CHAN YUET CHUN v. HOSPITAL AUTHORITY

DCPI 1749/2020

[2024] HKDC 1991

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1749 OF 2020

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BETWEEN

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DECISION

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THE SUMMONS

1.  By a summons filed on 24 May 2024 (“Summons”), the Defendant (“D”) seeks to strike out substantial parts of the Plaintiff’s witness statement filed on 15 December 2023 (“P’s WS”) under Order 1A r 1, O 1B r 1(2)(l), O 20 r 8, O 38 r 2A(8) of the Rules of the District Court, Cap 336H (“RDC”) and inherent jurisdiction of the court.

2.  In support of the Summons, D, represented by Messrs Howse Williams, filed an affidavit of Fung Ka Man Carmen dated 2 July 2024 (“F’s Aff”) [A/262-266].

3.  The legally aided Plaintiff (“P”), represented by Messrs Burke & Company, opposes the Summons, but has not filed an affidavit in opposition.

BACKGROUND

4.  In their report letter dated 13 May 2024 to the Director of Legal Aid (“DLA”), P’s solicitors state, “…This is a simple medical negligence claim of a small value; a cost-effective approach should be adopted” – this Court entirely agrees.

5.  P, a lady now aged 77, underwent a diagnostic procedure of oesophagogastroduodenoscopy (OGD) at Queen Elizabeth Hospital (“QEH”) on 22 June 2017 (“the OGD”) during which she suffered an oesophageal perforation (“Incident”). She claims in this action against D who had the administration, management, and control of QEH damages for personal injuries sustained as a result of the Incident.

6.  Successful emergency surgical repair was performed at QEH on the evening of the OGD. Medical evidence shows that by 10 July 2017 (about 2 to 3 weeks after the Incident) the perforation wound had healed, leaving a scar at the neck.

7.  In this action, P filed the Statement of Claim (“SOC”) on 21 October 2022 and D the Defence on 19 December 2022. Pleadings were closed following the filing of P’s Reply on 2 March 2023.

8.  As pleaded in the Statement of Damages (“SOD”) filed together with the SOC, the issues on quantum are relatively simple. P’s claim is for a total sum of $688,307, plus future medical expenses (if any, subject to medical expert evidence) and interest. The item of PSLA, pleaded at $500,000, comprises a major part of the claim, other than the modest claims of loss of earnings for 3 months ($18,900), loss of earning capacity ($50,000) and miscellaneous expenses, mostly for tonic food ($119,407), incurred and paid.

9.  The Particulars of Negligence against D as pleaded in the SOC can be summarised as follows:

(1) Failure to inform P of the risks of oesophageal perforation, hence failure to obtain an informed consent before commencing the OGD;

(2) Failure to recognise the difficulties encountered during the OGD and the oesophageal perforation; and

(3) Failure to properly advise on or manage the oesophageal perforation by alternative non-operative/conservative options or management after the Incident.

10.  As pointed out by Ms C Fung of D’s solicitors, and accepted by this Court, the issues in dispute as to liability in this action are relatively simple and well defined in the pleadings as follows:- ([A/5,6] SOC §21; [A/27,28] Defence §§8,9)

(1) Whether there was informed consent for the OGD;

(2) Whether the OGD was appropriately performed; and

(3) Whether remedial operative management of QEH of the oesophageal perforation was appropriate.

11.  Liability medical expert reports, a total of 6 in number, from specialists in Surgery have been obtained by P and D over a period of 3 years as follows:

For P:	4 reports by Dr Anthony Teoh (dated 17 December 2019, 8 January 2020, 9 October 2021 and 1 July 2022)
For D:	2 reports by Dr Leung Siu Kee (dated 1 November 2017 and 1 February 2023)

12.  In the 6 medical expert reports, Dr Teoh and Dr Leung have dealt with and addressed all issues outlined above and given their opinions on the following:

(1) Whether there was informed consent obtained from P for the OGD;

(2) Whether oesophageal perforation is a known risk or complication of OGD;

(3) The relevant experience of the doctor, a surgical trainee, who performed the OGD on P on 22 June 2017;

(4) Should a reasonably skilled medical practitioner recognise an oesophageal perforation during OGD, and upon recognition, what should be the appropriate treatment/ management; and

(5) The option of conservative management of the oesophageal perforation post-OGD.

