KWOK SIU YING AND ANOTHER v. CHAN LIN CHUN AND ANOTHER

DCCJ2742/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2742 OF 2009

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

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

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

Reasons for Decision

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

1. At the beginning of the hearing, I pointed out to the parties that the 2^nd Defendant’s application for leave to accept the Plaintiffs’ sanctioned offer out of time was misconceived.  This is because the Plaintiffs’ sanctioned offer has already been altered by the addition of new terms on interest and costs.  This constitutes a new offer [see: Foskett on The Law and Practice of Compromise (6^th ed.) para. 17-07].  That being the case, the procedure laid down in RDC O.22 r.16(2)(b) and (3) for leave to accept out of time a valid and subsisting sanctioned offer is simply inapplicable.

2. Although both Counsel for the 1^st and 2^nd Plaintiffs and Counsel for the 2^nd Defendant accept my analysis that this application is misconceived, they are unable to agree on the proper order for costs.

3. Counsel for the 2^nd Defendant seeks to argue that the 1^st and 2^nd Plaintiffs should pay to the 1^st and 2^nd Defendants the costs of this application.  This is however opposed by Counsel for 1^st and 2^nd Plaintiffs.

4. Meanwhile, solicitors acting for the 1^st Defendant confirm that their client will not be seeking costs against any other parties in relation to the application and ask to be excused.

5. After hearing arguments, I formally dismissed the 2^nd Defendant’s summons and made the order that there be no order as to costs.

6. I now set out the reasons for the decision on costs.

7. Counsel for the 2^nd Defendant argues that his client is misled by the 1^st and 2^nd Plaintiffs into thinking that the Plaintiffs’ sanctioned offer is capable of being accepted out of time.  He also complains that the 1^st and 2^nd Plaintiffs have failed to “clarify” the terms of their sanctioned offer.

8. With respect, I fail to see how the 1^st and 2^nd Plaintiffs would be under a duty to “clarify” the terms of their sanctioned offer.  This is for the 2^nd Defendant to ask for clarification.

9. In any case, the Plaintiffs’ solicitors have already made it clear in their reply letter to the 2^nd Defendant’s solicitors dated 29 September 2009 that the 1^st and 2^nd Plaintiffs are not prepared to settle this action unless the 2^nd Defendant agrees in turn to pay them interest and to bear their costs incurred after the time prescribed for acceptance of the plaintiffs’ sanctioned offer.  They also included this letter a sanctioned offer for a further claim for loss of opportunity.

10. But then again, it is also clear from reading the correspondence exchanged between the parties’ solicitors that everyone was labouring under the misunderstanding that the Plaintiffs’ sanctioned offer was capable of being accepted.

11. Indeed, prior to the Plaintiffs’ proposal by letter dated 9 October 2009 for the 2^nd Defendant to take out a summons asking for leave to accept the sanctioned offer out of time, solicitors for the 2^nd Defendant have already indicated in their letter to the Plaintiffs’ solicitors dated 6 October 2009 that unless their proposed terms of settlement were accepted, they “shall issue a Summons under Order 22 rule 16(2) of the Rules to seek leave of the Court for the 2^nd Defendant to accept the Sanctioned Offer.”  This is clearly not a case where a party is solely misled by the other side into thinking that a sanctioned offer can be accepted out of time.

12. Viewed from these perspectives, I am of the view that all the parties are equally to be blamed.  The appropriate order is therefore that each party must bear its own costs.    

13. Accordingly, I made no order as to costs of the 2^nd Defendant’s Summons dated the 12 October 2009.