ELIJAH SAATORI v. RAFFLES MEDICAL GROUP (HONG KONG) LTD

HCMP3224/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3224 OF 2016

(ON AN INTENDED APPEAL FROM HCPI NO. 1114 OF 2006)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

Introduction

1.  There are before the court four summonses issued by the plaintiff. Chronologically, they are:

(1)   Summons filed on 21 November 2016 applying for leave to appeal against the order of Chow J (“the Judge”) made on 7 November 2016 (“Leave to Appeal application”).

(2)   Summons filed on 22 December 2016 applying for leave to adduce further evidence in these proceedings (“Leave to Adduce Evidence Application”)

(3)   Summons filed on 17 February 2017 applying to: (i) strike out the defendant’s affirmations in opposition to the Leave to Appeal Application and Leave to Adduce Evidence Application (“Striking Out Application”); and (ii) adjourn the proceedings herein for at least 40 days or such other period as the court may deem fit (“Adjournment Application”).

(4)   Summons filed on 10 March 2017 applying for: (i) discovery and production of documents and electronic records against the defendant’s solicitors and other third parties; (ii) appointment of forensic IT expert; and (iii) leave to commence proceedings to commit various third parties for contempt of court (collectively “10 March 2017 Application”).  

2.  Registrar of Civil Appeals has given directions on the conduct of the first three summonses, but not in respect of the 10 March 2017 Application. His only direction to the parties is that the application is to be considered by the Court of Appeal together with the three summonses.  Despite that, on 22 August 2017 the plaintiff went ahead to lodge three document bundles and one authority bundle, and further filed an affirmation purporting to support an application for leave to commence committal proceedings and his application for discovery.  We feel bound to point out that such conduct is a clear disregard of the court’s direction and is wholly unacceptable. 

3.  The plaintiff has requested that the applications be heard at an oral hearing. However, having considered the papers and submissions of the parties, we are of the view that it is not necessary to hold an oral hearing and that it is appropriate to determine the various applications on paper pursuant to Order 59 rules 2A(5) and 14A(1) of The Rules of the High Court (“RHC”), Cap. 4A. We set out below our determination on the applications.

HCPI 1114/2006

4.  The background leading to these proceedings can be briefly stated.  On 9 May 2006, the plaintiff commenced HCPI 1114/2006 (“the Action”) against the defendant, claiming damages for medical negligence in connection with a wax removal treatment to his right ear that took place at the defendant’s clinic on 5 August 2003. It is the plaintiff’s case that the treatment had caused him acute, chronic tinnitus resulting in serious physical and psychological injuries and disabilities.

5.  On 7 October 2015, the Action was set down for trial. On 19 November 2015, the court gave notice that the trial was scheduled to commence on 2 September 2016 before the Judge with 10 days reserved. 

6.  The plaintiff acted in person in the Action until 28 January 2011 when a legal aid certificate was issued to him.  Solicitors (Burke & Company) and counsel (Mr Hingorani) were assigned to act for him.  Shortly before the trial was due to commence, Mr Hingorani informed the court by letter dated 5 August 2016 that he had withdrawn as counsel for the plaintiff in the Action.

7.  On 10 August 2016, the Director of Legal Aid assigned Mr Clough as counsel for the plaintiff in the Action.  In his written submission dated 25 August 2016 on the plaintiff’s application to adduce new expert evidence, Mr Clough indicated that matters had arisen which necessitated him to withdraw from the case, but he would attend the hearing scheduled on 26 August 2016 to inform the court of any update on the matter of representation that pertained to the further conduct of the case.

8.  By a Notice of Revocation dated 29 August 2016, the Director of Legal Aid revoked the plaintiff’s legal aid certificate. It appears from the Director of Legal Aid’s letters dated 30 August 2016 and 31 August 2016 to Burke & Company and the court respectively that the revocation was on the ground that the plaintiff had willfully failed to disclose facts pertaining to his financial resources in that he had substantial means which had not been disclosed.

9.  The plaintiff appealed against the Director of Legal Aid’s revocation decision.  Meanwhile on 30 August 2016, he applied to the Judge to adjourn the trial for four to five months so that new counsel could be instructed either by the Director of Legal Aid, in the event his appeal was successful, or by him privately, if his appeal failed. The Judge refused the adjournment and directed that the trial shall proceed as scheduled.

