LEE SAU LING v. CHAN MAN SANG AND ANOTHER

HCMP 1731/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANCEOUS PROCEEDINGS NO. 1731 OF 1998

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D E C I S I O N

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1. On 30 June 1999, there was scheduled to be heard before me a Vendor and Purchaser's Summons between the Plaintiff and the Defendants.

2. The Defendants had meanwhile issued Third Party proceedings against their former solicitors.

3. However, by 30 June 1999, the Third Party proceedings were not yet ready. Accordingly, the Defendants asked for an adjournment of the hearing of the main action so that the Third Party proceedings could be carried on in tandem.

4. It is right in principle and in practice that Third Party proceedings against solicitors for their alleged negligence in a conveyancing transaction should be heard at the same time as the main action. Accordingly, on 30 June 1999, I made an order comprising various directions, but in relation to the costs of the Plaintiff on that day, I ordered that the costs of the Plaintiff for that hearing be paid "by the unsuccessful litigant in the Third Party proceedings". The Plaintiff, of course, should get his costs because the adjournment was to his detriment and there was no reason why he should have to suffer the loss of costs for that day.

5. But it subsequently transpired that the Third Party proceedings were settled as between the Defendants and the Third Party. On 8 May 2000, a consent order was made by which it was agreed that the Defendant do withdraw the Third Party proceedings against the Third Party.

6. Subsequently on 15 May 2000, there was also a consent order between the Plaintiff and the Defendants, but I do not need to concern myself with the terms of that consent order.

7. The matter has now come back before me today because the Plaintiff wishes to have his costs of 30 June 1999 and the dispute is whether it is the Defendants or the Third Party who ought to pay those costs.

8. Mr Yip's submissions for the Defendants are that the joinder of the Third Party was proper and the only reason why the Third Party proceedings were withdrawn was because it was discovered that the Defendants could not accept payment in paid in by a Third Party and therefore, the withdrawal of the Third Party proceedings was not due to lack of merits. Mr Yip submits that because the merits had not been gone into in the Third Party proceedings, therefore, there was no "unsuccessful litigant" in the Third Party proceedings.

9. In my view, the Court really is not concerned with the merits of the Defendants' claim against the Third Party. If the Defendants choose to withdraw Third Party proceedings, then they are to be regarded as the unsuccessful litigant. There has been no determination by the Court of the Third Party proceedings, and there has been no admission of liability by the Third Party to the Defendants so it is really, in my view, for the Defendants to agree with the Third Party to an order that would reflect the Third Party's admission of liability so as to render the Third Party an unsuccessful litigant and so as to come within the terms of the order of 30 June 1999. That was not done.

10. As I have said, there has been no determination of liability in the Third Party proceedings and there has no admission of liability, and all that has been done is that the Defendants have withdrawn the Third Party proceedings. Therefore, in my view, the costs of the Plaintiff for 30 June 1999 ought to be paid to the Plaintiff by the Defendants.

11. I make this order, not under the slip rule, but simply under the Court's inherent jurisdiction as a clarification of my order of 30 June 1999 in the circumstances which have transpired since then.