LO SIU WA v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD AND ANOTHER

HCA 393/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 393 OF 2014

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ACTION NO 799 OF 2014

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(HEARD TOGETHER)

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J U D G M E N T

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1.  On 19 March 2007 the plaintiff was, in the course of his employment, using a circular saw doing carpentry work as part of renovations to shop premises in Tsuen Wan, New Territories. An accident occurred which resulted in fractured fingers, severed tendons and open wounds to his hands. At the time his employer was an interior design company called Nuovo Design Limited (“Nuovo”). Nuovo had engaged him four days earlier, on 15 March, to carry out carpentry works at the shop site. The plaintiff was a carpenter by trade. He had previously been regularly engaged by various employers to carry out carpentry work on numerous and various renovation projects in Hong Kong.

2.  On this particular occasion he was being paid $800 a day but because he had only recently been engaged there was no documentation relating to his employment. He had not worked for Nuovo before.  In a statutory declaration to the Labour Department dated 22 June 2007 Nuovo’s project manager, Mr Lee Chun Fai, explained that it was the company’s practice to take on carpenters on a casual basis and, as with this plaintiff, no contract of employment was signed.  He explained that the plaintiff was treated as a self‑employed person.

3.  Nuovo’s subsequent conduct with regard to the plaintiff and his accident was extremely uncooperative.  They failed to report the accident to the Labour Department. They failed to pay any sick leave wages (certified from 19 March 2007 to 31 May 2008).  They failed to attend or participate in the plaintiff’s Employment Compensation claim heard on 14 August, 2009 (assessed at $545,488.33 plus interest).  They failed to pay the EC Award therefore, through his solicitors, the plaintiff caused Nuovo to be wound up thereby incurring further costs.  The winding‑up order was made on 16 February 2011.  Finally, the plaintiff also made a claim for common law damages under HCPI 84/2010.  On 12 April 2012, he was awarded damages in an uncontested assessment hearing in the sum of $3,552,928.67 (net of the EC Award) plus interest.

THESE PROCEEDINGS

4.  These proceedings arise because Nuovo had, in 2004, taken out an insurance policy with the 2^nd defendant (AXA) called an “Office Pak” policy.  The plaintiff sought payment of his claim through this policy but AXA has declined to pay stating from the outset that the policy did not cover this plaintiff and/or this accident.  In short, the plaintiff, through his solicitors, being informed that he had not been insured in his brief employment with Nuovo commenced proceedings against the 1^st defendant (HCA 393/2014) (the Board), “the last resort” for payment of compensation for personal injuries sustained at work in such circumstances.

5.  The Board takes the view that the Office Pak policy did cover the plaintiff’s accident and has declined payment and has insisted that AXA also be sued (HCA 799/2014).  The two actions have been consolidated.

6.  The issue is which defendant should compensate the plaintiff and pay him his unchallenged award for an injury sustained nearly nine years ago.  All parties are agreed that the issue is substantially resolved by the answer to a single question namely, did the Office Pak policy cover the plaintiff at the time of his accident?

THE ISSUES

7.  Although the outcome of these proceedings depends, almost entirely, on the answer to a single question the parties have helpfully formulated and agreed five issues on liability as follows:

(1) Whether the policy issued by the 2^nd defendant to Nuovo with the policy number 681-2736131 was a policy issued for the purposes of Part IV of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) in force at the time of the accident in relation to the plaintiff.

(2) Whether the 2^nd defendant is statutorily liable to pay the plaintiff the EC Award, the PI Award and costs by virtue of sections 42 to 44 of the ECO.

(3) Whether the plaintiff has taken reasonable proceedings to recover payment of the compensation and damages for which the employer was liable as required by sections 16(3) and 20A(3) of the Employees’ Compensation Assistance Ordinance, Cap 365 (“ECAO”).

(4) Whether it was reasonable in the circumstances, having regard to the likely costs of such proceedings, the resources available to the plaintiff and the award likely to be recovered from, for the plaintiff not to commence proceedings against the 2^nd defendant before applying for relief payment under sections 16 and 20A of the ECAO.

(5) Whether the 1^st defendant has correctly or wrongly rejected the plaintiff’s application for payment and relief payment under sections 16 and 20A of the ECAO.