10.  On 2 September 2016, the first day of the trial, the plaintiff was absent. A medical certificate and a referral letter issued by Dr Wong Ming Shun of Evangel Hospital were faxed to the court. In gist, they stated that the plaintiff suffered from dizziness, had a blackout at home that morning and could not attend court, and that he needed to see psychiatrist, neurologist and ENT specialist.  The Judge adjourned the trial to 5 September 2016, and directed the plaintiff to be made available for examination by a neurologist to be appointed by the defendant as to his fitness to attend trial.

11.  Dr Brian Choa, a neurologist appointed by the defendant, examined the plaintiff on 3 September 2016. In his report, he expressed the opinion, inter alia, that the plaintiff should be fit to attend court by 7 September 2016.

12.  At the adjourned hearing on 5 September 2016, the plaintiff was again absent.  He caused to be provided to the court two medical certificates issued by Dr Cheng Tat Sun, a neurologist with Baptist Hospital, which stated that he was in hospital, with complaints of dizziness and syncope, and that he was “recommended for resting and not working in 2 weeks”.  Having considered the plaintiff’s documents, Dr Choa’s report and the submissions on behalf of the defendant, the Judge adjourned the trial to 7 September 2016.

13.  On 7 September 2016, the plaintiff was again absent. He caused to be provided to the Judge three medical certificates, two from Dr Cheng and one from Dr Chan Chung Mau, a psychiatrist, to support his application for adjournment of the trial.  Dr Cheng stated in his medical certificates that the plaintiff was in the hospital for management of his medical illness and that he was medically unfit to attend trial and represent himself until 16 September 2016.  In Dr Chan’s certificate, it was said that the plaintiff was hospitalized for dizziness and tinnitus and that he was receiving psychiatric treatment and medication for adjustment disorder.

14.  The defendant opposed the plaintiff’s adjournment application.  In the end, the Judge ordered the trial to be adjourned to new dates to be fixed, but on terms (“the Adjournment Condition”), namely,

(1)    The plaintiff paid to the defendant within 21 days the sum of $438,491.60, being taxed costs that the plaintiff had previously been ordered to pay to the defendant in the Action and in CACV 109/2008; and

(2)    The plaintiff paid into court within 21 days the sum of $1.2 million as security for: (i) costs which the plaintiff had previously been ordered to pay to the defendant in the Action and in CACV 184/2009 but not yet taxed; and (ii) the defendant’s costs thrown away by the adjournment of the trial.

15.  The Judge further ordered that unless the plaintiff complied with the Adjournment Condition, the Action shall stand dismissed without further order, with costs to the defendant.

16.  On 20 September 2016, the plaintiff filed a summons dated 14 September 2016 seeking: (i) to stay or set aside the order made on 5 September 2016 directing the trial to commence on 7 September 2016; (ii) a recusal of the Judge from the trial of the Action; and (iii) to stay or set aside the Adjournment Condition. By his Decision handed down on 29 September 2016, the Judge dismissed the summons with costs to the defendant, but granted an extension of time up to 7 November 2016 for the plaintiff to comply with the Adjournment Condition.

17.  In respect of the application to stay or set aside the order adjourning the trial to 7 September 2016, the Judge noted that, despite the opinion expressed by Dr Choa in his report on the plaintiff’s fitness to attend trial, he had adjourned the trial from 5 September to 7 September 2016 and afterwards generally to new dates to be fixed. The plaintiff’s attack on Dr Choa’s report and his application to set aside the order adjourning the trial to 7 September 2016 are therefore unnecessary.

18.  On the recusal application, the Judge considered he would not be affected by the plaintiff’s disclosure of the defendant’s sanctioned payment of $1 million. He was also of the view that the defendant’s substantial settlement offer would not prejudice the plaintiff’s case such that he should recuse himself in the absence of a complaint from the defendant. The Judge further did not accept that the fact he had ruled or decided against the plaintiff in various interlocutory applications constituted apparent bias and that he should recuse himself on that basis.

19.  As to the application to stay or set aside the Adjournment Condition, the Judge rejected it for a number of reasons:

(1)   The order was not an order for security for costs under Order 23 RHC, but was imposed under Order 35 rule 3 RHC which empowers the court to impose terms on adjourning a trial. The conditions were to address part of the prejudice or injustice suffered by the defendant as a result of the adjournment of the trial. 

