CHUNG HIU BUN v. YEUNG YIU SING AND ANOTHER

HCPI 123/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 123 OF 2010

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BETWEEN

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D E C I S I O N

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1.  On 14 July 2011, the plaintiff’s solicitors took out a summons for leave to adduce additional witness statements; for leave to file and serve within 7 days a Re-revised Statement of Damages as per draft attached; and for leave to the 1^st and 2^nd defendants to file and serve an Answer thereto within 28 days.

2.  The amendments raised a new case on quantum and the additional witness statements were served in support of this new case.  The proceedings arose out of a fatal traffic accident that resulted in the death of the Chung Chun Kong.  He was 18 when he died and he left as dependants, his father and mother and younger brother.  Prior to his death, he was employed as a security guard earning just under $7,000 per month. The original claim in quantum was assessed on the notional basis of his continued occupation as a security guard.

3.  There was a CLR on 10 September 2010.  An order for setting the case down for trial was obtained on 28 February 2011 and the case was set down shortly afterwards.  It is fixed to be heard in November this year.

4.  Subsequently to the case being set down, additional evidence came to light to the effect that the deceased intended to change occupation and to become a scaffolding worker in the construction industry.  The Revised Statement of Damages was further revised to claim higher damages for loss of dependency on the basis of the notional earnings of the deceased as a scaffolding worker.

5.  The defendants have consented to the reliefs sought in the plaintiff’s summons and I make an order in terms of paragraphs 1, 2 and 3 of the summons.

6.  However, there has been no agreement on the costs of the summons.  Mr K.W. Ng, for the plaintiff, contended that it was fortuitous that the additional evidence had come to light, that there was no fault on the part of his client, and that the proper order I should make is an order for costs in the cause.

7.  I disagree.  It is not a question of blame but a question of due process and procedure.  Very often parties ask for leave to adduce supplemental or additional witness statements, and leave to amend the pleadings at CLRs, CMCs, and PTRs, and very often the costs order is costs in the cause because the costs were incurred as part of the trial preparation and case management process.  But when one reaches a stage where the case is set down for trial and there is a specific court order made, as was the case here, that no further applications are to be made, except to the PI judge, one already reaches a stage where the general trial preparation and case management process has been completed, and when everybody is ready for trial.  If, after setting down, a party seeks to present new evidence and a new case, very often the other party will oppose the application.  But in this case, the defendants could see that the witness statements that were sought to be adduced and the amendments that were sought were very relevant to the claim and so they very sensibly consented to the plaintiff’s summons.

8.  When one has reached the stage where the case has been set down for trial and one party seeks indulgence from the court for leave to adduce additional evidence, then that party should pay for that indulgence and not ask for the costs to be costs in the cause.  Of course, the plaintiff is not to blame because this evidence was discovered fortuitously.  But why should the defendants pay for the costs of this exercise if they lose the case at the end of the day?  They are not to blame either.  If the plaintiff asks for costs in the cause and the plaintiff succeeds at trial, the plaintiff is making the defendants to pay for the indulgence that he seeks.

9.  In the course of case management, the court has moved away from the strict doctrine that anybody who asks for anything has to pay costs.  The usual order is costs in the cause because it is all part and parcel of trial preparation and case management.  But there comes a point in time, after the case is set down, when the party seeking an indulgence has to pay the costs of and occasioned by his application.  This is such a case.

10.  I order that the costs of and occasioned by the application of today’s hearing to be paid by the plaintiff to the 1^st and 2^nd defendants, in any event, summarily assessed in the total sum of $3,500 for each defendant. 

11.  I hesitate whether I should order legal aid taxation for the plaintiff’s own costs, including the costs of today’s hearing, as such costs will come out from damages.  I think parties should quickly come to a realisation that they should not be so positional and so stuck on small, small matters, such as the present dispute on costs, and take a much broader view.  Legal representatives must understand the procedural rules, because, if they falter, their client suffers, particularly if their client is legally aided, as the wasted costs will come out of his or her damages. 

12.  With reluctance, I order that the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations but I give warning that, in future, solicitors and counsel acting on legal aid assignments who waste costs on frivolous applications, or who oppose meritorious applications on frivolous grounds, will not so easily get an order from court that the legally aided client’s own costs be taxed pursuant to the Legal Aid Regulations.