BUSHRA BIBI AND OTHERS v. METHOD BUILDING & ENGINEERING WORKS LIMITED (in liquidation) AND OTHERS

HCPI 301/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 301 OF 2012

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D E C I S I O N

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1. In my decision in this matter on 6 March 2015, I had indicated that the only outstanding matter on costs was the costs incurred by Madam Calinog on the issue of liability in HCPI 301/2012. There were 2 aspects of these costs to be dealt with: the pre-trial costs and the costs of the attendance by Mr Burke at the one day trial on liability that took place on 27 March 2014. The 1^st and 2^nd defendants have agreed to pay the costs of the former to be taxed on a common fund basis provided that there was no duplication of the work done by the solicitors of Madam Bibi. They do not agree to pay the latter costs and relied on §42 of my decision handed down in this case on 16 April 2014 in support of their stance. Mr Burke responded to those submissions by his submissions dated 4 November 2014[1], in the course of oral submissions at the hearing of the interim payment application on 16 December 2014[2], and by his letter dated 8 January 2015[3].

2. On 6 March 2015, I directed the solicitors for the 1^st and 2^nd defendants to reply in writing to these submissions within 14 days’ of the receipt by them of the transcript of the hearing on 16 December 2014, so as to enable me to deal with this outstanding matter properly. This they did on 16 March 2015.  After perusing the same, I directed Mr Burke to identify those parts of the transcripts of the hearings in this case which recorded that I had invited him to participate on the trial on liability. This he did on 26 March 2015.

3. Let me deal with the non controversial part of the outstanding costs on liability.  I order the 1^st and 2^nd defendants to pay the pre-trial costs incurred by Madam Calinog on the issue of liability in HCPI 301/2012, to be taxed on a common fund basis, provided that there was no unnecessary duplication of the work that had been performed by the solicitors of Madam Bibi.  Clearly, the perusal of documents relating to the issue of liability by Mr Burke and by the solicitors of Madam Bibi cannot be said to be unnecessary duplication of work.  Examples of unnecessary duplication of work would include both sets of solicitors engaging separate experts on liability or both sets of solicitors taking witness statements from the same persons.  The taxing master would be well able to disallow the costs incurred by Mr Burke that fall within this category.

4. So far as the costs of the attendance by Mr Burke at the one day trial on liability are concerned, I am guided by my observations in §42 of my decision handed down in this case on 16 April 2014 where I said:

“42. The grant of the conduct to one group of dependants does not prevent the other group from participating in the proceedings by offering advice on how the trial on liability should be conducted. If the defendant is eventually adjudged liable, the costs awarded to the plaintiffs must include all necessary or proper costs incurred to prosecute the claim on liability, even if they were incurred by 2 firms of solicitors, provided, of course, that there was no duplication of the work by the 2 firms of solicitors. HCPI 262/2012 & HCPI 301/2012 are cases in point in which, although Messrs Massie & Clement had the conduct of the trial on liability, specific discovery applications made by Messrs Burke & Co. resulted in the production of very relevant documents on the issue of liability. However, in the absence of very good reason shown, the defendant should not be faced with the cost of the attendance of 2 different solicitors on the trial of liability. The rival dependant who does not have the right to conduct the trial on liability may instruct his solicitor to attend the trial on liability on a watching brief but, in the absence of very good reason shown, he may not recover those costs from the unsuccessful defendant: the right of access to court does not include a right to be paid one’s legal costs incurred in the exercise of that right of access.”

5. The 1^st and 2^nd defendants rightly rely on the above in support of their submissions that they ought not to be ordered to pay costs of 2 sets of solicitors at the trial on liability, that no good reason has been shown by Mr Burke why they ought to do so, and that the invitation of the court to Mr Burke to attend the trial on liability on a watching brief does not constitute good reason.

6. The latter was a reference to the exchange between the court and the parties’ solicitors that took place at a directions hearing on 21 January 2014 and which I set out below:

“COURT: Yes, well, I think, as far as liability is concerned, Mr Clement will have the conduct of the case on liability with Mr Clough.