(2)   Although the plaintiff was covered by legal aid between 28 January 2011 and 29 August 2016, the $438,491.60 outstanding taxed costs that the plaintiff was required to pay under the first condition was in respect of costs orders made before the grant of legal aid, hence the defendant would have no recourse to the Director of Legal Aid. In respect of the $1.2 million that the plaintiff was ordered to pay into court under the second condition as security for untaxed costs and costs thrown away by the adjournment, two of the six related costs orders were also made before the plaintiff was granted legal aid while the order for costs thrown away was made after the legal aid certificate was revoked. These sums, which the defendant would not have recourse to the Director of Legal Aid, would have exceeded $1.2 million. The Judge rejected the plaintiff’s argument that these costs were inflated.

(3)   The decision of Barma J (as Barma JA then was) in HCSD 31/2009 (17 June 2010) did not bar the defendant from seeking to recover the outstanding costs before the conclusion of the trial of the Action. The Judge held that the issues before Barma J were different in that when setting aside the statutory demand, he was dealing with the question of whether the plaintiff might have a valid cross-claim that exceeded the debts on which the statutory demand was based whereas when the Judge ordered the Adjournment Condition, he was considering whether to adjourn the trial and, if so, whether on terms and what terms.

(4)   The plaintiff’s offer to use his shares in his company ZION as security was not acceptable, given that there was no evidence of the current value of the shares and the company is a private company.

(5)   Without hearing the evidence in the case, it was not possible for the Court to reach a clear view on the merits of the plaintiff’s claim against the defendant.

(6)   On the plaintiff’s argument that the Adjournment Condition would stifle his claim, no affidavit on the plaintiff’s means was before the court. There was, however, information that the plaintiff or his company had received two sums totaling over $2 million. The amount to be paid by the plaintiff under the Adjournment Condition was just a fraction of what the plaintiff confidently told the Judge he could raise in two months (i.e. $3.5 to 5 million).

20.  The plaintiff applied to the Judge by letter dated 2 October 2016 for leave to appeal against the order of 29 September 2016.  The Judge dismissed the application for leave to appeal with costs to the defendant. In his decision handed down on 7 November 2016, the Judge reiterated that the plaintiff’s complaint about Dr Choa’s report was misplaced, irrelevant and overtaken by event in that the trial has since been adjourned to new dates to be fixed.  The Judge also took the view that the argument of res judicator on the basis of Barma J’s decision in HCSD 31/2009 was untenable. Further, applying the test for determining apparent bias in Falcon Private Bank Ltd v. Barry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281, the Judge rejected the argument that he was biased against the plaintiff on account of what he said in a hearing (which had not been identified), and allegations that he was related to a person called Anthony Chow, that he sought assistance from the defendant’s counsel on legal issues, and that he lacked experience in personal injuries cases.  In short, the Judge was of the view that the plaintiff’s intended appeal had no reasonable prospect of success.

21.  On 21 November 2016, the plaintiff commenced these proceedings to renew his leave to appeal application. This was followed by the series of summonses referred to in [1] above. I will deal with these applications in turn.

Adjournment application

22.  The plaintiff asks that these proceedings, except the Leave to Adduce Evidence Application, be adjourned pending his appeal against the Director of Legal Aid’s decision to revoke his legal aid certificate and also the outcome of police investigation in respect of a report he made against the defendant’s solicitors and a number of individuals.

23.  The complaints and report he made against the defendant’s solicitors and the others have no relevance to the subject matter and issues before this Court.  Likewise, the dispute over the correctness or otherwise of the Director of Legal Aid’s decision to revoke the plaintiff’s legal aid certificate has no demonstrable relevance to the Leave to Appeal Application and the other applications. In any way, the plaintiff has indicated that his appeal had been heard and allowed. We refuse the plaintiff’s application to adjourn these proceedings, and will proceed to consider his other applications.

Leave to Adduce Evidence Application

24.  The plaintiff applies for leave to adduce new evidence for the various applications he issued in these proceedings. The new evidence broadly falls into two categories: (i) Materials which the plaintiff says support his complaints against Dr Choa and the defendant’s solicitors; and (ii) Materials which the plaintiff claims prove that the Judge was biased and had no experience in personal injuries cases.

25.  To succeed in the application, the plaintiff is required to satisfy all the three conditions set out in Ladd v. Marshall [1954] 1 WLR 1489 at 1491, namely, (i) the new evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the new evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (iii) the new evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

26.  The bulk of the new evidence appears to be materials downloaded from the Internet, the source and reliability of which is not established. More importantly, the plaintiff commenced these proceedings to renew his leave to appeal application as leave had been refused by the Judge. The primary focus of these proceedings should be on the Judge’s decision to adjourn the trial of the Action on terms and the Adjournment Condition he imposed. The new evidence has no relevance to the issues in the intended appeal.  Nor does it have any bearing on the Judge’s decisions or the intended appeal.   

