ALE THAK PRASAD v. TSANG CHIN KEUNG AND ANOTHER

HCPI 579/2012

[2021] HKCFI 1979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 579 OF 2012

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BETWEEN

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DECISION

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1.  It is a plain and clear case where indemnity costs and enhanced interest should apply pursuant to Order 22, rule 23 in light of the sanctioned payment made by the defendants in August 2015.

2.  After trial on the issue of liability, I dismissed the plaintiff’s action as he had failed to make out the case of negligent driving: see [2021] HKCFI 1006.  He would have done much better if he had accepted the sanctioned payment of $500,000 in 2015.  In light of the evidence before the court, the offer was indeed a very generous one. 

3.  I also take into account the wholly exaggerated claim on quantum put forward by the plaintiff in this action.  In the revised statement of damages filed in April 2017, the plaintiff claimed a total sum of about $34 million or alternatively a sum of about $13 million.  This is in sharp contrast with his own sanctioned offer of $900,000 made in June 2018.  The discrepancy in the figures really speaks for itself.  The genuineness of the quantum claimed is thus extremely doubtful.

4.  The plaintiff’s conduct in this action has also unnecessarily prolonged the proceedings.  He made an application to adduce neuropsychological expert evidence in 2017, which was dismissed by master: see HCPI 579/2012, 29 December 2017.  He then lodged an appeal which was only withdrawn very shortly before the appeal hearing before the PI judge.  By then, much time and costs had been spent on the unmeritorious application. 

5.  On the whole, the defendants were forced to continue to defend the action for more than 5½ years after the sanctioned payment was made.  Indemnity costs should apply to this period.

6.  As for the rate of the enhanced interest now sought, there is no exact science in determining the percentage.  The defendants ask for 10% above judgment rate.  The Director of Legal Aid, who would be liable to pay the plaintiff’s costs while he was on legal aid, counter-proposes 7% above judgment rate.  In my view, this is a case which warrants the maximum interest rate to apply, given the egregious character of the plaintiff’s conduct.

7.  At today’s hearing, the plaintiff, who would be personally liable for the defendants’ costs incurred while he was not on legal aid, opposed the application.  He has not filed any affirmation in opposition.  But I have heard his submissions.  In gist, he said that he is unable to pay any costs and previously he did not know that he would be liable to pay costs.  He reiterated at length that he was the victim in this case.

8.  Plainly, these are not proper reasons to oppose the defendants’ application on costs.

9.  In the circumstances, I make the following orders:

(1) The costs order nisi in the judgment handed down on 30 April 2021 be varied and replaced by the following:

(a) The plaintiff do pay the 1^st and 2^nd defendants’ costs of this action, including all costs reserved, up to and including 21 September 2015 on a party and party basis on the High Court Scale to be taxed if not agreed;

(b) The plaintiff do pay the 1^st and 2^nd defendants’ costs of this action after 21 September 2015, including all costs reserved, on an indemnity basis on the High Court Scale to be taxed if not agreed;

(c) The plaintiff do pay the 1^st and 2^nd defendants enhanced interest on costs and disbursements from 22 September 2015 to 30 April 2021 at half of the rate which is the sum of 10% p.a. plus judgment rate, and thereafter at judgment rate until payment of the same;

(d) The liability of the Director of Legal Aid to pay costs and interest to the defendants in this action is confined to the period between 14 April 2011 to 26 November 2018 for which the plaintiff was legally aided;

(2) The sanctioned payment of $500,000 paid into court by the 1^st and 2^nd defendants on 24 August 2015 together with interest accrued thereon, be paid out forthwith to the 1^st and 2^nd defendants through their solicitors, Messrs Mayer Brown;

(3) The plaintiff do pay the defendants’ costs of the defendants’ summonses on an indemnity basis to be taxed if not agreed;

(4) There be no order as to costs between the Director of Legal Aid and the defendants in this application;

(5) Retrospective leave be granted to the 1^st and 2^nd defendants to file the 3^rd Affirmation of Chan Yin Hang Helen dated 11 June 2021 and service be dispensed with;

(6) It be noted that this costs order does not affect the costs order of Master Leong dated 29 December 2017 and the costs order of Bharwaney J dated 29 June 2018.