LAM WAI LING MAYME v. HUTCHISON TELECOMMUNICATIONS (HONG KONG) LTD

HCPI 461/2015

[2018] HKCFI 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 461 OF 2015

__________________________

__________________________

__________________________

REASONS FOR DECISION

__________________________

1.  At the hearing of this appeal from the decision of Master Harold Leong on 8 December 2017, I allowed the appeal from his decision and stated that I would hand down my reasons at a later date. These are my reasons for my decision.

2.  On 17 March 2017, the learned Master granted leave to the defendant pursuant to Order 22, r.10(1) of the Rules of the High Court (“RHC”) to withdraw a sanctioned payment of HK$63,000 before the expiry of 28 days from the date of payment in.

3.  He also ordered that the sum of HK$63,000 paid into the Court by the defendant by way of sanctioned payment on 3 November 2016 be paid out forthwith to the defendant through its solicitors, Messrs. Fairbairn Catley Low & Kong, and that any interest accrued on the sanctioned payment be paid out to Messrs.  Fairbairn Catley Low & Kong.  Finally, he made a costs order nisi that there be no order as to costs.

4.  I set aside these orders and ordered that the defendant’s summons for leave to withdraw the sanctioned payment be dismissed.  I also ordered that the costs of the appeal and below be to the plaintiff, with certificate for counsel both here and below, to be taxed if not agreed.

5.  The matter in issue turned on a narrow point: whether there has been such a change of circumstances as would render it unjust to allow the plaintiff to benefit from the sanctioned payment.

The Legal Principles

6.  The relevant legal principles were not in dispute. Order 22, r. 10(1) states:

“Withdrawal or diminution of sanctioned payment

(1) A sanctioned payment may not be withdrawn or diminished before the expiry of 28 days from the date the sanctioned payment is made unless the Court grants leave to withdraw or diminish it.

(2) If there is subsisting an application to withdraw or diminish a sanctioned payment, the sanctioned payment may not be accepted unless the Court grants leave to accept it.

(3) If the Court dismisses an application to withdraw or diminish a sanctioned payment or grants leave to diminish the sanctioned payment, it may by order specify the period within which the sanctioned payment or diminished sanctioned payment may be accepted.

(4) If a sanctioned payment is withdrawn, it does not have the consequences specified in this Order.”

7.  In my reasons for decision in Rai v Pacific Construction (HK) Co. Ltd. [2011] 3 HKLRD 469, [2011] 3 HKC 550, which concerned an application to withdraw a sanctioned offer after the expiry of 28 days from the date that it was made, I had stated:

“31. The court’s discretion to grant or to refuse leave to accept the sanctioned offer after the expiry of 28 days from the date that it was made is unfettered. Goddard LJ’s observations in Cumper v Pothecary in connection with the defendants’ application for leave to take up monies paid into court apply with equal force to sanctioned offers. He said, at p. 67-68:

“When once the seven days have expired the plaintiff can only get the money if he can obtain an order, and before the court makes an order it must consider whether it is right so to do. [Counsel for the plaintiff] admitted that, if the defendant could show that he had grounds for alleging fraud or mistake which was unknown to him when he paid the money in, the court would refuse to allow the money to be paid out, but he contended that these were the only grounds on which an order could be refused.

We can see no ground for putting such a limit on the powers of the court.  If the court can in any circumstances refuse an order, it is plain that in making or refusing an order the court must be acting judicially and not ministerially.  If the plaintiff can accept as of right up to the eve of trial, why might he not do so during the trial?  The note in the Annual Practice to which [counsel for the plaintiff] referred clearly has reference to the concluding words of r.3, which says that an order may be made at any time before, at, or after the trial.  In other words, the plaintiff may ask for an order at any time, but it does not mean that he is necessarily entitled to it. In substance the same argument was advanced by the plaintiff in Frazer & Haws, Ld. v Burns (I), and was briefly answered by the Master of the Rolls, who inquired: ‘What is the good of the seven days?’  It is, in our opinion, clear that, if the plaintiff does not accept the money within the prescribed time, the court has thereafter complete discretion either to make or refuse an order.  In the majority of cases, no doubt, it would only be a question of costs, whether the plaintiff should pay those incurred between the expiration of the seven days and the date of the application, but there may be many other considerations.”