13.  It is noted that P’s expert Dr Teoh in his report dated 8 January 2020 states that apart from the presence of physical scars after the operation, there appears to be no permanent damage to P. There is no evidence on indication or need for future medical treatment from both experts.

14.  Discovery was completed in November 2023. Parties exchanged witness statements on 15 December 2023.

D’S OBJECTIONS

15.  P’s WS contains 117 paras in 50 pages. There are also 5 exhibits spanning nearly another 50 pages. ([A/263] F’s Aff, §8)

16.  D’s main ground of objection is that substantial parts of P’s WS contain inadmissible evidence which should be expunged. D argues that most parts of P’s WS (i) are irrelevant to the issues in dispute; (ii) are overelaborated and disproportionate to the claim; and (iii) contain extensive reference and recitation of medical records – these are inadmissible and should be struck out.

17.  P disagrees and argues that D’s objections are “technical” matters which may only go to costs at the end of the litigation. ([A/264, 279-296] F’s Aff §§9-11)

18.  Parties exchanged correspondence and argued on redaction of substantial parts of P’s WS between 31 January 2024 and 30 April 2024. P’s solicitors agreed that only sub-paras 60(2) and 70(2) may be redacted. This resulted in issue of D’s Summons on 24 May 2024.

19.  By the Summons, D raises objections and seeks to expunge wholly or partially 79 paras of the 117 paras in P’s WS.

20.  D further points out that it is unnecessary to annex to P’s WS the 5 exhibits which should more properly be, and some of which have already been, discovered by way of P’s List of Documents filed on 8 November 2023 and adduced in evidence.

21.  Parties liaised further. P’s first major concession on redaction was not made until 20 September 2024. By the time of and during the course of the hearing before this Court, P agrees to expunge 28 paras in whole and 16 paras partially from P’s WS. Minor concessions are made by D. No agreement could be reached in respect of 47 disputed paras.

22.  During the hearing, P also concedes to expunge Exhibit 1 (Consent Form in Chinese, with English translation) and Exhibit 2 (Information Sheet in Chinese, with English translation), spanning a total of 27 pages.

23.  Exhibit 1 and Exhibit 2 are contained in P’s List of Documents and have been discovered and adduced in evidence. This Court has no doubt that it is wholly unnecessary for these documents to be duplicated and exhibited in P’s WS.

24.  D’s solicitors have helpfully prepared a table appended to their letter dated 10 October 2024 setting out all 117 paras and 5 exhibits of P’s WS, denoting the agreements on redactions and the remaining disagreements/disputed paras [C/378-391] which require this Court’s adjudication.

LEGAL PRINCIPLES ON STRIKING OUT WITNESS STATEMENTS

25.  Parties are agreed on the legal principles governing witness statements as summarised in D’s Submissions dated 14 October 2024.

26.  O 38 r 2A of the RDC provides that:-

“(1) The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case…”

“(8) Nothing in this rule shall make admissible evidence that is otherwise inadmissible.”

27.  It is incumbent on a party preparing a witness statement to ensure that the statement contains no inadmissible evidence. (Hong Kong Civil Procedure 2024 (“HKCP”) at 38/2A/15, Sunni International Limited v Kao Wai Ho Francis & Ors [2021] HKCFI 2418 §8, Kong Sau Hing Alice v Yip Yuen Yee Pamela [2022] HKDC 216 §§39-41)

28.  The court has a wide discretion to expunge witness statement or parts thereof on the grounds that such statement evidence is inadmissible because it contains information and belief (even if the grounds and reasons thereof are given), or any expression of opinion, or that it is irrelevant, scandalous, oppressive and/or embarrassing. (O 38 r 2A(8) RDC, HKCP at 38/2A/6)