27.  The plaintiff fails to meet the legal requirements for adducing new evidence for the purpose of these proceedings or in the intended appeal. We dismiss the Leave to Adduce Evidence Application.

Striking Out Application

28.  The plaintiff asks the court to strike out the affirmations filed by the defendant in opposition to the Leave to Appeal and Leave to Adduce Evidence Application on the ground that they were not properly served on him and/or not served in time. 

29.  According to the affirmations of service filed by the defendant, the process server served the affirmations by placing the documents in the letter box at the plaintiff’s address of service.  The plaintiff, however, complains that the documents were only left on top of the letter box, and not inserted into the letter box; as such they could be taken by passers-by and did not comply with Order 65 RHC. In respect of the 2nd Affirmation of Frank Szeto, the plaintiff further complained that it was filed late on 6 February 2017, although an unsigned copy was exhibited to an affirmation filed and served on 3 February 2017 (last day for the defendant to file and serve evidence in opposition).

30.  In our view, the plaintiff’s complaint about the manner in which the affirmations were served, even if made out (which we need not decide) would not have provided grounds for striking out the affirmations. This is because it is not in dispute that the affirmations had reached the plaintiff and the contents were brought to his attention.     

31.  Likewise, in the circumstances of this case, the fact that the duly affirmed and signed 2nd Affirmation of Frank Szeto was filed and served three days after the last day is not sufficient to engage the court’s discretion to disallow the affirmation. In the first place, the delay has caused no prejudice to the plaintiff.  Secondly, even putting aside the affirmations filed by the defendant, for reasons that we give in this judgment, the plaintiff’s Leave to Appeal Application and Leave to Adduce Evidence Application cannot succeed.

32.  We, however, do not consider the explanation given by the defendant’s solicitors for the delay, namely, the affirmant could not affirm and sign the affirmation in time due to the intervening Chinese New Year holiday, very satisfactory. What the defendant’s solicitors had done is not the best practice, and it should only be resorted to in exceptional and really urgent circumstances.

33.  We would also point out that the plaintiff and the defendant’s solicitors had engaged the Registrar of Civil Appeals in several rounds of correspondence in relation to service of documents and other matters. This is both unnecessary and undesirable, and should not happen again. We draw parties’ attention to the judgment of Lam VP in AXA China Region Insurance Co Ltd v. Leong Fong Cheng [2016] 6 HKC 220 at [48] to [55] and remind all litigants and legal practitioners to exercise discipline and restraint when communicating with the court.

34.  As there is no sufficient basis for striking out the affirmations filed by the defendant, we dismiss the Striking Out Application. 

10 March 2017 Application

35.  By his summons filed on 10 March 2017, the plaintiff seeks extensive production of documents and electronic records from the defendant’s solicitors, Dr Choa and his solicitors, and also PCCW Netvigator. He also asks for an order appointing a forensic IT expert to examine the records stored in these parties’ email servers and computer hard-disks. He further applies to subpoena Dr Choa to testify before the court. Furthermore, he applies for leave to commence committal proceedings against the above individuals for perjury, forgery and conspiracy to defraud.

36.  As noted above, the present proceedings before the Court of Appeal began as a leave to appeal application, the focus of which should be on the Judge’s decision to adjourn the trial of the Action on terms and the Adjournment Condition he imposed. The plaintiff is obviously unhappy with the Dr Choa’s expert opinion as to his fitness to attend trial. Dr Choa’s report was before the Judge on 5 September 2016. Despite the opinion expressed in the report, the Judge adjourned the trial to 7 September 2016, and afterwards generally to new dates to be fixed. Dr Choa’s opinion therefore has no relevance whatsoever to the issues in the present proceedings. The various complaints of the plaintiff that underline the discovery and other applications in the 10 March 2017 summons are similarly irrelevant. These collateral applications are classic examples of satellite litigation and a misuse of these proceedings.  The summons must be dismissed in its entirety.

Leave to Appeal Application

37.  By his summons filed on 21 November 2016, the plaintiff applies for leave to appeal against the Judge’s order dated 7 November 2016 refusing him leave to appeal against the decision of 29 September 2016. Effectively, this is a renewed application for leave to appeal against the 29 September 2016 order.