32. I agree with the submissions of [counsel] that the discretion of the court in this type of application is very wide and that it should be exercised as widely as possible so as to advance the overriding objective to do justice to the parties concerned.  It is inappropriate to attempt to give an exhaustive list of all relevant factors to be taken into account.  The relevant factors must vary from case to case.  In considering these factors, the court must not lose sight of the fact that the object of O.22 is to promote settlements, save costs, and avoid the uncertainties of litigation. In a Judiciary Press Release dated 3 March 2004, Ribeiro PJ, Deputy Chairman of the Working Party on CJR stated that “the major recommendations of the Working Party include... encouraging earlier, fair settlements...” and that “the rules should be interpreted and applied with a view to increasing cost-effectiveness of the procedures in question... facilitating settlement and achieving a fair distribution of the court’s limited resources among its users.”

33.   The main criterion must be whether there has been such a change of circumstances as would render it unjust to allow the offeree to benefit from the offer.  A change of the evaluation of the merits of the case may or may not be a good reason to advance to resist the leave application.  New evidence coming to light which materially affects the relative strengths and weaknesses of the parties’ respective cases can be a relevant circumstance[1].  However, an offeror who chooses to make a sanctioned offer before obtaining expert evidence may find himself in difficulty trying to resist leave on the ground that he is now in possession of favourable expert evidence. May LJ refused leave to reduce a payment into court in Flynn v Scougall (Practice Note) [2004] 1 WLR 3069 for the reason that the defendant in that case had chosen to make a Part 36 payment before her expert’s report arrived and thereby secured the advantage of an earlier payment into court.  The favourable expert report was not the product of new evidence or a change of law but was a review of available information by the expert which could have been obtained prior to making the payment into court[2].”

8.  WS Clarke’s commentary in Hong Kong Civil Court Practice 2017 at Marginal Note 22.10.3 provides a useful summary of the principles and case law:

“Exercise of court’s discretion on application to withdraw or accept

Where leave is required to withdraw, amend or accept a sanctioned payment under Order 22 rule 10, the court is guided by authorities under the previous Order 22. In Tsang Kam Ming v Artchamp Investment Ltd [2002] 2 HKC 693, 696B–E, referring to Cumper v Pothecary [1941] 2 KB 58(CA) it was held that the power to grant leave to withdraw is discretionary and the defendant must satisfy the court there are good reasons. Good reasons include a change of circumstances increasing the prospects of the defence, or decreasing the likely quantum of damages. This may arise from a discovery of further evidence, putting ‘a wholly different complexion on the case’ as in Cumper (above, at 70) or finding a key witness only after payment in has been made, as in Tsang Kam Ming (above). In Wong Pan v Eastern Pacific Circuits (HK) Ltd [2007] HKCU 408 (DCPI 1283/2004; Judge CB Chan; 16.11.2005) a defendant was granted leave to withdraw a payment into court where subsequently discovered documents gave rise to a new defence.

In Polyever Holdings Ltd v Savills (HK) Ltd [2014] 5 HKC 588 (HCA 1039/2010; Anthony Chan J; 30.06.2014) (para 17) the court distilled the applicable principles from Cumper (above), Rai Rana Magar Pabitra & Anor (personal representatives) v Pacific Construction (HK) Co Ltd [2011] 3 HKC 550, [2011] 3 HKLRD 469 and Capital Bank plc v Stickland [2005] 1 WLR 3914, [2004] EWCA Civ 1677 (BAILII), and set them out in the following words:

(i) The discretion of the court is unfettered (Rai, para 31);

(ii) Such discretion is to be exercised judicially (Cumper, p 67);