29.  The real issues in dispute in a litigation are defined by the pleadings. (HKCP at 18/0/3) Witness statements are to identify and prove the real issues and eliminate unnecessary issues so that both the parties and the trial judge may concentrate on the real matters in controversy and hence achieving a fair and expeditious disposal of proceedings and saving of costs. (HKCP at 38/2A/2(1), (5) and (10), Ho Wai Tung v Ho Fung [2020] HKCFI 1787 §§29-30)

30.  A witness statement is the equivalent of the oral evidence that a witness will give at trial. It must contain only such material facts as the witness is able to prove of his own knowledge. Inadmissible evidence incorporated in a witness statement will not be made admissible. (O 38 r 2A(8) RDC, HKCP at 38/2A/6, Ho Wai Tung (supra) §36)

31.  It is not the function of a witness statement to provide a commentary on the documents in the trial bundle or to set out quotations from such documents. (Sunni International Limited (supra) §7 citing JD Wetherspoon plc v Harris [2013] 1 WLR 3296 §39)

32.  It is also not the function of a witness statement to engage in matters of argument or to deal with other matters which may arise in the course of trial. A witness statement therefore must not argue a party's case, or argue with opposing witnesses, or answer questions that may be put in cross-examination, or to anticipate, contradict or deal with the evidence of the opposite party. (HKCP at 38/2A/6, JD Wetherspoon (supra) §39, Ho Wai Tung (supra) §§42, 57)

33.  A witness statement which contains inadmissible evidence, such as expression of mere opinion, scandalous or irrelevant or otherwise oppressive materials, is liable to be struck out by the court, and unnecessary details may also be susceptible to be struck out, (see eg Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings), as otherwise it will lead to embarrassment, unnecessary confusion and a waste of time and effort for the opposite party to respond to it. (HKCP at 38/2A/15, Lau Tat Wa v CLP Power Hong Kong Limited & Ors [2023] HKCFI 1036 §§4, 5)

34.  Evidence that is inconsistent with a party’s own pleadings should also be struck out; relevance is decided with reference to the pleadings. (Talent Weaving Dyeing & Printing Ltd v Able Billion Textiles Ltd [2013] 2 HKLRD 479 §5, Lau Tat Wa (supra) §4)

35.  Superimposed on the requirements under O 38 r 2A of the RDC and the above trite legal principles is the additional requirement, since the advent of the Civil Justice Reform, of the need to look closely at costs implications and proportionality, and advance the underlying objectives under O 1A rr 2 & 3 of the RDC.

36.  Parties should exercise discipline in preparing witness statements and in the discovery process, and not to include unnecessary, irrelevant, trivial and/or petty materials in their witness statements, which are “unduly excessive and completely disproportionate to the size of the claim…or the defence”, and for a “totally over the top” and “elaborated and wasteful” discovery process with a lot of unnecessary and irrelevant documents discovered. (HKCP at 1A/3/4; Kong Sau Hing Alice (supra) §§38-41)

THE DISAGREEMENTS

37.  I have considered the submissions and arguments of Mr Patrick Burke of P’s solicitors and Ms C Fung of D’s solicitors.

38.  D’s grounds for striking out substantial parts of P’s WS can be summarised as follows:-

(1) Evidence of pre-existing medical conditions and records of P (covering about 17 years from early 2000 up to the time of the OGD on 22 June 2017) is irrelevant;

(2) Evidence on P’s previous and post-Incident experience of undergoing other OGD procedures is irrelevant;

(3) The extensive recitation of records and documents including the Consent Form, Endoscopy Procedure Form and medical records in many paras should not be allowed;

(4) Statements of information and advice from lawyers, not factual matters within P’s own knowledge, should be expunged;

(5) Evidence of P’s observations and belief, as opposed to factual evidence, is inadmissible;

(6) D raises no challenge to §§14-18 (spanning 2 pages) on P’s pre-incident work and earnings. Further details eg of P’s background and vocational training since she left school at age 11 or 12 and up to year 1970 (paras 11-13) are overelaboration and unnecessary and should be struck out; and

(7) The extensive §§71-79 on steps taken, and progress and preparation of the legal claim by DLA and P’s former solicitors are not within P’s own knowledge and irrelevant to the issues in dispute, and should be struck out.