MR BURKE: Indeed.

COURT: And obviously, he would be extremely grateful for the assistance you have rendered. And you are most welcome to be present on a watching brief and to render such further assistance as you wish to.

MR BURKE: Indeed. Well, it may be that...

COURT: You do understand that there are costs implications here, Mr Burke, which I think I will need to deal with as part and parcel of the guidance I give, because if the section says only one action, the defendants may not be liable to pay two sets of solicitors on liability.

MR BURKE: Well, this is a problem that has...

COURT: You’ll have to deal with the problem.

MR BURKE: ...run throughout the case and has never been properly addressed.

COURT: We’ll have to address that.

MR BURKE: It may be that...

COURT: But bear that in mind in terms of...

MR BURKE: ...Mr Clough will, with the discovery which will be forthcoming, may like to reconsider my suggestions about certain pleadings in the statement of claim. Again, I’d appended my letter...

COURT: And the pleadings that you suggest should be included?

MR BURKE: Well, I have raised issues. That’s my letter dated 4 March, and again, that was appended to my letter to your Lordship’s clerk.

COURT: Yes, can I just identify and have the -- are the defendants aware of the averments you think should be included?

MR BURKE:  Well, they’ve now been given a copy of that.”

7. It must be appreciated that the guidance provided by my decision of 16 April 2014 came after the trial on liability which took place on 27 March 2014.  Nevertheless, I had made it clear to Mr Burke at the hearing on 21 January 2014 that he must bear in mind the costs implications of his attendance at the trial on liability on a watching brief on behalf of Madam Calinog, notwithstanding my invitation to do so, because if the Fatal Accidents Ordinance only permitted one action to be brought, the defendants might not be liable to pay the costs of 2 sets of solicitors at the trial on liability.  What I said on 21 January 2014 is consistent with the guidance I gave on 16 April 2014.  I agree with the submissions of the 1^st and 2^nd defendants that the invitation I extended on 21 January 2014 was not a very good reason to support an order that they pay the costs of Mr Burke’s attendance on a watching brief at the trial on liability.

8. Is there other very good reason why I should make the order sought in favour of Madam Calinog?

9. Mr Burke did not take an active part in the trial on liability.  He attended on a watching brief.  But he did provide assistance to Mr Clough, counsel for Madam Bibi, at the trial on liability.  It is clear to me that the substantial part of the pre-trial preparation of the case on liability had been done by Mr Burke[4], not by the solicitors of Madam Bibi, as evidenced by his application for specific discovery of documents relevant to the issue of liability on 21 January 2014, and that he was more familiar with the case and better able to provide assistance to counsel at the trial on liability than the solicitors for Madam Bibi.  

10. I had directed on 21 January 2014 that solicitors for Madam Bibi ought to have the conduct of the trial on liability, as Letters of Administration had been granted to her, and that Mr Burke could attend on a watching brief.  That trial took place on 27 March 2014 before the guidance I had provided in my decision on 16 April 2014.

11. In the exceptional circumstances of this case, I think the assistance rendered by Mr Burke and the greater interest of Madam Calinog in the outcome of the trial on liability, as attested by the apportionment of a substantial part of the agreed damages in her favour[5], amount to very good reason why I should order the 1^st and 2^nd defendants to pay the costs of Mr Burke attending the trial on liability on a watching brief on behalf of Madam Calinog.   

12. After the guidance I gave on 16 April 2014, I very much doubt that the same ground can be invoked in future by solicitors acting for dependants who have not been given the conduct of the trial on liability and who also attend the trial on liability on watching brief basis. In future, the dependant who has the majority stake in the litigation is likely to be given conduct of the trial on liability[6].

13. I order the 1^st and 2^nd defendants to pay to Madam Calinog the costs of Mr Burke attending the trial on liability on a watching brief, including the costs of this application, and further order that those costs be taxed on a party and party basis.  I also direct that Madam Calinog’s own costs be taxed pursuant to the Legal Aid Regulations.