MOK HEE YUK v. GAMMON SKANSKA LTD AND ANOTHER

HCPI 502/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 502 OF 2004

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D E C I S I O N

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1.  This is an application by the defendants for various relief in relation to costs.  Only paragraph 1(c) of the defendants’ summons of 20 June 2006 is disputed.  I therefore make an order in terms of paragraphs 1(a) as amended and 1(b) of the defendants’ summons.

2.  In paragraph 1(c), the defendants seek an order that the plaintiff do pay the defendants their costs of this action as from 27 November 2005 onwards to be taxed on the High Court scale.  The reason being that the defendants’ payment into court up to 26 November 2005 exceeded the judgment sum which I gave after trial.  The plaintiff however argues that he should only bear a portion of these costs as from 27 November 2005.

3.  The plaintiff claimed that he could not work in construction sites for psychiatric reasons.  He made this claim with the support of medical reports.  I found against him on this claim.  I also found that the medical evidence was obtained by his non-disclosure of the fact that he had gone through a full-time formwork building training course from 19 July 2004 to 11 November 2004.  I disbelieved him on his allegation that he could not resume working in construction sites for psychiatric reasons. 

4.  The fact that he had gone through the formwork building training course in the Construction Industry Training Association (hereinafter called “CITA”) was only known to him.  He was however forced to reveal this because the defendants’ investigator had followed him for three days on 18, 20 and 21 September 2004 and found that he had gone into CITA very early in those mornings.  The investigator also waited for him on one day and found that he only came out of CITA at about 4 pm. 

5.  The investigation report and the accompanying video were ready on about 23 September 2004.  The report did not say what he was doing inside CITA, probably because the investigator had not gone in there. 

6.  The report and video were only disclosed on 13 February 2006.  The defendants made a further payment of $140,000 into court on that day under Order 22 of the Rules of the High Court, which brought the total payment in to $1,740,000.  The videotape was delivered to the plaintiff’s solicitors on 14 February 2006. 

7.  The plaintiff did not accept the payment in.  He also did not apply to take the case out of the running list for further medical evidence on his psychiatric ability to work in constructions sites.  The disclosure of the investigation report and video had no affect on him. 

8.  On 23 February 2006 he disclosed the certificates he obtained from CITA for having successfully completed the formwork building training course.  On the same day the defendants made a further payment into court of $460,000, which brought the total to $2.2 million, but the plaintiff still did not accept it.

9.  The trial of the action commenced on 28 February 2004.  The plaintiff thus had the benefit of 14 days to consider whether to accept the sum paid in on 13 February 2004 in the light of the disclosure of the investigation report and video, but he chose not to accept it.  It is also not disputed that at the commencement of the trial, the defendants still suggested that the plaintiff could settle the case by accepting the payment in of $2.2 million, but the plaintiff declined.

10.  I am referred to Ford v GKR Construction Ltd & Ors [2000] 1 WLR 1397, a decision of the English Court of Appeal.  In that case a payment was made into court in mid-July 1998.  The trial commenced on 17 November 1998 and was adjourned on the next day.  The defendant then engaged investigators to follow the plaintiff.  As a result of the investigator’s evidence, the award given by the court was below the payment in.  The trial judge absolved the plaintiff from any dishonesty but concluded that the video evidence showed that her ability to manage was significantly quicker than what she was prepared to admit.  The trial judge awarded the plaintiff all the costs despite her failure to beat the payment in.  The Court of Appeal held that the judge was entitled to so order because fairness demanded that the claimant should have a reasonable opportunity to deal with those allegations of the defendant as supported by the investigator’s evidence, given the fact that the plaintiff had not been acting dishonestly and was entirely reasonable.

11.  I am also referred to Ho Moh v Tam Yiu Keung trading as Yiu Sun Construction Engineering Company & Anor, HCPI 1251 of 1998, a decision of Master Lung.  That was a case of late discovery of videotape by the defendant.  It was only disclosed at the trial and it was too late for the plaintiff to accept the payment into court.  Master Lung ordered the plaintiff to bear 60 per cent only of the defendant’s costs.  He did not agree that the plaintiff should bear all the costs for the reason that the defendant had been late in disclosing the video evidence to the plaintiff.

12.  However, the present case is different.  The plaintiff was given 14 days to consider the report and video and he chose not to accept the payment in up to $1.740,000 from 13 February 2006 or the higher sum of $2.2 million from 23 February 2006 onwards.  Obviously, he was not moved by the investigation report and video and the payments in. 

13.  Mr Chan argued that if the report and video were disclosed earlier, the plaintiff could have sought further medical evidence on his psychiatric ability to work in construction sites.  However, he had 14 days to consider his position and he did not apply to postpone the trial.  In fact, this case was in the running list and he could have applied to take it out of the list on the ground of the need for further medical evidence.  He did not.  It was thus obvious that he was undeterred by the investigation report and video and did not consider whether he should seek further medical evidence to justify a tuning-down of the quantum that he was seeking. 

14.  In the premises I think this case is distinguishable from the two cases I have mentioned above.  I cannot accede to the plaintiff’s submissions that he should only bear a portion of the defendants’ costs from 27 November 2005 onwards.  I take the view that he should bear the full costs of the defendants from that date onwards.

15.  Costs of today be to the defendants.

Discussion re costs of summons

16.  Since neither side is completely successful, for bad drafting or otherwise, I make no order as to costs on the defendants’ summons.  I order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.