(iii) The main criterion is whether there has been a change of circumstances as would render it unjust to allow the offeree to benefit from the sanctioned offer/payment (I see no reason to treat a sanctioned offer and a sanctioned payment differently. Indeed, they received parity of treatment under O 22.) (Rai, para 33). For instance, the discovery of further evidence, which puts a wholly different complexion on the case, or a change in the legal outlook brought about by a new judicial decision (Cumper, p 70);

(iv) Delay in making the application is a relevant consideration (Rai, para 34, Capital Bank, para 15);

(v) The substantiality of the offer to accept is a relevant consideration (in Capital Bank, the defendant made a late application to accept the claimant’s CPR Part 36 offer to settle for a certain sum. However, the defendant’s acceptance was not backed-up by any security for payment.) (Capital Bank, para 15);

(vi) The conduct of the applicant is a relevant consideration (Capital Bank, para 19);

(vii) The court will not, in the interlocutory application, conduct a mini-trial of the issues raised (Rai, para 37);

(viii) After taking into account all the relevant factors, the court will be guided by the overriding consideration to do justice between the parties (Rai, para 38).

In Polyever the court added (paras 18–19) that the reason(s) for a late application is relevant, and that provided the offeree is willing to bear the costs wasted as a result of delay in accepting the offer, then barring any change of circumstances he should normally be allowed to accept the same. See also ICICI Bank Ltd v Diamart Ltd & Ors [2014] HKCU 2089 (HCA 618/2014; Chow J; 04.09.2014) (paras 26–27) where the court adopted the principles set out in Polyever and added that in an appropriate case the court may take into account the interests of third parties (for example, other creditors, if there is an insolvency).

Leave to withdraw a sanctioned payment was refused in Yeung Moon Tong v Ocean Asia (HK) Ltd & Anor [2014] 2 HKC 532 (DCEC 1113/2013; Judge Kent Yee; 09.12.2013). In making the application the respondent argued that there had been a change of circumstances in that new information had been provided by the applicant. It was held that the respondent should have obtained that information and considered the same thoroughly before making the sanctioned payment; that in case of any doubt they should have carried out further investigation.”

9.  I would conclude by re-echoing what I said in Rai v Pacific Construction (HK) Co. Ltd., thatthe relevant factors must vary from case to case.  In considering these factors, the court must not lose sight of the fact that the object of O.22 is to promote settlements, save costs, and avoid the uncertainties of litigation.

The Present Case

10.  I gratefully adopt the summary of the relevant facts and chronology of events that were set out in the decision of the learned Master:

“2. This is a personal injury claim which commenced on 5 May 2015. The Statement of Damages quantified the claim at some HK$3.48M. The claim under “Future Loss of Earnings” was for HK$2.15M on the basis that “the plaintiff would not be able to resume her pre‑accident job or any similar employment in full capacity”.

3. The corresponding Employees’ Compensation claim was settled shortly after commencement of the current action at HK$831,707.

4. Medical experts in 3 specialty areas (neurology, ophthalmology and psychiatry) were instructed. The joint neurological expert report (26 April 2014) predated the commencement of the current action. The joint ophthalmology expert report was dated 22 December 2015 and the joint psychiatric expert report was dated 1 December 2015. There was also a supplemental joint psychiatric expert report dated 10 June 2016.

5. On 25 March 2016, the plaintiff obtained a “Form 1” from her treating doctor, Dr. Jonathan Wong, certifying that she was permanently unfit for work as a sale person. This form was used for application for long service payment and thus not directly related to the current action.

6. Five days later, on 30 March 2016, the plaintiff filed and served a Revised Statement of Damages quantifying the claim at over HK$5M (with the claim under “Future Loss of Earnings” for HK$3.65M).

7. The plaintiff disclosed this “Form 1” in her 6^th List of Documents filed on 3 May 2016.

8. On 3 November 2016, the defendant filed and served a Notice of Sanctioned Payment of HK$63,000 (on top of the EC claim already settled).