Issues 1 and 2

8.  Issues 1 and 2 may be considered together.  Sections 43(1) and 44 of the ECO provide that:

Section 43(1):

“(1) Subject to this section, where in relation to an employee there is in force a policy of insurance issued for the purposes of this Part and the employer of the employee becomes liable to pay any sum under this Ordinance or independently of this Ordinance in respect of an injury to the employee arising out of and in the course of his employment, such sum shall forthwith become due and payable by the insurer, including any sum payable in respect of interest and costs, notwithstanding anything to the contrary in the policy of insurance.”

Section 44:

“(1) Every policy of insurance issued for the purposes of this Part shall be deemed to provide that any employee or other person having a claim against the person insured in respect of the liability in regard to which such policy was issued shall, subject to section 42, be entitled to recover in his own name, as though he were a party to the policy, directly from the insurer any amount which he would have been entitled to recover from the person insured.”

9.  The first and only relevant question arising from these provisions is — was there in force at the material time a policy of insurance issued for the purpose of Part IV of the ordinance in relation to the plaintiff?  Plainly there was a policy in force which had been issued for the purpose of Part IV.  However, whether it was “in relation to the Plaintiff” is the matter in dispute.

10.  The answer depends on the terms of the contract of insurance.  The words in the policy must be carefully construed and interpreted.  It is necessary therefore to set out in some detail what the policy actually said.  Before doing so, important principles of construction are noted.  Mr Anthony Ismail, counsel for AXA, has helpfully reminded the court of the words of Sir Anthony Mason NPJ in New World Harbourview Hotel v ACE Insurance Ltd (2012) 15 HKCFAR:

“The interpretation which should be adopted in the case of an insurance contract, as with other commercial contracts, is that which gives effect to the context, not only of the particular provision but of the contract as a whole, consistently with the sense and purpose of the provision. In arriving at the true interpretation, the court will read the words and expressions of the contract as ordinary commercial people would understand them in their context, preferring in appropriate cases that understanding to any technical legal meaning that the words or expressions may otherwise have.”

Also, Lord Hoffmann NPJ in Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR:

“… The construction of a document is not a game with words. It is an attempt to discover what a reasonable person would have understood the parties to mean. And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve.

…

If the ordinary meaning of the words makes sense in relation to the rest of the document and the factual background, then the court will give effect to that language, even though the consequences may appear hard for one side or the other.

…

But the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean. Therefore, if in spite of linguistic problems the meaning is clear, it is that meaning which must prevail.”

11.  Finally Ma CJ in Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR:

“What emerges from these cases – and other authorities on contractual interpretation – is the overall importance of context when construing contractual terms. The statements of principle in Investors Compensation Schemeand inJumbo Kingrefer time and again to the relevant background against which the relevant contract and contractual terms must be viewed. It is in my view not particularly helpful in most cases to refer to the ‘ordinary and natural meaning’ of words because, as very often experience tells us, there can be much debate over exactly what is the ordinary or natural meaning of words. The surer guide to interpretation is context.”

12.  In the present case, as already stated, the Board and AXA fundamentally disagree about whether the policy covers the plaintiff.  The Board has been represented at trial by Mr Horace Wong SC leading Mr Clark Wang. Mr Ismail’s submission (for AXA) that this policy was never intended to, and does not, cover the plaintiff has also, consistently, been the position taken by the plaintiff, represented by Ms Julia Lau.

13.  Because the policy, in a case such as this, must be considered as a whole it is, unfortunately, necessary to recite all those parts of the policy which may be relevant to issues of interpretation and therefore the answer to the ultimate question. 