39.  The reply from Mr Burke of P’s solicitors to the above, broadly speaking, is that:-

(1) Even though some of the evidence is not relevant to the issues, it adds to P’s narrative and helps to give a full picture / background and will assist the court in understanding P’s evidence and considering the issues at trial;

(2) D’s objections are “largely technical”. There is no challenge that any of the facts stated are incorrect or prejudicial to D;

(3) It would be convenient to summarise the medical evidence from the medical records, again to give a full background which would assist the court in understanding P’s case and evidence; this includes evidence of other OGD procedures received by P before and after the OGD Incident on 22 June 2017;

(4) Conduct and preparation of the claim of P’s former solicitors and DLA are relevant circumstances which explain how the numerous medical reports and records came about and why the current solicitors (Messrs Burke & Company), after they came onboard as from 21 August 2023 upon re-assignment by DLA, have to take the current and further actions in further preparation of P’s case;

(5) As shown in P’s WS, it is likely that the medical experts have not dealt with all issues pertinent to and resulting in the oesophageal perforation Incident during the OGD on 22 June 2017. That explains why P’s present solicitors had requested for extensive discovery by D of P’s medical records and sought leave in P’s Checklist review Questionnaire dated 18 April 2024 to amend the SOC with a copy of the draft Amended SOC appended thereto. P’s solicitors proposed that upon filing of P’s WS, parties should provide the same to the medical experts for discussion, with a view to “narrowing down the issues”. For those purposes, P’s solicitors had in their letter dated 14 May 2024 to D’s solicitors proposed an extensive draft List of Issues setting out about 35 questions for the medical experts’ consideration and discussion in a proposed joint meeting. Needless to say, D raised strong objections to the draft List of Issues which D argues contains numerous expanded issues not within the scope of the pleadings.

THIS COURT’S RULING

40.  With respect to Mr Burke, this is a wholly wrong approach and defies the legal principles on witness statements set out above.

41.  The proposed conduct of P’s solicitors in attempting to reopen and fish for further issues by way of a joint meeting with the medical experts and amend the SOC to plead further issues based on P’s WS after 6 medical expert reports have been obtained by the parties over a period of over 3 years, and 2 years after service of the SOC, is wholly inappropriate and should not be allowed. This is not the function of witness statements.

42.  P’s present solicitors are trying to reopen the issues and amend the SOC after close of pleadings and obtaining of medical expert evidence, following the re-assignment of P’s case by DLA to them in place of the former assigned solicitors.

43.  It is noted that DLA had in his letter dated 28 May 2024 to P’s solicitors (copy lodged with the court) expressed serious concerns with P’s proposed conduct of further extensive discovery against D and amendment of the SOC. Whilst P’s solicitors had already undertaken some of the work, DLA warned that such work was not covered by legal aid for which P’s solicitors will not get paid and would put the legally aided P at risks on costs. I will come back to this when considering costs towards the close of this Decision.

44.  The issues are defined by the pleadings based on the material facts pleaded, to be supported and proved by evidence including witness statements. In proposing to amend the SOC based on P’s WS filed, P’s solicitors are putting the cart before the horse.

45.  The real issues in this medical negligence case are related to the administration and post-op management of the OGD performed by D on P on 22 June 2017. Given there is no issue on P’s suitability to undergo OGD procedure in view of her pre-existing medical conditions, and the evidence that she had had experience of other OGDs before and after the Incident, D’s objections set out in sub-paras 38 (1) and (2) above are justified and accepted.

46.  D’s other objections set out in sub-paras 38 (3) to (7) above accord with the well recognised legal principles, and are accepted.

