YEUNG CHUNG WAI v. ST. PAUL'S HOSPITAL

DCEO7/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 7 OF 2003

R U L I N G

1.  The defendant makes another late application this morning.  Upon consideration, the defendant finds that it is inappropriate to rely on the two named employees in paragraph 19 of the second supplemental witness statement of Mr Yeung.  These employees were named as examples of employees who underperformed but still received regular increments in salary.

2.  Yesterday, I ruled that the issue of whether regular increments of earnings is suggestive of good performance is relevant since the plaintiff relies on such assertion to say that his performance was good.

3.  I have allowed the defendant to rely on paragraph 19 of the second supplemental witness statement of Mr Yeung where Mr Yeung touched on the defendant's policy in this respect.  Given Mr Chan SC's indication that the two named employees are inappropriate, I order that the second sentence of paragraph 19 be struck out.

4.  Mr Chan SC next applies to substitute two further examples by seeking leave to adduce the payroll records of Cheung Siu-wah and Lan Lai-ping which show regular increments in salary and he also seeks to rely on their appraisal reports (which I have only yesterday allowed the defendant to rely) to show that these two employees were in fact underperforming.  In fact, one of them, according to Mr Chan SC, was given a verbal warning.

5.  Mr Chan SC fairly recognised that he is now seeking to rely on these appraisal reports on a different premise than that was put to the court yesterday, i.e. that he relies on the reports for the dates and timing and not for their contents which he tries to do now. 

6.  I have in yesterday's ruling discussed the principles which the court has to apply and the balancing exercise the court has to undertake in considering whether to allow further discovery at a late stage.  I will not repeat those principles here.

7.  Here, the defendant's witness, Mr Yeung, is in a position to describe the policy of the defendant in relation to the salary increments pursuant to his second supplemental witness statement, namely, that there is no link between the increments and performance.  But Mr Chan SC now seeks to buttress such evidence on that policy with two concrete examples.  At this stage with the plaintiff on the threshold of going into the box this morning to give evidence, the inherent lateness of the application, particularly when the defendant had the opportunity to address this issue last week and to make the application to reply on further evidence and discovery yesterday, plainly affronts the principle that the case should progress expeditiously.

8.  Mr Chan SC says that this is more a matter of the court's concern as to time management than fairness.  I rather think that this is a matter of fairness for the litigants as well for fairness and justice require the plaintiff's claim to be progressed in a timely fashion.

9.  However, I cannot escape from the fact that the new documents are relevant to the issues before the court.  Although it is not a primary issue that necessarily requires a determination, it is clearly relevant to the plaintiff's assertion that he was performing well and his poor appraisal reports were the result of victimisation.  Since I am to preside on the trial, I should not say anything further on this.

10.  But whilst these two examples of employees newly cited by the defendant are arguably relevant, it is plain also and Mr Chan SC does not shy away from the fact that they do buttress the defendant's claim as to the relevant policy.  

11.  Mr Chan for the plaintiff complains that the application is late.  I agree, and Mr Chan SC very fairly again does not shy away from this fact. 

12.  Mr Chan for the plaintiff further complains that given that the parties expect to proceed with the evidence today, the plaintiff is deprived of the opportunity to investigate the matter.  With the plaintiff citing only two examples, the defendant cannot be certain these examples are appropriate or whether further investigation will throw up contrary examples.  Mr Chan SC says that the point about salary increment was initially raised by the plaintiff and if he chose not to conduct investigation or to adopt any examples himself in the first place, any prejudice now will only be minimal.

13.  However, it should not be forgotten that the defendant's express rebuttal to the plaintiff's assertion was only put in yesterday in Mr Yeung's second supplemental witness statement with my leave.  It is not for this court to say at this stage what evidence the plaintiff should adduce or prepare when there is no explicit rebuttal in the defendant's further supplemental witness statement prior to yesterday.

14.  The question of fairness arising from the defendant's limited selection of the two examples at this late stage has exercised this court.  Mr Chan SC has persuaded me that these documents are relevant to the issues.  He goes further to say that these matters, i.e. the payroll and the appraisal reports of the defendant's other employees, are more within the defendant's possession and knowledge.

15.  But the court is nevertheless concerned with fairness and justice to the parties and whether the claim's lateness and lack of opportunity to locate perhaps other contrary examples may overreach.  However, I am persuaded that after Mr Chan SC's concession that the discovery be expanded to cover the payroll and appraisal reports of all clerical clerks at the material time that the prejudice can be alleviated. 

