NG KIN YUEN, the administrator of NG OI HA, deceased v. LAI CHUN HO AND ANOTHER

HCPI 390/2018

[2024] HKCFI 2274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 390 OF 2018

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DECISION

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1.  This court handed down judgment on 18 June 2024 (“Judgment”) assessing damages payable by the Defendants to the Plaintiff in the sum of HK$720,273.83 plus interest.

2.  This court made a costs order nisi that the Defendants do pay the costs of the action to the Plaintiff, to be taxed if not agreed.  Any party who seeks any variation should lodge their submissions within 14 days from the date hereof, response within 7 days upon receipt, and reply within 7 days thereafter. 

3.  By summons dated 2 July 2024 made under O 22 r 24, O 42 r 5B(6) of the Rules of the High Court (“RHC”), section 49 of the High  Court Ordinance and inherent jurisdiction (“Variation Summons”), the Plaintiff applies for the variations as follows:

(a)  Enhancing the interest judgment sums

i.  Interest on the award for PSLA in the sum of HK$60,000 will run:

a.  at 2% per annum from the date of the Writ (12 April 2018) until 11 May 2022; and

b.  at 2% above judgment rate, namely 10.875% (8.875% +2%) from 12 May 2022 to the date of Judgment on 18 June 2024. 

ii.  Interest on damages for bereavement in the sum of HK$150,000 will run:

a.  at the judgment rate, namely 8.875%, from the date of death (26 April 2015) until 11 May 2022; and

b.  at 2% above judgment rate, namely 10.875% (8.875% + 2%) from 12 May 2022 to the date of Judgment on 18 June 2024.

iii.  Interest on funeral expenses in the sum of HK$86,400 will run:

a.  at the judgment rate namely 8.875%, from the date of death (26 April 2015) until 11 May 2022; and

b.  at 2% above judgment rate, namely 10.875% (8.875% + 2%) from 12 May 2022 to the date of Judgment on 18 June 2024.

iv.  Interest on damages on pre-trial loss of dependency in the sums of HK$49,905 and HK$80,000 will run:

a.  at half the judgment rate from the date of the Writ (12 April 2018) until 11 May 2022; and

b.  at 2% above judgment rate, namely 10.875% (8.875% + 2%) from 12 May 2022 to the date of Judgment on 18 June 2024.

(b)  Costs order nisi

i.  The 1st and 2nd Defendants do pay to the Plaintiff the entire costs of the action with certificate for Counsel (including all costs reserved, if any) on an indemnity basis, to be taxed if not agreed;

ii.  The 1st and 2nd Defendants do pay interest on costs of the Plaintiff incurred after 11 May 2022 at a rate of 5.9% (rounded down from 5.9375%) [3% + 8.875% (prevailing judgment rate)]/2 per annum from 12 May 2022 until full payment.

(c)  Costs of and occasioned by this application:

i.  be paid by the 1st and 2nd Defendants to the Plaintiff with certificate for Counsel on an indemnity basis, to be taxed if not agreed; and

ii.  carry the interest rate of 5.9% (rounded down from 5.9375%) = [3% + 8.875% (prevailing judgment rate)]/2 per annum from the date of this Summons until full payment of the same. 

4.  Mr Shum made written submissions on behalf of the Plaintiff filed on 2 July 2024.  Mr Cheung of Messrs YL Yeung & Co made written submissions on behalf of the 2nd Defendant filed on 23 July 2024. 

ENHANCING THE INTEREST JUDGMENT SUMS AND INDEMNITY COSTS

5.  I set out O 22 r 24 below:

“24. Costs and other consequences where plaintiff does better than he proposed in his sanctioned offer (O. 22, r. 24)

(1) This rule applies where—

(a) a defendant is held liable for more than the proposals contained in a plaintiff’s sanctioned offer; or

(b) the judgment against a defendant is more advantageous to the plaintiff than the proposals contained in a plaintiff’s sanctioned offer.

(2) The Court may order interest on the whole or part of any sum of money (excluding interest) awarded to the plaintiff at a rate not exceeding 10% above judgment rate for some or all of the period after the latest date on which the defendant could have accepted the offer without requiring the leave of the Court.

(3) The Court may also order that the plaintiff is entitled to—

(a) his costs on the indemnity basis after the latest date on which the defendant could have accepted the offer without requiring the leave of the Court; and

(b) interest on those costs at a rate not exceeding 10% above judgment rate.

(4) Where this rule applies, the Court shall make the orders referred to in paragraphs (2) and (3) unless it considers it unjust to do so.

(5) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3), the Court shall take into account all the circumstances of the case including—

(a) the terms of any sanctioned offer;

(b) the stage in the proceedings at which any sanctioned offer was made;

(c) the information available to the parties at the time when the sanctioned offer was made; and

(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated.

(6) The power of the Court under this rule is in addition to any other power it may have to award interest.”