47.  Bearing the relevant principles in mind, I now turn to the disputed paras in P’s WS, which D seeks to expunge in whole or partially but P argues that they should be kept. I set out briefly the contents in dispute, the agreements and disagreements, and my rulings in the table below:-

Para	Contents / Arguments / Court’s Ruling
4	Agreed – P agrees to expunge except the first 2 sentences on P’s home address.
7 Ruling:	Medical conditions of P from early 2000 to 2022 / Treatment / Disability: P agrees to expunge items 2-6, 8 (kidney) and 9, but seeks to retain items 1, 7 & 8 (stomach problem / colonoscopy). Irrelevant – whole para expunged
8 Ruling:	Information of P’s preferred hand/eyesight – agreed to be expunged, but P seeks to retain details of height and weight. Irrelevant – expunged
9 Ruling:	P agrees to expunge except P “did drink alcohol but quit due to stomach problem (this was after June 2017)”. Irrelevant – expunged
11-13 Ruling:	P’s education and vocational background from age 11 or 12 till year 1970. Not relevant to the claim for loss of earnings; unnecessary / overelaborated details when paras 14-18, spanning 2 pages, have set out details of P’s pre-accident work and earnings. Whole paras expunged
20, 21 Ruling:	Pre-existing stomach problems / pre-OGD investigation / requested sedation; P only agrees to redact reference to medical records. D argues: Pre-existing medical background irrelevant, preparatory steps and investigation before OGD not in issue. Whole paras expunged
22 Ruling:	P changed hospitals for the OGD on 22 June 2017. Irrelevant – expunged
26	Agreed to delete “I believe”
30 Ruling:	P confirms copy and exhibit Consent Form as to what is shown in the form. D argues: Not necessary. P’s evidence that she was not explained by the hospital staff the contents of the Consent Form – already covered in para 29. Expunged
32 Ruling:	P refers to details in the Consent Form and comments that the stated steps were in fact not done / explained to her. Ditto (covered in para 29 already) / biopsy not in issue – expunged
33 Ruling:	P agrees to expunge whole para except the opening para and 33(2) that she was given the Information Sheet and recalled reading a similar document. Fact within P’s own knowledge – allowed
34 Ruling:	P agrees to expunge whole para spanning 2 pages on details recited from the 4-page “Endoscopy Procedure Form” except the opening para (that she was given this form) and para 34(3)(b) (that she was given an information sheet). Para 34(3)(b) – duplicates para 33 Other than the first sentence in the opening para, the rest of para – expunged
35 Ruling:	P agrees to expunge the whole para except the name of the doctor and her manner in para 35(5). Para 35(5) – allowed The rest is recitation from the record – expunged
36 Ruling:	P only agrees to expunge reference to a para in the Defence. D seeks to expunge the whole para. Contents: Doctor or staff did not explain the procedure nor the risks. The first sentence – allowed The rest contains information from lawyers or duplicates paras 29 and 31 – expunged
37 Ruling:	P agrees to expunge substantial parts save and except the opening sentence “On the typed in form” and reference to P’s request for but refused general anaesthesia in para 37(7)(b), (d)-(g). Anaethesia / sedation not in issue – expunged whole para
39(5) Ruling:	D seeks to expunge the sentence “- and I believe it had a hole in the middle through which the tube for the scanner went”, it being an opinion/speculation of P. Not something P can prove of her own knowledge – expunged.
40 Ruling:	P agrees to expunge only the last sentence in 40(8). Details of how P felt and what she saw during the OGD (7) “as apparently - air is pumped into my stomach through the tube to inflate my stomach, so this can be seen in the scope and on the TV monitor” (8) “It seemed as if the doctor had difficulty in inserting the tube into my throat - and it took her several attempts to do this.” (7) & (8) – P’s opinion/belief or irrelevant to the issues – expunged Other sub-paras: evidence of P’s own knowledge / what she saw – allowed