9. On 14 November 2016, the plaintiff rejected the sanctioned payment and made a Sanctioned Offer of HK$380,000.

10. On 16 November 2016, Labour Department wrote to the defendant on its ruling on the “Form 1” application [whether or not the plaintiff was entitled to a long service payment under section 31R(6) of the Employment Ordinance]:- “I have, after considering the advice of medical reports, come to the conclusion that the above-named employee is not entitled to a long service payment because she is considered not to be permanently unfit for the particular type of work she was engaged in.”

11. On 21 November 2016, the defendant took out a summons to withdraw the sanctioned payment.

12. …

13. On 21 November 2016, the defendant’s solicitors, Fairbairn Catley Low & Kong (“FCLK”) wrote to the plaintiff’s solicitors, Li & Lai (“LL”) inviting the plaintiff to consent to the withdrawal summons:-

“…In light of your client’s rejection, and the letter from Labour Department dated 16 November 2016 that the plaintiff is considered not to be permanently unfit for the particular type of work she was engaged in, we have on 21 November 2016 filed into the Court a Summons…we hereby seek your client’s consent for an order in terms of the Summons…”

14. LL replied on 22 November 2016 agreeing to the proposed terms except a suggested amendment that the costs of the summons be agreed at HK$800.

15. FCLK sent the Consent Summons with the suggested amendments to LL on 22 November 2016 for endorsement.

16. LL did not reply to the letter. Instead, on 25 November 2016, LL filed a Notice to Accept the Sanctioned Payment.

17. As the defendant has already applied for withdrawal of the sanctioned payment, the plaintiff’s Notice of Acceptance will not take effect until the determination of the application.”

11.  Clearly, the plaintiff had a change of mind and decided to accept the sanctioned payment. The learned Master rightly observed that the plaintiff was prevented from doing so.  As stated above, Order 22, r.10(2) provides that if there is subsisting an application to withdraw or diminish a sanctioned payment, the sanctioned payment may not be accepted unless the Court grants leave to accept it.

The Medical Expert Evidence

12.  In their joint neurological expert report dated 26 April 2014, the experts set out the circumstances of the accident and the plaintiff’s treatment as follows:

“4.   On 19^th November 2012, Ms. Lam was injured at work.  She recalled that it was around 2:30 pm. she was seated at one end of the sales counter.  As she got up from her seat and walked towards the other end, she hit her left forehead; the left eye and the left face against the aluminium edge of the partially open door of a wall cabinet.  She was momentarily dazed without loss of consciousness.  She described “whitening” of her vision.  She squatted down but she did not fall.  She extended her right hand for support.  She felt dizzy and pain around the left eye.  She also had bleeding on the face.  She managed to stand up but she had to grope for support.  After brief assessments by a local general practitioner and at Hong Kong Baptist Hospital, she attended the Accident and Emergency Department of Queen Elizabeth Hospital (QEH).  X-rays were taken and her facial wounds were dressed.  No suturing was required.  She was then allowed home.  She was ambulatory with the support of her husband.

The next day, she noted a scotoma (an area of impaired vision) in the central field of the left eye.  She consulted the ophthalmologist at Hong Kong Eye Hospital but no abnormality was identified. She then consulted Dr. J. Woo (ophthalmologist in private practice) on 27^th November 2012.  Examination showed traumatic retinal holes and haemorrhage in the left eye.  The right eye was normal. Dr. J. Woo made the diagnosis of head and left eye blunt injury with (a) eyelid and facial skin abrasions, and (b) left retinal holes and haemorrhage.  She was advised to avoid performing vigorous exercises while topical anti-inflammatory (indomethacin) eyedrop was prescribed.  Retinal laser photocoagulation of the left eye was performed on 5^th December 2012 to seal off the retinal holes, to stop further bleeding and to prevent retinal detachment.