16.  Given the concession by the defendant, I do not think that the point can be made that the defendant is selective in its choice of examples or that the plaintiff is prejudiced in this respect. 

17.  To address the prejudice that Mr Chan for the plaintiff claims in relation to the time that may be required to deal with this matter, it is by the particular circumstances of this case that it can be appropriately addressed.  Half of the original estimate of the trial date has been taken up by these preliminary applications.  Counsel estimate another three days will be required.  Even without these applications, the original estimate is wholly inadequate.  This case will necessarily have to be part-heard and adjourned and there will be time for the plaintiff to consider the further discovery and make appropriate investigation as he sees fit.

18.  In carrying out the balancing exercise, I note the documents are relevant and bear in mind concerns as to fairness to the plaintiff and the prejudice that may be suffered as well as the lateness of the application.  After consideration, I am of the view that the position can be covered by full discovery of the payroll and appraisal reports of all clerical staff of the defendant at the material time and that time be given for the plaintiff to consider the further discovery and to take appropriate steps as he sees fit.

19.  Although Mr Chan SC says that he cannot envisage any interlocutory application that may follow from the additional discovery which Mr Chan has alluded in his submissions, I form no view on the matter.

(Discussion re order and costs)

20.  The plaintiff applies for costs in respect of this application.  The plaintiff was embroiled in this application through no fault of his own. It is the defendant's application to adduce further discovery.  It is accepted that the application could have been done yesterday.  Indeed, when the defendant first made the application to adduce further evidence and discovery, it already had the benefit from advice of Mr Chan SC.  There was diligent search by his client to unearth documents for the purpose of yesterday's application.  Yet today the defendant has chosen to abandon the examples of employees they relied on yesterday and seek to adduce other examples of employees.  This is how the defendant wishes to conduct its case and the plaintiff has been visited with applications on both days.

21.  The special circumstances that are envisaged under section 73C(3) of the District Court Ordinance, Cap. 336 allows for the court to order costs on the ground that there are special circumstances which warrant an award of costs.  It is not special circumstances simpliciter but special circumstances which warrant an award of costs.  In this respect, the special circumstances would be something other than malice and frivolity which is the other limb that allows costs to be ordered under section 73C (3).

22.  Mr Chan SC has referred me to the judgment of Deputy High Court Judge Muttrie dated 23 June 2003 in the case of L v Equal Opportunities Commission, where the learned judge referred to the seriousness and the obstructive nature of the conduct of the party that attracted an order for costs against him. 

23.  However, that is only an example and the court is not bound by the circumstances of that case in considering whether to grant costs.  The court will have to look at the nature of the application and the way that the application is being conducted to consider whether there are special circumstances.  I consider that the order for costs made in the L v Equal Opportunities Commission case merely an example.

24.  Parties who make applications at the eleventh hour, particularly with full legal advice and representation, should ensure that the applications are complete.  If they alter their case, the other side will have to address the altered position.  It is something that is special and out of the ordinary.  One would have expected that if one's house has to be put in order, it would be done in a comprehensive fashion.  Nothing has arisen in relation to the conduct of the present proceedings that would have raised this matter save and except for the defendant's decision to abandon its two examples and to rely on fresh examples of employees.

25.  I have accepted that these matters are relevant but I will also have to consider how the application was made.  Mr Chan SC referred to this as a balancing exercise and reminded that the court will have to conduct a balancing exercise in any event.  However, there is a limit to what is acceptable even bearing in mind section 73C.  The spirit of section 73C is based on the nature of these claims, namely, disability discrimination.  I bear in mind the present application before me is procedural and it deals with the manner of conduct of the case.  Having considered all the factors, given the nature of the application, the fact that it could have been done yesterday and the fact that it is a change of position by the defendant, I believe that there are special circumstances that warrant an award of costs, and in the circumstances, I order that the defendant do pay the plaintiff costs of today's application.

26.  I think it is appropriate in this case that there will be certificate for counsel, and I will assess the costs as half day for the assistance of the taxing master.

(Further discussion re costs)

27.  I consider it is an appropriate case to award gross sum assessment of costs on a party-and-party basis.  Whilst I consider this is an application with special circumstances that warrant an award of costs, I see no basis for saying that this is an appropriate case for an indemnity basis of taxation.  Gross sum assessment of costs is not mini-taxation, and on the broad heads of claim of half refresher for counsel and three and a half hours of solicitors' costs of a solicitor of eight years' standing at $2,300 an hour, I award $23,000 as the costs of this application to be paid by the defendant to the plaintiff.