The policy

14.  AXA called the policy an “Office Pak” policy.  The schedule provided as follows:

“Premises:	Unit 9B, Lockhart Centre, 301‑307 Lockhart Road,
	Wanchai, Hong Kong
Business:	Interior Design
Period of Insurance:	from 23rd November 2006 to
	22nd November 2007 (both dates
	inclusive

Risk No:		1 Officepak
Section 1	–	Contents
Section 2	–	Business Interruption
Section 3	–	Money
Section 4	–	Public Liability

Limit of Indemnity in respect of any one accident and any one

period of insurance

$2,500,000

Plant and Machinery: N/A

Section 5

–

Employees’ Compensation

Estimated Total

Occupation	Number	Earnings HKD
Creative Director	1	325,000
Creative Director (Overseas)	1	260,000
Designer (Overseas)	1	208,000
Designer	2	377,000
Clerk (indoor)	1	130,000
Co-ordinator	1	93,600
	7	1,393,600

It is hereby declared and agreed that items 2‑ 3 & 6 of Section 5 – Employees’ Compensation under this Policy is extended to cover the employee temporarily working overseas include USA and Canada.

For Agreed USA/Canada Exposure, it is hereby declared and agreed that as from 6^th October 1998

1. The cover by this policy is extended to indemnify the insured in respect of the additional liabilities which the Employees’ Compensation (Amendment) Ordinance, 1998 requires to be insured.

2. Under the Third paragraph of the policy relating to costs and expenses incurred with its written consent, the company’s liability in respect of any one accident or series of accident arising out of one cause shall be limited to HK$500,000.

Subject otherwise to the jurisdiction clause and the other terms of this policy.

The occupation description under this policy should be read as:

Item 1: Creative Director

Item 2: Creative Director (Overseas)

Item 3: Designer (Overseas)

Item 4: Designer

Item 5: Clerk (Indoor)

Item 6: Co-ordinator

Business: Office (Interior Design)”

15.  The following terms and definitions are relevant:

“Section 1 – OFFICE CONTENTS

Scope of Cover

The Company will indemnify the Insured against loss of or damage to the Contents within the Premises described in the Schedule as the result of any Accident unless otherwise excluded by this Policy

Provided that the liability of the Company shall not exceed the Sum Insured expressed in the Schedule

Definition

‘Contents’ means:

(1) Equipment in office or clinic or surgery belonging to the Insured or for which the Insured is responsible;

(2) Landlord’s fixtures and fittings and all fixed glass and mirrors for which the Insured is responsible;

(3) Tenant’s improvements decorations and sample goods.

‘Premises’ means the premises as specified in the Schedule and is used solely as an office clinic or surgery without any manufacturing work. The building in which the Premises is situated must be built of concrete brick stone or incombustible materials.

‘Accident’ means a sudden unforeseen and fortuitous event that happens entirely beyond the control of the Insured, other than exclude by the Policy, which results in direct physical loss of or damage to the insured Contents.

Section 5 – EMPLOYEE’S COMPENSATION

Scope of Cover

If any Employee in the Insured’s immediate employ shall sustain bodily injury or death by Accident or Disease occurring during the Period of Insurance within the Geographical Area and arising out of and in the course of employment by the Insured in the Business.

Definitions

For the purpose of this Section:

(a) ‘Accident’ means an accident or a series of accidents arising out of one event;

(b) ‘The Business’ means the usual work and activities carried on by the Insured pertaining to his business as specified in the Schedule and no others.”

16.  I will elaborate further on the reasons for my finding hereafter.  However,I will state it at the outset.  My finding is that, whilst the policy was issued for the purpose of Part IV of ECO in respect of specified employees engaged in interior design work, it was however, plainly and unambiguously not issued in relation to the plaintiff.  In making this finding I have taken account of the following:

(i) The application of commercial common sense.

(ii) The application of the principles outlined above and also Lord Hoffmann in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 AER at 114:

“Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract…

… the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. …”

(iii) Due weight being attached to the evidence of AXA’s witness, Ms Tsang Sze Ming, Phoenix, a senior underwriting officer who, succinctly, gave AXA’s interpretation of this policy.  She believed that it was understood by both parties that it was a low risk policy to cover office staff and, as the name “Office Pak” suggests, covered office work duties by clerical staff.  She further explained that the reason a specified number of staff and their salaries was included in the schedule was for the purpose of calculating the annual premium.  The premium, by any standards, would be described as low or modest.  Accordingly the policy did not extend its coverage to include casual skilled labour carrying out construction work on site.  I regarded the whole of her evidence as reliable and sensible and I accepted it.

(iv) My consideration of the competing submissions helpfully advanced by all counsel. 