Re-assessment on 13^th December 2012 showed no further retinal bleeding; the recovery was good.  She continued follow-up evaluations. Optometric examination on 10^th January 2013 showed perfect vision with proper optical aids.  She complained of persistent headache and some phobic symptoms whilst at work in the office; Dr. J. Woo suggested neurological or psychiatric consultation. When last seen on 27^th November 2013, she complained of mild blurring of vision and floaters in the left eye.  Examination showed normal anatomy and function in the eyes. Dr. J. Woo could not identify any obvious ophthalmological reason why she could not resume her pre-accident duties or participate in work trial.  The risk of further deterioration in her left retinal status (e.g. retinal detachment) was deemed minimal.  No further evaluation was needed.

5.   Magnetic resonance imaging (MRI) of brain was performed in December 2013 at the Hong Kong Health Check & Medical Diagnostic Group Ltd; it was normal with no traumatic lesion.

6.   She was seen by Dr. J.K.C. Wong (general practitioner in private practice) from 21^st November 2012 to 15^th August 2013.  She complained of headache, dizziness and visual blurring.  Dr. J.K.C. Wong listed Accidental Head Injury, Headache, Left Eye Floaters, Rhinitis, Pharyngitis, Bronchitis, Dermatitis, Anxiety, Depression, Acid Reflux Disease, Gastritis and Constipation in varying combinations as the diagnoses on the sick leave certificates.  Dr. J.K.C. Wong had also arranged for assessment by the neurologist (Dr. C.W. Keung) and the neurosurgeon ((Dr. Y.T. Kan) but apparently neither of them could offer any diagnosis or treatment.  She continues to consult Dr. J.K.C. Wong every 1 to 2 weeks.

She also attended the Psychiatry Clinic at Kwai Chung Hospital for about 7 sessions.  She said no diagnosis was made and no medication was prescribed.

Her current medications consist of analgesic (Norgesic tab 1 tds prn, Paracetamol 500mg tds prn, Mefenamic acid 500mg tds prn) and anti-dizziness medications.  They are all consumed on a need basis.”

13.  After their joint examination, Dr Yu Yuk Ling, the plaintiff’s neurological expert, noted that although she did not lose consciousness, her symptoms of headache and dizziness were compatible with post-concussional syndrome (“PCS”). He was of the opinion that she should be able to resume her pre-accident employment with mildly compromised work capacity estimated to be 1% loss of earning capacity. He assessed her permanent impairment of the whole person at 1%.  Dr Yu was of the view that 6 months’ sick leave was reasonable. Dr Edmund Woo, the defendant’s expert, was of the opinion that she had no residual neurological disability as a result of this accident and that she should be able to resume her pre-injury occupation with no loss of earning capacity. He could find no neuropathological basis for her headache and dizziness. Dr Woo would only allow 1 month’s sick leave.

14.  In their joint ophthalmological expert report dated 22 December 2015, Dr Benedict Liang, the plaintiff’s expert expressed the opinion, from an ophthalmological point of view, that her visual disability was not significant, no further deterioration was expected and her prognosis was good. He assessed her permanent impairment of the whole person at 1% and he was of the opinion that she could return to work as a salesperson.  For retinal hole and photocoagulation therapy, the appropriate sick leave was around 4 to 7 days. If a neurologist confirmed that she suffered from PCS, then appropriate sick leave due to visual disturbance from PCS was 3 to 6 months. Dr Cheung Sek Hong, the defendant’s expert also assessed her to suffer from a 1% permanent impairment of the whole person.

15.  The only substantial difference in the medical expert evidence came from the psychiatric experts. In their joint psychiatric report dated 1 December 2015, Dr Stephen Ng, the plaintiff’s expert, expressed the opinion that the plaintiff was suffering from post-traumatic stress disorder and major depressive disorder - single episode. He was of the view that the plaintiff was likely to be compatible with most useful functioning after the intensive treatment he had recommended.  She may work in her previous job after the recommended treatment and she need not avoid any activities from a psychiatric point of view.  Dr Peter Yu, the defendant’s expert, was of the opinion that the plaintiff had reported exaggerated descriptions of mental symptoms to build up a case of severe mental distress, that she did not have any mental symptoms or mental disorder, and that she had no impairment which affected her then or future earning capacity.

