MALLA SHER BAHADUR v. PACIFIC CROWN ENGINEERING LTD AND ANOTHER

HCPI 942/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 942 OF 2006

----------------------

----------------------

----------------------

D E C I S I O N

----------------------

Application

1. This is an application by the Plaintiff against his former solicitors (“W&A”) for costs wasted.  It was said that W&A had failed to join the 2^nd Defendant (“Bauer”) when the proceedings were commenced.

Background

2. Paragraphs 3 to 7 of the Decision herein handed down by Master Kwan on 18 June 2007 are repeated for setting out the background of the proceedings.

“Background

3.   The plaintiff is Nepalese.  He was employed by Pacific Crown as a welder on 17 September 2004 when he was injured in an accident.  At the time, he was helping a German supervisor Mr Heinz and a crane operator Mr Sum to stack some large steel pipes called “silos”.  One of the silos rolled down and injured the plaintiff’s right leg.

4.   On 3 March 2006 the plaintiff obtained legal aid to pursue his claim.  He was assigned a firm of solicitors and a counsel, Messrs Weir & Associates (“W&A”) and assigned a Counsel Mr John Wright.

5.   On 10 October 2006, W&A sent instructions to counsel.  It was stated in those instructions that the claim was intended to be brought against two defendants, Pacific Crown and Bauer, and that counsel was also to advise on “the parties to the suit”.

6.   Mr Wright advised on or about 27 October 2006 that it was only necessary to pursue against Pacific Crown because “there was no evidence that Bauer Hong Kong Ltd had any physical presence on the construction site where the plaintiff’s injury occurred.”  The Writ was issued from the High Court on 1 November 2006, suing Pacific Crown only.  On or about 12 December 2006 Mr Wright submitted his “Advice on Parties and Venue” and repeated his advice against joining Bauer in the action.  On or about 27 December 2006, Pacific Crown issued a Third Party Notice against Bauer.

7.   The present solicitors for the plaintiff filed the Notice of change of solicitors on 22 February 2007.  They filed the subject Summons on 15 March 2007.”

3. To recap the matter briefly, the Plaintiff was injured in an industrial accident.  He obtained legal aid to pursue his claim for personal injuries.  W&A and Counsel were assigned.  On 1 November 2006, upon Counsel’s advice, W&A decided to sue the 1^st Defendant (“Pacific Crown”) only, but not Bauer.  However, Pacific Crown later issued third party notice against Bauer.

4. Then, when Messrs. Chan & Tsui (“C&T”) took up the matter on 22 February 2007, it issued a summons to join Bauer as 2^nd Defendant.  It further sought such costs against Pacific Crown, or alternatively W&A personally.

5. With consensus from the parties, Master Kwan allowed the joinder application.  Having heard the parties’ argument later, she dismissed the application for costs against Pacific Crown.  The learned Master took the view that Pacific Crown was not under a duty to assist the Plaintiff.  Further, there was no evidence that Pacific Crown had misled W&A.

6. Having decided on it, Master Kwan further directed that any Master could hear the alternative costs application against W&A, on the first available date.

7. Such costs application was not pursued until the Plaintiff eventually accepted a total sum of $600,000 on 2 September 2008 to settle his action.  On 5 November 2008, the present solicitor for the Plaintiff, Messrs. Lee & So (“L&S”) issued a new summons to pursue the costs application against W&A. 

Decision and reasons

8. The parties appeared before me on 31 December 2008 for the substantive argument of the matter.  Mr. C.F. Ho of L&S acted for the Plaintiff and Ms. W.Y. Chung represented W&A.  Upon consideration of the evidence authorities and submissions from them, I have decided to dismiss the Plaintiff’s application.  My reasons appear in below.

(a)   To ask the former solicitors to bear costs wasted, Mr. Ho needs to establish negligence on W&A.  Duty and damages were not disputed, but I am of the view that breach as well as causation has not been established.

(b) Mr. Ho put forward 3 complaints against W&A.  It failed to:

(i)  take proper instructions from the Plaintiff;

(ii)    continue with proper investigation as to the identity of Bauer; and

(iii)  heed to the advice of Counsel and exercise its mind in taking instructions from the Plaintiff and make proper investigation.

(c)  However, one should never forget that W&A was at all times aware of the possibility of involvement of Bauer.  It took instructions from the Plaintiff.  It enquired the matter from Pacific Crown.  It drafted the Statement of Claim with Bauer named as 2^nd Defendant.  It raised such the specific question with Counsel as to whether Bauer should be joined.  Counsel carefully considered the matter and advised negative for the time being.  W&A adopted it and, for saving time and costs, decided to commence the proceedings first and see how the matter would develop.  The same question arouse when Pacific Crown issued the third party notice against Bauer. W&A discussed the matter with Counsel again.  After consideration, they decided that the Plaintiff should not get involve into the dispute between Pacific Crown and Bauer.  Hence, one can see that it has always been a considered decision on the part of W&A as well as Counsel.

(d) But, then, is such considered decision right or wrong?  In my view, this question cannot be answered because the proceedings herein were settled.  The question of liability has never been determined.  Was/Were Pacific Crown and/or Bauer the employer of the Plaintiff, principal contractor and/ or occupier?  Maybe, one could argue that the settlement would also have been reached even if Pacific Crown and Bauer were involved in the capacity as defendant and third party herein.

Costs

9. Costs usually follow the event.  However, having taken into account the fact that some time was spent unnecessarily by Ms. Chung in her skeletons and hearing before me in arguing the interpretation of Master Kwan’s order and some procedural matters, I have decided to order that the Plaintiff shall bear half of the costs of W&A for the hearing on 31 December 2008, to be taxed if not agreed.  The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.