YEUNG WING YIU v. LO SHUK CHING, t/a CHUN-HO AIR-CONDITION ENG CO AND ANOTHER

DCEC 2576/2019

[2021] HKDC 571

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2576 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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DECISION

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A. Introduction

1.  In these employees’ compensation proceedings, the Applicant claims against the 1^st Respondent and the 2^nd Respondent respectively as the employer and the principal contractor for the personal injuries he allegedly sustained in an alleged accident near a residential building at Tai Mong Tsai Road (“Site”).

2.  By summons (“Summons”) dated 3 December 2019 issued pursuant to O 26, r 1 and O 32, r 1 of the Rules of the District Court[1], the Applicant applied for leave to serve interrogatories on the 2^nd Respondent. Enclosed with the Summons was a copy of 3 proposed interrogatories (“Interrogatories”), namely: -

(1) Whether the 2^nd Respondent was a contractor of the Site where the alleged accident occurred;

(2) Whether the 1^st Respondent was a sub-contractor of the 2^nd Respondent; and

(3) Whether the 2^nd Respondent was the principal contractor.

3.  The Summons was originally fixed to be heard together with the First Directions Hearing on 5 May 2020.  Due to the prevailing pandemic, the hearing of the Summons could not be held until 5 March 2021.

4.  At the adjourned hearing on 5 March 2021, by the consent of the Applicant and the 2^nd Respondent, this court granted leave to the Applicant to withdraw the Summons.  As for the costs disputes, I directed a paper disposal and further directed parties to lodge written submissions.

B. The parties’ positions

5.  The Applicant’s Legal-aid assigned solicitors, Messrs Or & Partners (“OrP”) seek costs of the Summons, alternatively an order that costs be in the cause.  They submitted that the Summons was necessitated by the 2^nd Respondent’s ambiguous denials in its Answer in denying that the 1^st Respondent was its sub-contractor and that it was the principal contractor.  The said denials, OrP stated, were contradictory to the information disclosed in the Form 2 (“Notice by Employer of the Death of an Employee or of an Accident to an Employee Resulting in Death or Incapacity” submitted to the Labour Department) in which it was stated that the 2^nd Respondent was the principal contractor.

6.  The 2^nd Respondent’s former solicitors, Messrs Hom & Associates (“Hom”)[2], contended in their written skeleton submissions that the Applicant should pay the 2^nd Respondent’s costs of and incidental to the Summons on the ground that the Summons was issued prematurely.

7.  Before the Summons was issued, OrP sent Hom two letters dated 25 November and 27 November 2019.  Hom were asked in the earlier letter to “reconcile the contradiction between the Form 2 and the Answer”; and in the second letter, to provide information to the questions that were identical to the Interrogatories set out in it by the following day on 28 November 2019.

8.  On 28 November 2019, there were two correspondence exchanges between Hom and OrP - (i) Hom’s holding reply, requesting OrP for a copy of Form 2 and to withhold making any application to the Court; and (ii) OrP informed Hom that Form 2 was already enclosed with their letter of 25 November.

9.  When OrP heard nothing further from Hom, the Applicant issued the Summons on 3 December 2019.

10.  On 18 February 2020, before the original hearing day on 8 May 2020, Hom in their letter to OrP provided the information sought in the questions.  They further proposed to OrP to agree to withdraw the Summons with no order as to the costs.  Hom’s similar proposal made on 16 April 2020 was rejected.

11.  The day before the adjourned hearing on 5 March 2021, Hom again put forward the same costs proposal which was again rejected.

C. Analysis

12.  Order 26 does not have any provision corresponding to O 26, r 3 of the Rules of the High Court that permits service of interrogatories without order on a party, who may, within 14 days of being served, apply to the court for the variation or withdrawal of the served interrogatories.  Irrespective of the absence of such corresponding provision, I believe that the criterion of reasonableness shall be applied to the present situation.

13.  In OrP’s letter of 27 November 2019, the questions identical to the Interrogatories were already set out.  Applying the spirit of reasonableness, I believe Hom should have been given reasonable time to respond to those questions.

14.  However, by demanding that Hom answer the questions the day after the letter of 27 November 2019, OrP was, in my view, acting very unreasonably. Viewed in this way, I agree that Hom is plainly right in stating that the Summons had been prematurely issued.

15.  Even though Hom only provided the information sought in the Interrogatories two months after the issuance of the Summons, the answers were nonetheless provided before the original hearing of the Summons.  Given the Applicant’s rejection of Hom’s repeated costs proposals, the late provision of the answers, in my view, has no adverse bearing on the costs issue.

16.  Having regard to OrP’s unreasonable conduct in having issued the Summons prematurely and rejecting, in my view, Hom’s most sensible proposals for the disposal of the Summons, I do not consider that it is fair to award costs to the Applicant.

17.  However, having regard to the fact that Hom only provided the information sought in the Interrogatories two months after the Summons was issued, I therefore think that the 2^nd Respondent should not be allowed its costs.

18.  Having regard to all the matters I discussed above, I believe that the fairest costs order is that there should be no order as to the costs, and I so order. The Applicant’s own costs should be taxed in accordance with the Legal Aid Regulations.