The Form 1 Certificate and the Labour Department’s Ruling

16.  In their joint neurological expert report dated 26 April 2014, Dr Yu Yuk Ling and Dr Edmund Woo had already noted that:

“6. [The plaintiff] was seen by Dr. J.K.C. Wong (general practitioner in private practice) from 21^st November 2012 to 15^th August 2013. She complained of headache, dizziness and visual blurring. Dr. J.K.C. Wong listed Accidental Head Injury, Headache, Left Eye Floaters, Rhinitis, Pharyngitis, Bronchitis, Dermatitis, Anxiety, Depression, Acid Reflux Disease, Gastritis and Constipation in varying combinations as the diagnoses on the sick leave certificates. Dr. J.K.C. Wong had also arranged for assessment by the neurologist (Dr. C.W. Keung) and the neurosurgeon ((Dr. Y.T. Kan) but apparently neither of them could offer any diagnosis or treatment. She continues to consult Dr. J.K.C. Wong every 1 to 2 weeks.”

17.  The neurologists and ophthalmologists have expressed their expert opinion of the plaintiff’s condition after their forensic examination of her. They did so well understanding that their paramount duty was to the court and that their overriding duty was to help the court impartially and independently.  Whilst a report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person, absent leave of the court, the opinion and diagnosis of the treating doctor is not admissible as expert opinion evidence.

18.  On 25 March 2016, Dr J.K.C. Wong completed and signed a Certificate of an Employee’s Permanent Unfitness for a Particular Type of Work. This was a statutory form under the Employment Ordinance, Cap. 57, called Form 1.  As the learned Master correctly noted, this form was used for an application by the plaintiff for long service payment and thus not directly related to the current action.  In the Form 1 dated 25 March 2016, Dr J.K.C. Wong certified “based on the findings as revealed in today’s consultation” that the plaintiff was permanently unfit for her present job as a sales person for the following reasons: “headache, dizziness, visual blurring”.  As noted above, the admissible expert opinion of the neurologists and the ophthalmologists was to the contrary.

19.  The plaintiff’s Revised Statement of Damages dated 30 March 2016 did not refer to the Form 1 dated 25 March 2016. In April 2016, the defendant, acting by itself and without the involvement of its solicitors in this action, lodged contrary medical evidence with the Labour Department to oppose the plaintiff’s claim to long service payment.  As stated in §10 above, the Form 1 was disclosed in the plaintiff’s further list of documents filed on 3 May 2016.

20.  On 3 November 2016, the defendant filed and served a Notice of Sanctioned Payment of HK$63,000 (on top of the EC claim already settled). On 14 November 2016, the plaintiff rejected the sanctioned payment and made a Sanctioned Offer of HK$380,000. On 16 November 2016, Labour Department expressed the opinion that the plaintiff was not entitled to a long service payment because she was considered not to be permanently unfit for the particular type of work she was engaged in.  On 21 November 2016, the defendant took out a summons to withdraw the sanctioned payment.

21.  The submissions below and before me turned on the question whether or not the Labour Department’s “ruling” on 16 November 2016 amounted to such a change of circumstances as would render it unjust to allow the plaintiff to benefit from the sanctioned payment. I had little hesitation in allowing the appeal. Just as the opinion expressed by Dr  J.C.K. Wong in the Form 1 dated 25 March 2016 was not admissible expert opinion in these proceedings, so too was the administrative act of the Labour Department officer, who came to her conclusion after considering the advice of unknown medical experts, of no probative value to the issues raised in this action.  If this action had proceeded to trial, those issues would have been determined by the trial judge after a thorough consideration of the admissible expert evidence of the neurologists, the ophthalmologists and the psychiatrists, all of whom had been granted leave to give expert medical evidence in this action. The Labour Department’s “ruling” on 16 November 2016 did not amount to such a change of circumstances as would render it unjust to allow the plaintiff to benefit from the sanctioned payment.