6.  A number of sanctioned offers under O 22 r 24 were made by the Plaintiff as summarised below:

Offer amount HK$	Date of offer	Offeree(s)	Last date, on which the Offer could be accepted without leave from the Court
890,000 (inclusive of interest)	4 September 2020	1st, 2nd, and 3rd Defendant	2 October 2020
850,000 (inclusive of interest)	9 March 2021	1st, 2nd, and 3rd Defendant	6 April 2021
700,000 (inclusive of interest)	13 April 2022	1st and 2nd Defendant	11 May 2022
300,000 (inclusive of interest)	14 September 2022	1st Defendant	12 October 2022
300,000 (inclusive of interest)	1st March 2023	1st Defendant	29 March 2023
300,000 (inclusive of interest)	29 March 2023	1st Defendant	26 April 2023

7.  The amount awarded to the Plaintiff in the Judgment of HK$720,273.83 plus interest exceeds the sanctioned offer of HK$700,000 inclusive of interest.  A calculation of interest on the amounts awarded to the Plaintiff is HK$267,100.24 (rounded up).  The Judgment Sum including interest is HK$987,374.07.  O 22 r 24 applies as (a) the Defendants are held liable for more than the proposal contained in the Plaintiff’s sanctioned offer; or (b) the Judgment against the Defendants is more advantageous to the Plaintiff than the proposals contained in the Plaintiff’s sanctioned offer. 

8.  Where O 22 r 24 applies, the court shall make such orders in respect of enhanced interest and indemnity costs unless it considers it unjust to do so in the circumstances of the case including those various factors expressly set out in the rules. 

9.  The onus is on the Defendants to show that in view of all the circumstances of the case, including the factors in O 22 r 24(5) of the RHC, it is unjust to make the orders in O 22 r 24(2)-(3) of the RHC. 

10.  I ordered and directed on 9 July 2024 that the Defendants file and serve any affirmation in opposition to the Plaintiff’s Variation Summons and submissions within 14 days.  I did not receive any submissions from the 1st Defendant.  Submissions were filed by the 2nd Defendant.  According to the 2nd Defendant’s submissions dated 23 July 2024, the 2nd Defendant does not contest the Plaintiff’s application save for the costs of the Variation Summons. 

11.  I have not been referred to any evidence that the Defendants had asked to be provided with any information which they needed in order to be able to assess whether or not to accept the sanctioned offer made on 13 April 2022 which expired on 11 May 2022, but were refused such information. 

12.  The sanctioned offer dated 13 April 2022 was made in good time before the assessment of damages hearing, with ample time given to the Defendants to consider its terms, and reasonable opportunity to avoid incurring the costs of the assessment of damages hearing. 

13.  Accordingly, I make an order in terms of paragraphs 1 and 2 of the Variation Summons. 

COSTS OF THE APPLICATION AND ENHANCED INTEREST

14.  Regarding the costs of and occasioned by the Variation Summons, in Ryder Industries Ltd (formerly Saitek Ltd) v Timely Electronics Co Ltd & Anor [2013] 6 HKC 584, Recorder Anthony Houghton, SC accepted that entitlement to indemnity costs of the application to vary the order nisi arises since the Court awarded the costs of the trial on the same basis.  I also note that in Maysun Engineering Co Ltd v International Education and Academic Exchanges Foundation Co Ltd [2011] 3 HKC 65 per Mimmie Chan DJ and Lau Koon Loi v Wong Wai Sing and Anor (unreported judgment of Suffiad J dated 15 August 2011; HCPI445/2007), costs on an indemnity basis were ordered for the variation application. 

15.  Based on the above authorities, I accept the Plaintiff’s submissions that if the Defendants had accepted the generous sanctioned offers, the trial would not be necessary and as a matter of logic, the present application would not be necessary. Accordingly I order that the costs of and occasioned by the Variation Summons be paid by the 1st and 2nd Defendants to the Plaintiff with certificate for Counsel on an indemnity basis, to be taxed if not agreed. 

16.  Regarding the rate of enhanced interest on the costs of the application and the duration of such interest, the court may provide post-judgment interest at an enhanced rate on costs: Better Marine International Ltd v Zhong Shan Company Ltd (unreported judgment of MK Liu DHCJ) at §§36-38; Maysun Engineering Co Ltd per Mimmie Chan DJ (as she then was) at §§ 25-27; Union Glory Finance Inc v Merrill Lynch International Bank Limited [2016] HKCFI 2096 per Cooney DHCJ at §§39-40. 

17.  In Better Marine International Ltd., the court ordered that the enhanced interest rate on costs applied to the costs of the variation application and that such enhanced interest on the costs of the variation application was to run until payment of the same. 

18.  I am satisfied that there should be continuation of such enhanced interest rate on the costs of the variation application until full payment and accordingly so order. 

DISPOSITION

19.  I make an order in terms of the Plaintiff’s Variation Summons. 

20.  It remains for me to thank Mr Shum and Mr Cheung for their assistance provided to the court.