing of the Summons for directions on the 10th January 1984, they consented to the action being tried in the Supreme Court. Presumably, they then thought that there was a real risk that the plaintiff might recover more than $60,000.

7. If I am wrong, and it is necessary to be satisfied that there was sufficient reason for bringing the present action in the High Court, the fact that the plaintiff eventually recovered $10,000 more than the limit of the District Court's jurisdiction, at the date of the writ, is, in my view, sufficient reason for commencing proceedings in the High Court. Commencement of the present proceedings could have been postponed until February 1984, by which time the jurisdiction of the District Court had been raised to $60,000. However, the situation has to be looked at in the light of the law and facts as they stood when the proceedings were brought; not at some other date when they might have been brought. In my view, any other interpretation would encourage undue delay in the institution or prosecution of claims.

8. For these reasons, I will make an order in the terms of paragraph 1 of the Summons dated the 27th November 1985. It was conceded that the costs of this application should be awarded to the defendants in any event.