42	D agrees during hearing to allow the disputed sentence “I would estimate that the procedure took about 10 minutes”.
49 Ruling:	P went back to QEH after the OGD, details of management. Evidence of P’s own knowledge – allowed save and except references to records and information from lawyers. Expunge: Opening sentence: “- and the record shows …[MR]” (1) “(though my lawyer tells me…has been sent)” (3) “and the record indicates…examination” (5) “(the record indicates…14:52 hours)” (6) “, and the record also shows” (7) whole para
51 Ruling:	D seeks to expunge the 2nd sentence being statement of record / information. P argues it is necessary to give a complete picture. Expunged
52 Ruling:	D seeks to expunge references to records in the opening para and (1) and (6). Expunge: Opening para: “The record shows that…it is marked” (1) as sought by D (6) as sought by D, save to allow “- specifically there was no suggestion that I could be treated conservatively”
54 Ruling:	D argues it is recitation of record and duplicates 52(6) which is allowed. Expunged
55	P agrees to delete all references of medical records “[MR]”.
58	P agrees to delete “– and believe”.
59 Ruling:	“­– about what had gone wrong” with the OGD Expression of opinion / belief, not a fact from P’s own knowledge – expunged
69 Ruling:	P’s experience (under full general anaesthesia) of another endoscopic examination about 5 years later. Other OGD experience / Mode of sedation irrelevant to the issues in dispute; P’s own belief / speculation – expunged
72-78 Ruling:	“H. THIS LEGAL CLAIM” – Preparation of the claim / conduct and advice of lawyers / obtaining medical records and seeking expert evidence. Irrelevant to the issues in dispute – expunged
80 Ruling:	P’s feeling of pain and fright during the OGD on 22 June 2017. Relevant and from P’s own knowledge (though repetitive to some extent of para 40) – allowed
81 Ruling:	“The operation record – …a hole…cut by the tube…” Recitation of record and expression of belief / opinion – expunged whole para
84 Ruling:	“The copy medical records show:…” followed by 7 pages of detailed in-patient post-operation care records during the 16-day hospitalisation post-OGD, with P’s comments in the last column. Unnecessary and extensive copying and recitation of records; post-OGD care not in issue – expunged whole para
85 Ruling:	D seeks to expunge the last part of the opening sentence “(the record…and records)” and (1)-(5) – all being references to records Recitation of records and commentary – expunged save and except (in the last sentence) “the CP gave me some counselling ”and“ and said there would be a referral to the Medical Social Worker”
86, 87 Ruling:	Recitation of records Expunged as sought by D
89-91 Ruling:	Recitation of records Recitation of records not allowed; also details of medications prescribed – irrelevant / unnecessary – expunged as sought by D
93 Ruling:	Recitation of records Expunged whole para
94 Ruling:	Recitation of records Expunged as sought by D
95 Ruling:	Recitation of records / irrelevant matters. D does not dispute the opening sentence “I have continued to have follow up for my Epigastric problems”. Further OGD received in 2021 – irrelevant – expunge (1) to (3) in whole
96 Ruling:	Photographs showing scar conditions at different times; P agrees to delete references to medical records “[MR]”. (2) – expunged (1) and (4), and photographs marked “CYC-3” and “CYC-4” – allowed
110, 111 Ruling:	“L. PAYMENTS RECEIVED SINCE THE ACCIDENT” Financial stress – relevant to quantum – allowed
112 Ruling:	Summary of medical expenses and related travel expenses, table attached as “CYC-5”. Relevant – allowed, save that enclosure of “CYC-5” is unnecessary, already disclosed in P’s List of Documents

