WONG HOI YAN v. MUTUAL BOND CO LTD

DCEC 607/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 607 OF 2006

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IN THE MATTER OF AN APPLICATION

BETWEEN

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REASONS FOR DECISION

1.  This case arose out of an alleged accident at work in early December 2004. The employees’ compensation application was filed in early May 2006. Messrs Ambrose Ng & Co (“AN”) act for the Applicant and Messrs W K To & Co (“WKT”) act for the Respondent.

The Order dated 13 July 2011

2.  Upon the joint written application by the parties, H H Judge Mimmie Chan gave, among others, the following directions on 13 July 2011:

(1)   The Applicant should serve the supplemental list of documents and making discovery of documents including further sick leave and medical notes/records/reports relating to Wong’s medical condition since the accident within 42 days.

(2)   Wong should file and serve a supplemental witness statement in respect of her pre-existing condition for 3 to 4 years prior to the alleged accident; and her current medical condition and related treatment received subsequent to her witness statement dated 12 December 2008 within 42 days.

(3)   The joint orthopaedic expert report should be filed within 35 days after the service of the above supplemental witness statement.

(4)   The parties should submit the next joint written application within 56 days.

3.  In other words, the supplemental list of documents and witness statement from Wong should be filed on or before 24 August 2011; and the joint written application on or before 7 September 2011.

What happened after the above order

4.  None of the above was complied with by the respective deadlines as directed.

5.  Briefly, after the directions dated 13 July 2011 have been given, AN wrote to the hospital on 18 July 2011 requesting for the medical documents and paid the necessary fees on 2 August 2011.  But the hospital indicated that the documents would be ready in 6 to 8 weeks.  That would probably means the deadline for further discovery would not be complied with.

6.  AN took the view that it would be better to file the supplemental witness statement after perusing the medical documents being obtained.  On this basis, AN first wrote to WKT on 23 August 2011 (just prior to the expiry of the deadline of 24 August 2011) seeking their agreement to an extension of time.

7.  Correspondence between the parties ensued during the following few days when, among other things, the question of filing of the Applicant’s supplemental statement was discussed.

8.  This led to WKT’s letter dated 8 September 2011 whereby WKT suggested writing jointly to advise the court of the situation and to apply for extension of time for complying with the previous directions.  Pursuant to the previous directions, they should have filed the joint written application by then in any event.

9.  AN accordingly tendered their draft joint written application with Appendix D on 10 September 2011 for WKT’s consideration.  On 14 September 2011, WKT put forward their proposed amendments.  Amongst others, WKT proposed that the Respondent should have the costs of and incidental to the Applicant’s application for extension of time.

10.  On 16 September 2011, AN replied, confirming no objection to the proposed amendments, except for the proposed costs order.  On 19 September 2011, AN received WKT’s reply.  The dispute in respect of the costs of the application for the extension of time remained; and WKT suggested a separate application to the court for determination of the dispute, if no agreement could be reached.

11.  On 21 September 2011, AN wrote to the court (with notice to WKT), enclosing their Appendix D and seeking directions unilaterally.  In response, WKT wrote to the court on the following day.

12.  In giving directions on paper on 26 September 2011, this court observed that AN in fact had no objection to the amendments to the draft written application, including the proposed directions, last proposed by WKT.  But in view of the dispute between the parties as to costs, AN somehow decided to revert to their original proposed directions.  This court therefore expressed the dismay by the situation.  The parties should have nevertheless submitted a joint written application for directions subject to argument on costs.

The dispute as to costs

13.  AN first proposed costs of the intended joint written application in the cause.  As mentioned, WKT asked for the costs of and incidental to the Applicant’s application for extension of time for filing and serving the supplemental witness statement.  Save that, costs of the joint application should be in the cause.  AN last proposed no order as to costs; but WKT maintained their stance.

14.  In making the directions on paper on 26 September 2011 in line with the proposed directions, I make a nisi order that costs of the application should be in the cause.  If the parties desired to argue costs further, any party might make an appointment with the court within 14 days or the order would become absolute.

15.  Now by seeking to vary the costs order, WTK repeats the costs order that they proposed to AN previously.  By letter, AN reiterated their disagreement.  WKT’s major argument, as they put it, was and still is that their client “should not bear the responsibility of the Applicant’s delay”.

16.  In my written directions on 26 September 2011, I actually acknowledged that the extension of time was necessitated by the inability of the Applicant to obtain the medical documents from the hospital by the deadline as previously directed.

17.  In principle, the party seeking extension of time from the court should be responsible for the costs of such application.  This is because of the fact that the application is taken out for obtaining the court’s indulgence.  However this was not entirely the case here.

18.  On 13 July 2011, the court gave directions including that for the submission of joint written application within 56 days for directions for the further conduct of the case. The parties were expected to submit their joint written application pursuant to §85 of PD 18.2 (if the parties were able to agree on the directions) or §87 (if no agreement could be reached).  As mentioned, such an application must be filed in any event.

19.  The filing of the application within 56 days was the obligation of both parties, irrespective of whether the other directions given would be complied with.  But if it turned out that any of the directions were not complied with or any extension of time would be required, appropriate direction might well be sought at the latest in such joint written application submitted within 56 days.

20.  The parties should have submitted their joint written application irrespective of their dispute, particularly when, as mentioned, the difference (in terms of days) in respect of the extension of time related to no more than the length of the extension to be granted.

21.  Clearly it cannot be said that the application (of which the extension of time formed part) was taken out as the “consequence” of the Applicant’s delay, as if the Respondent was not supposed to take part in the application.  Nor do I think it right to argue that the costs of the part of the application (for extension of time) should be awarded to the Respondent, unless a ‘filleting’ exercise is intended.

Costs incidental to the application

22.  In principle, the Applicant may be said to be responsible for any costs incidental to the application for extension of time for complying with the previous directions.  I can only think of the costs incurred by WKT in engaging in correspondence with AN during the period between 23 August and 22 September in relation to the proposed direction for extension of time.  Miss Chu confirmed that during the hearing.

23.  However, it is noted that the correspondence from 23 August up to 8 September touched upon other issues such as the finalisation of the joint written instruction and the supply of documents to the medical experts.  It would therefore be hard to single out whether any particular part of the correspondence was incidental to the Applicant’s application for extension of time.  Miss Chu was given the chance to go through each letter during this period but conceded that the ‘filleting’ exercise was simply impossible.

24.  Then came AN’s draft joint application as a result of WKT’s letter dated 8 September 2011 and the subsequent correspondence.  The parties would have reasonably been expected to liaise with each other by correspondence with a view to reaching agreement on the directions proposed in the joint written application (of which the extension of time formed part) to be filed as previously directed by the court.  This was exactly what the parties did.  Even WKT described in their proposed answer under item no.2 of the draft joint Appendix D that “the parties had been trying to agree to the proposed directions” and hence the filing of the intended joint application out of time.

Conclusion

25.  I am not convinced that discretion should be exercised by making an order that merely accords with the principle contended by WKT without regard to the actual context.  The costs order made on 26 September 2011 is therefore made absolute.

Costs of this hearing

26.  The Respondent has failed in its attempt to vary the costs order.  It has also failed to strike a proper balance between the substance of what it sought to obtain from the costs order that it insisted upon on the one hand and the risk of further, and probably more, costs as a result of this hearing on the other hand.  That was its judgment and it now has to bear the consequence.  The Respondent should pay the Applicant’s costs of today’s hearing, which is summarily assessed at HK$   2,000 and payable within 14 days.