Discussion

17.  In reaching this decision, which effectively determines the entire case, a number of matters both legal and factual, have been considered.  I now briefly outline those of particular significance.

(i) “Scope of Cover”

18.  Mr Wong relies on the words in this part of the policy which state:

“If any employee in the Insured’s immediate employ shall sustain bodily injury… in the course of employment by the Insured in the Business.”

He submits that this includes the plaintiff doing his carpentry work on a daily pay basis at a certain site where renovation work is being carried out.  He acknowledges also that if this is the correct interpretation every casual labourer doing plumbing, electricity work, air conditioning, carpentry etc in all Nuovo’s projects are covered.  This must be wrong.  Taken in context the words “immediate employ” can only, sensibly, mean those clerical jobs listed in the schedule.  Moreover the words “in the Business” must refer to the definition of Business in the policy which is “Office (Interior Design)”.  Such definition plainly excludes building and construction activities.

19.  In further support the statutory declaration of Mr Colin Yue Chi Wai, a creative director of Nuovo, explains that the Nuovo staff carried out design work only, whereas the building side of their designs was carried out by sub‑contractors or self‑employed independent contractors.  Section 40 of ECO does not require the company to arrange insurance for such workers.

20.  It is significant also that the “Contents” insurance provisions define the “Premises” to which the policy was to apply as “premises as specified in the Schedule and is used solely as an office… without any manufacturing work”.  This provides support for the submission, correctly made, that the “Office Pak” policy covered, in broad terms, office workers doing office design work in office premises. Madam Tsang’s evidence (referred to above) was entirely consistent with this.

(ii) Other cases concerning section 43 and 44 of ECO

21.  Section 44 gives an employee a statutory right to enforce the policy directly against the insurers as if he were a party.  What section 44 does not do is widen the scope of the policy to include an employee who was otherwise not included on a proper construction of its terms.

22.  Mr Wong has valiantly, but unsuccessfully, submitted that a decision of this court, Law Lai Ha & Anor v Zurich Insurance Co [2011]2 HKLRD 450, not surprisingly relied on by Ms Lau and Mr Ismail, was wrongly decided and is “at odds” with authorities cited and relied on by him.

23.  First, I do not agree with the expression “at odds with”.  The various cases cited by Mr Wong had different issues to which I shall briefly refer.  Secondly, I agree with Ms Lau and Mr Ismail that the Law Lai Ha case is the closest factually and closest to “the issue to be decided” in the present case and was correctly decided.

24.  In the Law case Sakhrani J stated:

“An employer is, of course, under a statutory duty to insure all his employees in his employment in relation to all of his businesses. It seems to me that the obligation of an employer to take out compulsory insurance under section 40(1) of the Ordinancefor its employees can be met by an employer who obtains more than one policy. There is no obligation upon an employer to insure against his statutory liability to his own employees of all his businesses in one policy with one insurer. The singular ‘a policy of insurance’ in section 40(1) would include the plural (section 7(2)Interpretation and General Clauses OrdinanceCap 1). It seems to me that the obligation of the employer can be met by taking out more than one policy of insurance.

…

In this case, however, it seems to me to be clear that, as I have found, the deceased was not covered by the policy. In terms of section 43(1) of the Ordinance, there was not in force a policy of insurance in relation to the deceased.

…

Section 40(1) does not, in my view, impose an obligation on an insurer to provide a policy of insurance to an employer other than the one requested by the employer.  The insured’s obligation to indemnify is determined by the contract of insurance.  It seems to me that the only insurance that was sought and was provided was as set out in the Schedule namely, for the categories of office attendant and clerk of Chon Bon at the risk address in Hong Kong and not for other workers of Chon Bon including factory workers or factory managers or production managers. Obviously Chon Bon should have taken out a policy of insurance to cover other employees like the deceased but the fact that it did not cannot impose any obligation on the part of the defendant to indemnify under the policy.”

25.  Thus the simple issue was — never mind what he was doing at the time of the accident, was the policy in relation to him?  The same issue arises in the present cases.  In a sense Law’s case was more difficult to decide because the judge rightly determined that what the plaintiff was doing at the time did not exclude him from the policy but the fact that the individual in question, the plaintiff, was not intended to be covered, did.  In our case not only was the plaintiff not a worker covered by the policy but also, all carpentry, plumbing, electricity etc works were not intended to be covered by either party to the contract of insurance.