CONCLUSION

48.  To recap, D by the Summons seeks to expunge 79 out of 117 paras and all 5 exhibits of P’s WS.

49.  At the hearing of the Summons, agreement was reached for P to expunge about half of the disputed paras wholly or partially, leaving 47 disputed paras that require this Court’s adjudication.

50.  This Court considers that most of the disputed paras of P’s WS contain unnecessary over-elaborations, extensive recitation of records, and matters and circumstances not relevant to the issues in dispute in this case.

51.  Of the 79 paras and 5 exhibits sought to be expunged wholly or partially by D in the Summons, D has successfully challenged and caused to be expunged 75 paras wholly or partially and 3 exhibits (spanning 38 pages) by agreement or through adjudication. Only 4 short whole paras (paras 80, 110, 111 and 112) and 2 exhibits of photographs are allowed to remain in P’s WS.

52.  The expunged parts are substantial and make up more than half of the contents of P's WS.

COSTS

Costs of the Summons

53.  The expunged contents amount to more than 90% of the disputed parts of P’s WS sought to be expunged by D. D is substantially the winning party of the Summons. Costs should follow the event. It is appropriate to award costs of the Summons to D, payable by P, to be taxed if not agreed, and I so order.

54.  The above order nisi shall become absolute in the absence of application to vary within 14 days from the date hereof.

55.  It is unfortunate that the costs lost by P to D in respect of the Summons, which will unlikely be insubstantial, will likely eat into the damages P may subsequently be awarded. Given the modest claim involved, these costs may even have to be funded by public funds of Legal Aid ultimately.

56.  In view of the matters stated in paras 41 to 43 in this Decision in particular DLA’s previous warning given to P’s solicitors regarding costs consequences, P’s solicitors are shown to be taking matters in their own hands in defiance of the legal principles and their duty owed to DLA. This has made it difficult if not impossible to achieve the underlying objectives of the CJR set out in O 1A r 1 of the RDC, and to carry out the court’s duty under O 1A r 2 of the RDC with respect to time efficient and economic case management.

57.  The circumstances in this case cry out for consideration of costs sanctions such that P’s solicitors should be asked to show cause as required by O 62 r 8 of the RDC as to why those costs of the Summons adjudged payable to D should not be borne by them personally.

P’s Own Costs

58.  Substantial costs have also been wasted in preparing P’s WS, of which substantial parts are proved to contain inadmissible evidence and struck out. I am of the view that the preparation of P’s WS was done in an unreasonable, unsatisfactory, frivolous and cost-disproportionate manner in blatant disregard of the rules under O 38 r 2A of the RDC and the legal principles.

59.  Consideration will have to be made whether to grant legal aid taxation in respect of preparation of P’s WS and of the Summons.

Wasted Costs Order

60.  Under O 62 r 8A of the RDC, the court is empowered to make, whether on its own motion or on application, a wasted costs order against a legal representative if, as provided in O 62 r 8(1) :-

“(a) the legal representative, whether personally or through his employee or agent, has caused a party to incur wasted costs as defined in section 53(5) of the [District Court] Ordinance; and

(b) it is just in all the circumstances to order the legal representative to compensate the party for the whole or part of those costs.”

61.  O 62 r 8B of the RDC provides:-

“(1) The Court shall consider whether to make a wasted costs order in 2 stages—

(a) in the first stage, the Court must be satisfied that—

(i) it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and

(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved; and

(b) in the second stage (even if the Court is satisfied under subparagraph (a)), the Court shall consider, after giving the legal representative an opportunity to give reasons why the Court should not make a wasted costs order, whether it is appropriate to make the order in accordance with rule 8.”

62.  I am satisfied that there is evidence justifying wasted costs proceedings in the present case (the first stage). I will further consider the matter in the second stage following the directions below.

Further Directions / Hearing

63.  For reasons stated in paras 53 to 59 above and in accordance with O 62 r 8A of the RDC and Practice Directions 14.5, I give directions as follows:-

(1) P’s Solicitors do show cause in writing, together with a bill of costs in respect of preparation of P’s WS and of the Summons, (copying to DLA) within 28 days from the date hereof as to (i) why the costs of D in the Summons should not be borne by them personally; and (ii) why legal aid taxation of P’s own costs in preparation of P’s WS and in the Summons (or parts thereof) should not be refused; and

(2) My clerk will then liaise with P’s solicitors for fixing a 2-hour hearing for them to address this Court on these matters.

64.  I further direct that a copy of this Decision be forwarded for the attention of DLA who is invited to make representation at the hearing and submit and serve on P skeleton submissions 7 days before the hearing.