22.  I should mention, as an aside, that the plaintiff’s application for long service payment might not have been a valid application.  The function of Form 1 is to enable the employee toterminate his contract of employment without notice or payment in lieu under section 10(aa) of the Employment Ordinance, Cap. 57. Long service payment is payable when the employee terminates his contract in the circumstances specified in section 10(aa).  In this case, it was pleaded in her Revised Statement of Damages that the plaintiff last worked for the defendant in July 2013, which was almost 3 years before the issue of Form 1.  There would appear to be no subsisting contract of employment to be terminated by the plaintiff under section 10(aa), which otherwise might have qualified her for long service payment under section 31R of the Employment Ordinance, Cap. 57.

23.  The fact that the plaintiff had expressly rejected the sanctioned payment and had counter-offered the sum of $380,000 did not prevent her from subsequently filing a notice of acceptance of the sanctioned payment on 25 November 2016, as that notice of acceptance was filed within the permitted period of 28 days after the date of the sanctioned payment made on 3 November 2016.  Likewise, the fact that the plaintiff’s solicitors had initially indicated that they would sign a suitably amended consent summons to permit the defendant to withdraw the sanctioned payment, did not prevent he plaintiff from changing her mind and accepting the sanctioned payment on 25 November 2016.

The Proper Order to Make in the Present Case

24.  Order 22, r.10(2) provides that if there is subsisting an application to withdraw a sanctioned payment, the sanctioned payment may not be accepted unless the Court grants leave to accept it.  Order 22, r.10(3) provides that if the Court dismisses an application to withdraw, it may by order specify the period within which the sanctioned payment may be accepted.  The latter rule caters for the situation where the plaintiff has not filed a notice of acceptance after an application has been made to withdraw the sanctioned payment. The latter rule does not cover the present situation where the application to withdraw the sanctioned payment is followed by a notice of acceptance, filed within the prescribed time, of the sanctioned payment.  After I had allowed the appeal and made the orders set out in §4 above, I requested the parties to file further written submissions on the orders that I should make in this case to enable the plaintiff to accept the sanctioned payment and the orders that I should make in relation to the interest that has accrued on the sanctioned payment.

25.  I have considered the written submissions filed by the plaintiff. Although it was based on the UK rules, I have found the decision of the UK Court of Appeal in John Joseph Flynn v. Tracey Scougall [2004]EWCA Civ 873,that was referred to by the plaintiff, to be of some assistance. In that case, the defendant had made a payment into court and subsequently received an expert’s report that was favourable to the defence case. They then applied to diminish the amount they had paid into court. After receiving notice of the defendant’s application, the plaintiff gave notice on 25 March 2003, within the prescribed time, accepting the payment in.  The Court of Appeal upheld the judge’s decision to dismiss the defendant’s application to diminish the amount of the payment in and made orders that enabled the plaintiff to receive the total amount of the original payment that had been made into court, together with interest accruing on that amount from 25 March 2003.  In doing so, the Court of Appeal validated the notice of acceptance of payment in that had been served within the prescribed time.

26.  The defendant elected not to file written submissions and the parties, very sensibly, filed a consent summons agreeing terms, including the term that interest accrued on the sum of $63,000 after 25 November 2016 be paid to the plaintiff.  I make an order in terms of the consent summons, as amended by me, as follows:

(a)   leave granted to the plaintiff to accept the sanctioned payment of $63,000 made by the defendant in accordance with the plaintiff’s notice of acceptance of sanctioned payment filed herein on 25 November 2016;

(b)   there be payment out of court of the said $63,000 to the plaintiff through her solicitors, Messrs. Li & Lai;

(c)   the defendant shall pay the plaintiff’s costs of the action on the District Court scale to be taxed if not agreed;

(d)   interest accrued on the said $63,000 up to 25 November 2016 be paid to the defendant through its solicitors Messrs. Fairbairn Catley Low & Kong;

(e)   interest accrued on the said $63,000 accruing thereafter be paid to the plaintiff through her solicitors.