38.  By the 29 September 2016 decision, the Judge: (i) Refused to stay or set aside his order of 5 September 2016 adjourning the trial to 7 September 2016; (ii) Refused to recuse himself; (iii) Refused to stay or set aside his order of 7 September 2016 imposing the Adjournment Condition as condition for adjourning the trial to new dates to be fixed on terms; and (iv) Extended the time for complying with the Adjournment Condition. 

39.  Section 14AA(4) of the High Court Ordinance, Cap. 4, provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. The applicant has to show an arguable case with reasonable chances of success on appeal, that is an appeal with prospects that are more than fanciful, but which do not need to be probable: SMSE v. KL [2009] 4 HKLRD 125 at [17].

40.  The Judge’s decision to adjourn the trial on terms is in its nature a case management decision within the Judge’s discretion. This Court has repeatedly pointed out that case management decisions are within the province of first instance judge and the appellate court should not interfere or substitute its own view as to what is reasonable for that of the judge unless it is satisfied that the judge’s decision was plainly wrong. It is only in wholly exceptional circumstances that the Court of Appeal will review a case management decision.  A party who seeks to challenge a case management decision such as the one made by the Judge faces a very high hurdle; he must show that the judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational: Wong Kar Kee Mimi v. Severn Villa Ltd [2012] 1 HKLRD 887 at [31]; see also Cheung Yee Mong v. So Kwok Yan [1996] 2 HKLR 48 at 51 and Lee Tak Yee v. Chen Park Kuen [2001] 1 HKLRD 401.

41.  In disregard of the directions given by the Registrar of Civil Appeals, the plaintiff has lodged multiple sets of lengthy and voluminous submissions and affirmations to support his application, raising a wide range of matters. In essence, his intended grounds of appeal can be summarized as follows:

(1)   The Judge erred in accepting Dr Choa’s report and in finding that the plaintiff was fit to attend trial.

(2)   The Judge erred in law in ordering him to provide security for costs. Security for costs should not be ordered against a legally aided plaintiff in a personal injuries action. The effect of the Judge’s order would be to stifle the plaintiff’s claim.

(3)   The legal aid certificate has been restored on appeal to retrospectively cover the plaintiff’s costs position from the date of revocation up to and including the trial of the Action. The defendant’s costs would be paid for by legal aid funds. The Adjournment Condition should not have been imposed and should therefore be set aside.

(4)   The doctrine of res judicata applies and the Judge is precluded by the judgment of Barma J in HCSD 31/2009 from ordering the plaintiff to provide security for costs as a condition to adjourning the trial.

(5)   The Judge was biased and lacks experience in personal injuries cases. He erred in refusing to recuse himself from the case.  

Dr Choa’s report and adjournment of the trial

42.  Much has been said by the plaintiff on his illness and fitness to attend trial. He has also produced the various medical certificates referred to above (see [10], [12] and [13] above).  As we point out repeatedly in this judgment, all these arguments on Dr Choa’s report, the plaintiff’s fitness to attend trial and the adjournment of the trial are misplaced. The adjournment of the trial to 7 September 2016 has been overtaken by event in that the trial has since been adjourned to new dates to be fixed.  The plaintiff’s request for adjournment of the trial has effectively been acceded to. The wide ranging accusations and personal attacks that the plaintiff makes against Dr Choa and others are completely unnecessary and unfounded on the papers before us.  There are no merits in this aspect of the plaintiff’s appeal.

43.  For the sake of completeness, we would point out the Court of First Instance case of Fairwing Investment Limited v. China and Canton (Properties) Company Limited & Anor (unreported) HCA 2137/ 2004, 16 June 2009, on which the plaintiff relies, is a decision on its own facts. The correct approach to an application for adjournment of trial on account of illness of a party or a necessary and important witness is that set out in this Court’s judgment in Lam Yin Pok Bosco, a minor by Lam Po Yee, his mother and next friend v. Dr Chan Yee Shing also known as Dr Chan Yee Shing Alvin (unreported) HCMP 2256/2012, 2 November 2012.  Accordingly, the Judge is correct to refer to Lam Yin Pok Bosco and to follow the principles set out in it.

