MA MAN CHUN and MA MAN KAM, the Administratrices of the Estate of FOCK KAM CHAU, Deceased v. FU KA ENGINEERING & CONSTRUCTION LTD AND OTHERS

HCPI 272/2020

[2026] HKCFI 1980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 272 OF 2020

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D E C I S I O N

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1.  On 27 October 2025, this court handed down the decision (“the Decision”) in respect of the plaintiffs’ application for leave to amend their statement of claim. This court made a nisi costs order in terms as stated in their summons. The plaintiffs now apply to vary the nisi costs order.

2.  The same definitions and abbreviations in the Decision are adopted for the present purpose.

THE ORDER

3.  After hearing substantive argument, this court gave leave to the plaintiffs to amend and file their amended statement of claim as per the draft annexed to their summons except for the following:

(1)  a typo-correction in the draft amendment under §12A(d);

(2)  addition of a qualifying phrase at the beginning of the draft amendment under §8(o);

(3)  deletion of references to specific safety equipment from the draft amendments under §8(t) and (u) respectively; and

(4)  disallowing the draft amendment under §8(v).

4.  This court gave consequential leave for the filing and service of amended defence and amended reply respectively as well as direction for further case management.

5.  This court made an order as to costs in terms as set out in the plaintiffs’ summons, that was for them to pay the defendants’ costs of and occasioned by the application for leave to amend, such costs shall be taxed, if not agreed, with certificate for counsel. The plaintiffs’ own costs shall be taxed in accordance with legal aid regulations. The costs order is nisi.

THE APPLICATION TO VARY

6.  By their summons filed on 7 November 2025, the plaintiffs apply to vary the nisi costs order. Directions were subsequently given for the application to be disposed on paper without oral hearing, and for that purpose written submissions to be lodged.

7.  The plaintiffs’ present application is premised on their Calderbank letter dated 19 August 2024, which was 2 months prior to the hearing. They proposed that the defendants consented to their application to amend with costs to the defendants as stated in their summons. Consequence in terms of adverse costs sought on a higher basis, should the defendants reject the offer, was warned about. The defendants indeed rejected the offer by their letter dated 21 August 2024. Hence the hearing of argument.

8.  Now on the basis that majority of the amendments sought were eventually allowed as mentioned, the plaintiffs seek an order that:

(1)  the costs of the application to amend up to 20 August 2024 and the costs of and occasioned by the amendments be to the defendants in any event to be taxed if not agreed;

(2)  the defendants do pay the plaintiffs the latter’s costs of the application to amend from 21 August 2024 onwards, including the costs of the hearing on 23 October 2024 and the preparation thereof, with certificate for counsel up to the date hereof to be taxed on an indemnity basis (or any other basis as determined by the court) if not agreed;

(3)  the plaintiffs’ own costs to be taxed in accordance with legal aid regulations;

(4)  costs of this application to vary to be paid by the defendants on an indemnity basis (or any other basis as determined by the court) to be taxed if not agreed;

(5)  the plaintiff’s own costs (of this application) to be taxed in accordance with legal regulations.

STARTING POINTS

9.  A couple of starting points peculiar in the circumstances of this case.

10.  First, the plaintiffs in their submission for the present purpose point out that the purpose of the application to amend was to address the defendants’ complaint about the apparent gaps between the statement of claim and the plaintiffs’ opening submissions at the trial, which was aborted by the Learned Judge. To be fair, as this court noted in §15 of the Decision, the Learned Judge took a similar view about the plaintiffs’ pleading deficiency, which partly caused the abortion of the trial before her. She directed for the application to amend the statement of claim to be taken out as a pre-requisite to the resumption of the trial. Counsel for the plaintiffs also acknowledged that at the time. In other words, it was from the outset the plaintiffs’ problem, and their application to amend was remediation.

11.  Second, the ambit of the amendments was very much set by the circumstances mentioned above which brought about the application to amend and were explained in the Decision. Unlike an ordinary application to amend, the plaintiffs were expected in these circumstances to amend their pleading to enable them to advance the contentions, as rehearsed in their opening in the aborted trial, on the basis of the existing state of the evidence. Pleading of contentions entailing the opening up of the state of evidence was not expected. With that in place, there was a legitimate concern on the part of the defendants and the court to scrutinise whether the proposed amendments were within such parameters.

12.  As explained in §36 of the Decision, the question was whether the amendments were contentions based on facts either known (and therefore undisputed) or evidence, albeit subject to understanding or interpretation (which is disputable). Only if the contention clearly fell foul of either cover, or failed the specific challenge on any of the grounds put forward by the defendants, should its introduction be denied.

13.  Third, the plaintiffs were seeking indulgence of the court and hence their expected readiness to pay the costs of and occasioned by the application even if the amendments were allowed. Such costs in the normal course of events would include those of the hearing of the application to amend, unless any part of such costs were unreasonably incurred: see for instance Man Fong Hang v Man Ping Nam & Ors [2002] 4 HKC 538 at §§23-24.

COST OF AND OCCASIONED BY THE HEARING

14.  The general discretion of the court on costs is provided for under O62, r3(2A) and specifically r5 of the Rules of the High Court, Cap 4A:

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account

(aa) the underlying objectives set out in Order 1A, rule 1;

…

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings…

(e) the conduct of all the parties;

…

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

…”

15.  The plaintiffs did offer in their summons for leave to amend to pay costs to the defendants, which aligned with the expectation according to established principles. What calls for consideration for the present purpose is the costs of and occasioned by the substantive argument of the application to amend.

16.  The plaintiffs argue that such costs could have been saved, had the defendants accepted their offer by the Calderbank letter. The defendants argue that they were entitled to proceed with the substantive argument, and the plaintiffs were not wholly successful after that.