26.  The plaintiff and AXA submit, and I agree, that the cases replied on by the Board are distinguishable and cannot be relied on as authorities which demonstrate that Law Lai Ha was, in any way, wrongly decided.

27.  In King Tak On v Lau Chun Yip [1987] HKLR 126 the insurer had attempted to repudiate liability under the policy because the employer, the insured company, had deliberately understated important facts to the insurer, such as the number of employees, their wages etc (all matters relevant to the assessment of a fair premium, fair to both sides).  In that case there was a policy in force in relation to the plaintiff and the insurer could not repudiate after the accident on the basis of material non‑disclosure by the company.  The case does not assist on the question of the construction of the terms of a policy in deciding whether it was “in relation to” the claimant.

28.  Similarly, a second case relied on by Mr Wong for the Board does not assist him.  In Chan Chu Ngan v Wong Woon Pui & Anor [1992] 2 HKC 193 the Court of Appeal decided that the policy in question was “in relation to the plaintiff”. However, this was not the key issue.  The key issue was whether or not the insurer could repudiate liability for the claim on the basis that the person (to whom the policy did relate) should be excluded because of the particular activity he was carrying out at the material time.  The court decided that the insurer could not rely on the particular exclusion clause and were held liable to pay on the basis that the policy was taken out “in relation to the plaintiff”.

29.  In the present case the sole basis upon which AXA has denied liability from the outset is that this policy, on its terms, unequivocally does not cover this plaintiff.

30.  A further example of the insurer’s liability being determined by the words of the policy is Leung Chack v Asia Insurance Co Ltd [1991] HKLR 496.  In that case the injury was sustained by an employee of a sub‑contractor.  The insurance company was the principal contractor’s insurers.  That policy only covered the principal contractor’s immediate employees.  The court held that the expression “immediate employees” could not be ignored or redefined by ECO.  Similarly in the present case there are many examples of the use of words which limit the coverage to the exclusion of the plaintiff.  For example:

“… in the Insured’s immediate employ …”

“… ‘The Business’ means the usual work and activities carried on by the insured pertaining to his business as specified in the Schedule …”

“… Business:     Interior design”

31.  In my judgment Mr Wong’s submission (vital to the success of his case) that “Interior Design” covered not only those who did the design work in their office premises (as listed in the policy) but also every construction worker, employed on any basis, whether it be casual, self‑employed, part‑time, sub‑contractor or whatever, on every site where Nuovo had been engaged to build their designs, is commercially unreal and must fail.

(iii) The contra proferentem rule

32.  Mr Wong submits that the expression “any Employee in the Insured’s immediate employ …” is, at best, ambiguous and the contra proferentem rule should be applied to construe it in the Board’s favour.

33.  In my judgment the rule has no application because there is no ambiguity.  It does not say “any employee”, it says “any Employee in the Insured’s immediate employ”.  Once again, when viewed in context as part of the entire policy the expression can only have one meaning, namely that advanced by the plaintiff and AXA.  Mr Wong describes AXA’s interpretation as “unduly narrow”.  With respect, in context, it seems to me to be neither narrow nor unduly so. I accept Madam Tsang’s evidence where she states:

“It is clear and obvious that since inception, the policies and the Policy in question did not cover any carpenter, carpenter’s work or any other decoration work. It is plain and obvious that the accident by Mr Lo Siu Wa was not covered by the Policy in question.”

Issues 3, 4 and 5

34.  The above deals with Issues 1 and 2 of the agreed list of issues set out in pages 4 and 5 of this judgment.  In view of the court’s decision on Issues 1 and 2 the remaining issues can be dealt with relatively briefly.

(i) Issue 3

35.  The plaintiff brings his claim, under sections 16 and 20 of the ECAO. Section 16(3) is a provision relating to the recovery of employees’ compensation and section 20A is an identical provision relating to the recovery of damages.  They provide that:

“For the purpose of this section, an eligible person is not to be regarded as being unable to recover from an employer payment of an amount of [compensation or] damages for which the employer is liable unless the eligible person has taken such proceedings to recover payment of the amount-

(a) from, wherever applicable-

(i) the employer; and

(ii) an insurer who has issued a policy of insurance-

(A) which is in force in relation to the injured employee at the time of the accident concerned; and

(B) indemnifying the employer in respect of such liability; and

(b) as are reasonable in the circumstances, having regard to the likely cost of such proceedings, the resources available to the eligible person and the amount likely to be recovered from, wherever applicable, the employer and the insurer.”

