KWOK SUI SHUM DOROTHY v. HUI LAM HO AND ANOTHERS

HCPI 375/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 375 OF 2001

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N O T E

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1. In this action claiming damages for personal injuries sustained as a consequence of a road traffic accident on which the Defendants' vehicle was driven into the rear of the vehicle in which the Plaintiff was travelling as a passenger, application was made for an interim payment on the 17 September 2001. Counsel who appeared throughout for the Plaintiff presented this application. The Defendants were represented by their solicitors.

2. The application was fully contested but at the conclusion of the hearing Mr Justice Suffiad made an order for an interim payment of HK$300,000.00.

3. On the 7 January 2002, the Pre-Trial Review was conducted by Mr Justice Suffiad. At that hearing the Plaintiff was represented by the same counsel and the Defendants by the same solicitor. Final directions for trial were given by the Judge including the fixed dates for trial of 9-11 July 2002. No application was made to the judge that he should not himself try the case on the basis that he had ordered an interim payment of damages. This itself is not surprising in view of the fact that interim payments are often ordered, usually by consent, by the judge who ultimately is to try the case. The lapse of time which usually occurs between that order and the trial is such that the trial judge is unlikely to have any recall of that fact. In any event it would not influence his judgment.

4. Accordingly on the 22 February 2002 the Court issued a notice to the parties informing them that the case would be tried before Mr Justice Suffiad on the 9 July 2002.

5. No application was made to the Court for another judge to be nominated to try the case by reason of Mr Justice Suffiad having made the said order.

6. In the event however Mr Justice Suffiad had to sit in the Court of Appeal on 9 July and the case was accordingly transferred to His Honour Judge Barnabas Fung by notice to the parties dated 5 July 2002.

7. The case was duly called on before His Honour Judge Fung sitting as a High Court Judge on 9 July 2002. The Plaintiff's counsel opened the case and referred to the interim payment clearly in ignorance of Order 29 rule 15. That was an inexplicable and wholly irrelevant reference. Furthermore the order relating to the interim payment of damages was in the bundle which had been agreed by the solicitors for both parties.

8. After the lunch adjournment counsel for the Defendants raised with Judge Fung the fact that the Plaintiff's counsel had opened the matter of the interim payment and the existence of the order in the Judge's trial bundle. The result was that the Defendant's counsel persuaded the Judge that he should not proceed with the trial and that it should be adjourned for trial before another judge. Furthermore he obtained an order that the Plaintiff pay the costs of an occasioned by the adjournment. The judge was quite unaware of the background of the matter.

9. This then was the situation when the papers came back before Mr Justice Suffiad and were then referred to me.

10. A review of the position made a number of matters crystal clear. The Defendants had never objected to the trial being fixed before Mr Justice Suffiad. More particularly the Defendant's solicitors had agreed the trial bundle in which the order for the interim payment of damages was included. It was likely, therefore, to be seen by the trial judge whoever he was.

11. The reference to the order in his opening was entirely the fault of the Plaintiffs' counsel. Any resultant order for costs was caused by his error. The Defendants having agreed to the inclusion of the order in the trial bundle, and never having asked for the order to be sealed in an envelope, or objected to Mr Justice Suffiad as the original trial judge, it was entirely inappropriate to seek an order for costs, or, arguably even seeking an adjournment in the first instance. The application for costs was a thoroughly bad point to take.

12. My concern on all these fronts led me to require the parties' legal representatives to appear before me. What was particularly unjust was that the Defendants should recover any costs from the Plaintiff himself, whose own counsel had created the problem.

13. Subsequent to the hearing before me on 2 August at which I inquired into a number of matters concerning the manner in which counsel and solicitors for the parties had dealt with the matter of the interim payment, His Honour Judge Fung directed the parties' legal representatives to attend before him with a view to reviewing the order for costs which had been made by him on 9 July. In fact on or before that date the lawyers concerned had reached an agreement whereby the order for costs was to be revoked on the basis that the legal representatives waived their fees and costs for the abortive hearing of 9 July 2002. This was both eminently sensible and a proper reassessment of the situation.

14. The case then came back for me for further directions on 2 September. The estimate of its length was increased to 4 days and it was fixed for trial on the 7 October 2002.

15. On the 30 September the Court sent out the usual notice to the parties' solicitors confirming the fixed date for trial and identifying the trial judge. Regrettably one of the counsel concerned took as upon himself to discuss some aspect of the case with the judge concerned (who did not then know that he was to be the trial judge). When the judge received the papers and read them he recalled the counsel concerned having mentioned the case to him. Quite properly he felt that it would not be appropriate for him to try the case. As a result of the accumulated errors of the lawyers for both parties, four judges (including myself) were now eliminated from being the trial judge.

16. Once again the papers came back before me in order to make the necessary arrangements for the trial date to be adhered to. The trial in fact commenced on the 7 October and was concluded on 16 October having lasted a little less than 5 1/2 days before the Hon Mr Justice Jackson.

17. Counsel and solicitors are required to consider and note the existence and implications of Order 29 rule 15. If objection is taken to the judge who makes the order for an interim payment of damages being the trial judge that objection must be taken promptly. Proper realistic estimates of the length of a trial are to be given. There is a clear long-standing duty on counsel and solicitors to notify the Court promptly if that estimate should be revised upwards or downwards. There may well be a liability for costs if there is failure in this regard. Counsel have a duty to acquaint themselves with all the pertinent facts and circumstances before applying an order for costs. Judges ought to feel confident that they can rely upon them in this regard. Finally counsel should exercise proper discretion and refrain from seeking to discuss any pending case with any member of the judiciary.