The Adjournment Condition

44.  When ordering the trial to be adjourned to new dates to be fixed, the Judge decided that the adjournment should be on terms.  Under Order 35 rule 3 RHC, a judge “may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit.” Clearly, the Judge has power under Order 35 rule 3 to adjourn the trial on terms. Contrary to what the plaintiff thinks, the Judge was not making order for security for costs pursuant to Order 23 rule 1 RHC, and this point has been made very clear in the Judge’s 29 September 2016 Decision.

45.  Under Order 35 rule 3, a judge has wide discretion to decide whether to adjourn on terms and on what terms. The court invariably orders costs thrown away by the adjournment of the trial to be paid by the party who brings about the adjournment. In appropriate cases, the court may also order the party responsible for the adjournment to pay to the other party or to bring into court the amount of costs owing from him to the other party. It is therefore within the Judge’s discretion to order the plaintiff to pay to the defendant outstanding taxed costs and to pay into court amount approximating the amount of costs previously ordered against him and the costs thrown away by the adjournment. 

46.  We do not accept the plaintiff’s argument that plaintiffs in personal injuries actions or legally aided plaintiffs can never be ordered to pay outstanding costs or make payment into court as security for costs. Plaintiffs in personal injuries action and legally aided plaintiffs do not stand in a different category; Order 35 rule 3 apply to them in as much as it applies to other plaintiffs.  In the context of a legally aided plaintiff, section 18B of the Legal Aid Ordinance, Cap. 91 provides that in any case in which an aided person is obliged to furnish security for costs, the Director of Legal Aid may provide such security out of the legal aid funds. This serves to show that legally aided parties are not exempted from being liable to provide security for costs.

47.  We have read the Judge’s 29 September 2016 Decision and the reasons he gave for imposing terms for adjourning the trial. We are satisfied that he has given proper regard to Order 35 rule 3, the history of the case, and the fact that there are a number of outstanding costs orders against the plaintiff for which he has no recourse to the legal aid fund. In our view, the Judge has not erred in principle or in the exercise of his discretion to grant the adjournment on terms.

48.  We further reject the plaintiff’s argument that by reason of the doctrine of res judicator, the Judge is precluded from imposing the Adjournment Condition. The doctrine simply has no application for the reasons given by the Judge (29 September 2016 Decision [25] and [26]; 7 November 2016 Decision [9]). The decision of Barma J in HCSD 31/2009 does not have the effect in law of sheltering the plaintiff from his liability for the taxed costs. The decision also does not give rise to the doctrine of res judicata since the nature of and the issue involved in the proceedings before Barma J and those before the Judge are entirely different.

49.  As to the plaintiff’s complaint that the Adjournment Condition would stifle his claim, the Judge has set out in the 29 September 2016 Decision at [29] the points in reply, which do not support the plaintiff’s complaint. The plaintiff’s submission before us has failed to demonstrate that the Judge has erred in the exercise of his discretion. In particular, there is no evidence whether before the Judge or before us as to the plaintiff’s financial ability or to support the plaintiff’s complaint that his claim would be stifled.

50.  We are also satisfied that the Judge has given proper consideration to the amounts to be ordered. The Judge has explained that the amount of $438,491.60 to be paid to the defendant represents the amount of outstanding taxed costs, and the $1.2 million to be paid into court was arrived at having regard to skeleton bills of costs provided by the defendant’s solicitors in respect of two costs orders made when the plaintiff was not legally aided and the defendant’s costs thrown away by the adjournment.

51.  With regard to the plaintiff’s argument that the Adjournment Condition should be set aside because the defendant’s costs would be paid by the legal aid fund, the Judge has made it clear (29 September 2016 Decision [24(1)]) that $438,491.60 is in respect of costs orders made before the plaintiff was granted legal aid, whereas $1.2 million covers costs orders made when the plaintiff was not legally aided or when the legal aid certificate had been revoked. The plaintiff says that he has subsequently successfully appealed against the Director of Legal Aid’s decision and that the restoration of the legal aid certificate operates retrospectively to cover costs from the date of revocation (29 August 2016) to the trial of the Action. Even if we were to take this into account, it does not mean that the Judge was wrong to impose the Adjournment Condition when adjourning the trial to new dates or that the Judge’s order should be set aside (see [46] above).