Did the plaintiff take reasonable steps?  The answer is plainly in the affirmative.

36.  The plaintiff commenced his ECC claim in August 2009 and his damages claim in 2010.  In the latter his damages were assessed in excess of $3.5 million, net of the ECC claim, in April 2012.

37.  Nuovo had failed to pay the ECC Award and was wound up in February 2011.  AXA was notified of all proceedings from the outset and has consistently and firmly denied liability under the policy.  The plaintiff had demanded payment from AXA at the appropriate times.

38.  From the outset the reason given by AXA for denying liability was precisely the issue in these proceedings.  The plaintiff did not challenge this stance and therefore did not embark on legal proceedings against AXA which it believed it would lose.  The outcome of this case supports that decision.

(ii) Issue 4

39.  The plaintiff has always been legally aided.  The decision to apply under sections 16 and 20 of ECAO rather than against AXA was made on the basis that Legal Aid took the view, correctly, that it would lose against AXA and incur substantial costs.  The Board had refused to indemnify the plaintiff’s costs in such an eventuality.  In view of such circumstances it would have been financially reckless and not in the plaintiff’s interest to commence proceedings against AXA.

(iii) Issue 5

40.  The Board were wrong to reject the plaintiff’s applications under sections 16 and 20A of ECAO.  The Board’s stance that the plaintiff should have commenced proceedings against AXA first was erroneous.  The reasons have already been stated above and require no further elaboration.

QUANTUM

41.  It follows from all of the above that the plaintiff shall succeed in its claim against the Board pursuant to sections 16 and 20A of ECAO.  It is acknowledged that the Board is, to quote Mr Wong, “the last resort and a public body entrusted with public funds”.  It should also be viewed as a “safety net” ensuring that workers, such as the plaintiff, receive proper compensation provided all the conditions and provisions contained in the relevant ordinances have been met.

42.  The plaintiff’s injury in this case was sustained nearly nine years ago. Throughout all the proceedings it was never suggested by any party that he was not entitled to compensation.  For many years, whilst the plaintiff remained uncompensated, the argument was — who pays?

43.  As a result of a discussion between the court and the parties on the first day of trial AXA undertook to ensure payment in full to the plaintiff in the sums contained in this order, regardless of any future proceedings (conditional, of course, on being reimbursed by the Board should the Board lose in this action).  All counsel agreed that, if possible, the plaintiff should not have to wait longer than necessary to receive his entitlement, nine years after the accident, irrespective of whether there were further legal disagreements between the parties.  (On 14 January 2016 the court received a letter from the parties setting out an agreed arrangement in this regard, which the court approved.)

44.  Mr Wong also indicated to the court that in respect of quantum and costs there were no disputes between the parties.

45.  The order I make is therefore that requested by Ms Lau on behalf of the plaintiff as against the 1^st defendant, the Board, as follows:

(i) Under section 16 of ECAO:

(a) $678,136.83 — the ECC order made on 7 October 2010 including interest;

(b) DCE9 297/2008 costs pursuant to section 23(1)(b) of ECAO of $159,286.36;

(c) HCCW 497/2010 costs pursuant to section 23(1)(b) of ECAO of $50,632.65;

(d) Costs of this section 16 application; and

(e) Further interest to be agreed.

(ii) Under section 20A of ECAO:

$3,552,928.67 being the damages assessed, net of the ECC Award, in the plaintiff’s personal injuries claim against his employer, Nuovo.

COSTS

46.  I make a costs order nisi against the 1^st defendant to pay the plaintiff’s costs in HCA 799/2014 and HCA 393/2014 and the 2^nd defendant’s costs be paid by way of a Sanderson Order (Sanderson v Blyth Theatre Co [1903] 2 KB 533), the terms of which to be agreed between the parties.