17.  In terms of the outcome, the plaintiffs’ success indeed fell short of being complete but only to the extent of those parts disallowed as mentioned above. The defendants were proven justified in taking issue as to those disallowed parts of the intended amendments. That should be taken into account in terms of incidence of costs liability, but the extent of that is minor.

18.  The real question is whether the defendants had reasonable ground for taking issue as to those amendments which were eventually allowed. The authorities cited by counsel on both sides essentially concerned this question, which was invariably answered according to the stance and conduct of the opposing end of the application who eventually failed in the opposition. I would add that adverse costs on a higher than usual basis, as now also sought by the plaintiffs, is warranted only in serious case of unreasonable opposition or conduct of the substantive argument.

19.  In the present context, the position of the plaintiffs, in line with the norm and as stated in their summons, was to pay the defendants’ costs of and occasioned by their application to amend. Their Calderbank letter was no more than stating that norm but their offer of that norm was on the table on condition that the defendants conceded. One may say that refusal to concede would not have excluded counter-offer on terms, but the defendants rejected the offer without counter-offer. The substantive argument proceeded in the premises.

20.  In the circumstances, the defendants’ insistence on the substantive argument, if unreasonably, might deprive them of their costs of the hearing which would have been payable by the plaintiffs as a matter of norm. If circumstances warrant, they may even be ordered to pay the plaintiffs’ costs of the substantive argument.

21.  Without prejudice to what were actually said in the Decision, I summarise the outcome of the issues taken by the defendants as follows:

(1)  The argument in respect of late amendment was but a neutral consideration in view of how the application to amend came about.

(2)  The criticism about selective references and failure to heed to the evolution of the evidence in the related criminal proceedings was either questionable or arguable and premature.

(3)  The consent offered at the hearing was limited to the cosmetic and uneventful, and therefore minor, amendments to §§1 and 2(i) and (j) of the statement of claim. The qualified consent offered to the amendment of §2(k) was found to be unjustified.

(4)  The other amendments under §§2, 5, 8, 11(e), 9A and 12A were opposed strenuously, but various arguments advanced by the defendants were not accepted.

(5)  The opposition failed except for the extent concerning §§8(o), (t), (u) and (v) as mentioned above. The extent of successful opposition was minor.

22.  In the circumstances, I find basis for departing from the norm, and depriving the defendants’ costs of the argument. However, the scrutiny with a view to answering the question repeated in §12 above was not a straightforward exercise in the circumstances of this case. I refrain from condemning the defendants as having resisted regardless or having attempted under the impression that their costs would be undertaken by the plaintiffs in any event. I also refrain from elevating the finding of the defendants’ failure in opposition to conduct on their part so unreasonable as to warrant an adverse costs order so that they have to pay the plaintiffs’ costs of the argument. As such, I am only minded to order that the defendants be deprived of their costs of the argument, including the hearing and preparation, to reflect the outcome of the application.

23.  The costs occasioned by the substantive argument would include those incurred for preparing the joint statement of agreed and non-agreed relevant facts pursuant to the direction of this court. §§18 to 20 of the Decision refer. Considering the correspondence between the two sides, I am given the impression that both of them had their part to play in the failure to come up with the agreed joint statement. That said, as this court remarked in the Decision (at §104), the joint statement, albeit subsequently aborted for the purpose of the present application, remains necessary and useful, if this case is to be ready for trial on the basis of the current state of the evidence. Therefore, the parties are not absolved from the duty to assist the court by resuming the exercise with a view to finalising the joint statement, though now for the trial. Indeed, after the close of the amended pleadings, and pursuant to the parties’ joint proposal, this court directed in March 2026 for such a joint statement to be prepared for the purpose of the trial.

24.  As such, and as mentioned in the Decision, the parties’ inputs in the exercise of compiling the joint statement did not solely serve the purpose of the application to amend and were thus written off or wasted upon the Decision. It follows that of the costs incurred in connection with the substantive argument of the plaintiffs’ application to amend, those so far incurred by the parties for preparing the joint statement should equally be part of those incurred by the parties for the necessary case management with a view to the trial. Such costs in these circumstances should be in the cause.

25.  As to the basis of taxation, this court is not satisfied that the defendants’ failure discussed above should further attract the consequence of costs payable on a higher than usual basis. As discussed, failure in opposing the application and beating the Calderbank offer in the present case substantially does not suffice. Strenuous as it was, opposition of the application by way of blatant unreasonable conduct of argument was not readily apparent. Costs should remain to be taxed on the usual basis.

ORDER

26.  The nisi costs order dated 27 October 2025 is varied as follows:

(1)  The plaintiffs do pay to the 1^st, 2^nd and 3^rd defendants the following costs in any event to be taxed, if not agreed:

(a)  costs of and occasioned by the summons filed on 14 May 2024 but not the defendants’ costs of the hearing and the preparation thereof; and

(b)  costs of and occasioned by the amendments.

(2)  The parties’ costs of and occasioned by the preparation of the joint statement of agreed and non-agreed facts up to the date hereof pursuant to the order of this court dated 23 October 2024 be in the cause.

(3)  The plaintiffs’ own costs be taxed in accordance with legal aid regulations.

27.  The plaintiffs did not wholly succeed in the present application while the defendants did not yield at all. The plaintiffs remain the net winner. There be a nisi order that the 1^st, 2^nd and 3^rd defendants do pay the plaintiffs their costs of the present application to be taxed if not agreed with certificate for counsel. Likewise, costs shall be taxed on the usual basis. Usual terms as to variation of nisi costs order as directed before apply.