ESMAN, SAMSON N. AND ANOTHER v. ACMDC VENTURES INCORPORATED

1994 No. A9553

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Transferred from the Labour Tribunal Claim No. E621/94)

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1995 No. A363

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Transferred from the Labour Tribunal Claim No. E3705/94;
E3736/94; E3750/94; E3772/94)

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BETWEEN

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JUDGMENT

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1. These two Actions came before me on 15 July this year. On 29 July, I handed down orders effectively adjourning the trial. I also made an order nisi that the costs related to the hearing on 15 July be costs in cause. The Plaintiffs are content with that order as to costs. The Defendant seeks to alter it.

2. A little bit about the background:

3. The source of the current problem is the very late challenge by the Plaintiffs to numerous of the Defendant's documents. This caused two applications for an adjournment before the matter reached me.

4. On those earlier occasions, Mr Justice Jerome CHAN, granted the Defendant part of their costs but he reserved the costs thrown away by the adjournment to the trial judge. In my view, there was a good reason for that reservation. The main reason for the adjournment was the extraordinary increase in the number of witnesses. Both parties appeared to have contributed to that. The Plaintiff responded to the Defendant's hearsay notice with a counternotice necessitating the calling of a great many witnesses, and the Defendant finally assembled a figure of, I think, 397 witnesses. In my view, the person best placed to decide the costs relating to this huge increase in the evidence is the trial judge. He will have the best understanding of the issues and of the evidence. He can determine whether the counternotices were reasonably issued and whether a total of almost 400 witnesses was necessary.

5. I was asked this morning by Mr Scott, to deal with cost issues left over-by Mr Justice CHAN, I declined to do so. I have made no order and I make no order now effecting the costs orders made by Mr Justice CHAN, in June and July. Those costs orders remain to be determined at trial by the trial judge.

6. I now turn to consider the order nisi which I made in respect of the hearing on 15 July 1996. As stated in my order handed down on 29 July, it was inevitable that the trial be further adjourned. That arose from the failure of the parties to agree a preliminary issue or indeed the factual background necessary for any such issue. It also arose from Mr Justice CHAN's order that the Defendant need not bring the witnesses from the Philippines for the hearing on the 15 July 1996.

7. On reflection, the cost issues arising from the adjournment I granted on 15 July are closely related to the cost issues arising from the earlier adjournments. I therefore consider it sensible to reserve the bulk of the costs incurred on 15 July to the trial judge. However, I make one qualification.

8. On 11 July, those representing the Defendant wrote to the Plaintiff and to the Court to the effect that no preliminary issue could be" argued on the 15 July. Those representing the Plaintiff did not respond to that letter. Indeed, as I understand it, those representing the Plaintiff did not respond to an earlier draft preliminary issue from the Defendant.

9. I do feel, therefore, that the Plaintiff should be responsible for the costs arising between 11 to 15 July. I appreciate that might cause problems for the taxing master, but with the sensible co-operation of both parties it should be possible to identify that part of the costs.

10. I therefore modify the order nisi in the following terms:

11. The costs of and related to the appearance before me on 15 July this year be reserved for determination by the judge at trial, save that the costs incurred during the period 11 to 15 July 1996 in respect of the argument as to whether or not there should be a preliminary issue, be the Defendant's costs in the cause.

12. I think that deals with everything except the costs of today.

MR SCOTT: Well, my Lord, I've endeavoured to write as fast as I can to record your Lordship's ruling, it …

COURT: I hope it was recorded.

[Discussion between court and clerk]

COURT: I will get it typed up.

MR SCOTT: I'm very grateful, my Lord, because …

COURT: In - in effect, everything relating to the 15th has been reserved to the trial judge ...

MR SCOTT: Yes. Well, my Lord, I'll not waste the court's time by extensive arguments about the costs of today, nor am I in issue for the moon and it perhaps is inevitable that the working out of the order took some complication and incentive.

[Discussion between counsel]

MR SCOTT: No, I'm going to suggest that the costs be in the cause of today.

COURT: Yes.

MR MOK: I have no objection.

COURT: Yes. Costs of today are to be costs in the cause. Thank you very much.

MR SCOTT: I'm obliged.