52.  For the reasons above, the plaintiff’s arguments relating to the Adjournment Condition has no prospect of success.

Refusal to recuse

53.  The plaintiff argues that the Judge should have recused himself because of bias and his lack of experience in personal injuries cases. In support of his argument, the plaintiff contends that: (i) the Judge and the defendant’s counsel are friends, and they were in the same set of chambers when the Judge was in private practice; (ii) The Judge has close working relationship with Bharwaney J, being co-editors of a legal publication and co-members of a professional disciplinary panel, and Bharwaney J was previously the defendant’s counsel and despites and hates the plaintiff; and (iii) the Judge had to seek help from the defendant’s counsel and adopt his submissions. The plaintiff further relies on the transcripts of the hearings on 1, 2, 5, 7 and 23 September 2016.

54.  The law on apparent bias, known as the reasonable apprehension of bias test, requires the court to first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, and then to ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased: see Porter v. Magill [2001] UKHL 67 at [104]; Deacons (A firm) v. White & Case LLP & Ors (2003) 6 HKCFAR 322, at [18]-[30]; and Falcon Private Bank Ltd v. Barry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281 at [11].

55.  The various matters and arguments raised by the plaintiff fall short of showing bias on the Judge’s part. We do not accept what the Judge said and his exchanges with the plaintiff at the several hearings in September 2016 indicates that any actual or apparent bias or incompetence on the Judge’s part. The fact that the Judge ruled against the plaintiff on interlocutory applications per se is also not indicative of bias.  The fact that the Judge and the defendant’s counsel know each other and used to work in the same set of chambers, and the fact that the Judge has a working relationship with the defendant’s former counsel cannot satisfy the reasonable apprehension of bias test.  A fair-minded and informed observer would not conclude from these circumstances that there was a real possibility that the Judge was biased against the plaintiff.

56.  We are of the view that the Judge has given proper consideration to the plaintiff’s recusal application and he has not erred in refusing the application.

Conclusion on the Leave to Appeal Application

57.  For the reasons set out above, we are not satisfied that the plaintiff’s intended appeal enjoys any reasonable prospect of success. There is no other reason in the interests of justice why the appeal should be heard.  Accordingly, we dismiss the Leave to Appeal Application.

Order 59 rule 2A(8) RHC

58.  As the plaintiff’s applications are totally devoid of merits, we would make an order pursuant to Order 59 rule 2A(8) RHC that no party may under rule 2A(7) request our determination to be reconsidered at an oral hearing inter partes.

Costs

59.  Costs should follow event. The plaintiff, having failed in his applications, should pay the costs of the defendant on all the summonses, save that in relation to the summons filed on 17 February 2017 we make no order as to costs relating to the Striking Out Application in light of what is said in [23] and [24] above.

60.  The defendant has provided three statement of costs for summary assessment to cover: (i) the Leave to Appeal Application ($120,640); (ii) the Leave to Adduce Evidence Application ($200,681); and (iii) the Striking Out Application and the Adjournment Application ($101,831). These statements have not covered the 10 March 2017 Application which was taken out after the statements were lodged.

61.  We would make the following general observations on the defendant’s statements of costs:

(1)   The costs are to be taxed on party-and-party basis such that only costs that are necessary and proper are to be allowed.

(2)   The documents and submissions put in by the plaintiff for the summonses are voluminous, repetitive and raise a wide range of matters. The defendant’s legal team would therefore have to incur considerable time on reading them.

(3)   At the same time, we should not lose sight of the fact that the issues involved in the Leave to Appeal Application and other interlocutory applications are not complex. A lot of the arguments and matters had already been canvassed in the proceedings before the Judge.

(4)   Accordingly, it is not necessary to engage two counsel. A reasonably experienced junior counsel will suffice.

(5)   It also follows that the time spent by the solicitor, an experienced partner, on attendance and preparation of documents are in some instances excessive on party-and-party assessment.

62.  Having regard to our observations above and taking a broad brush approach, we would summarily assess the defendant’s costs on all the applications (other than the Striking Out Applications) at $200,000.

Disposition

63.  Accordingly, we make the following orders:

(1)   The plaintiff’s summonses filed on 21 November 2016, 22 December 2016, 17 February 2017 and 10 March 2017 are dismissed.

(2)   No party may request a reconsideration of this court’s determination at an oral hearing inter partes.

(3)   There is no order in respect of the costs of the application to strike out the affirmations filed by the defendant (paragraphs 1 to 3 of the plaintiff’s summons filed on 17 February 2017).

(4)   The plaintiff shall pay the defendant’s costs of the plaintiff’s 21 November 2016, 22 December 2016 and 10 March 2017 summonses and paragraph 4 of the 17 February 2017 summons, summarily assessed at $200,000.