GRACE PANDAN ABLAN v. SKANSKA - SHUI ON - BALFOUR BEATTY JOINT VENTURE AND ANOTHER

1998, No. PI335

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H E A D N O T E

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Approval of settlement on behalf of a person under a disability

Procedure and practice to be followed. Reminder of requirements under Order 80 rules 10 and 11.

Compromise subject to approval reached where trial imminent - counsel's and solicitors duties to parties and to court.

Advice of counsel in support of approval.

Evaluation of dependency in light of subsequent death of dependent. Need for explanation of conclusions reached.

Need for assurance that there will be no deduction from damages to be approved.

1998, No. PI335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. PI335 OF 1998

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DIRECTION AND DECISION

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1. Claims by or on behalf of infants and other persons under a disability require approval by the Court under Order 80 rules 10/11. It should not be assumed by counsel and solicitors for the parties that the Court will "rubber stamp" settlement simply because counsel has recommended acceptance of the offer put forward. It is necessary for the parties, and both if called upon, to explain how the proposed settlement is arrived at and why the Court should approve it.

2. If a settlement subject to the Court's approval is reached before proceedings have been instituted, an Originating Summons setting out all material particulars of the person or persons under a disability and the proposed settlement, is the appropriate means of bringing it before the court. Documents, including counsel's Advice, which are material to the Court's consideration, must be lodged in good time. A Memorandum is more often than not necessary if the proposed settlement is not at the "door of the court".

3. If the proposed settlement has been achieved after the issue of proceedings but well before trial an ordinary summons seeking the Court's approval is required supported by the documents for the Judge (or Master) to consider. It is of course not appropriate for the Plaintiff counsel's Advice and the Memorandum to be served on the Defendant even though he or they will be supporting the application for approval. The Summons should follow the format, with necessary adaptations, set out in Practice Forms 170/171 of section 1B of the Supreme Court Practice vol. 2 (1999).

4. Where settlement subject to approval has been reached shortly before trial and whether or not it is possible to obtain an advance date for the hearing of the summons for approval, then it must be borne in mind that, in the event of the settlement not being approved, the trial will proceed. It will not be vacated or adjourned simply for further negotiations to take place if the settlement is not approved.

5. In this case, liability had been admitted some months ago and assessment was to be made by me on Friday 15th October. That was the date fixed by me on the 6th July 1999 when counsel appeared for the Plaintiff. On or about the 9th October, a summons was issued by the Plaintiffs Solicitors - it was not in the proper form because it was not a summons seeking the court's approval.

6. It was returnable on the date on which I was to assess the damages. It was apparent that approval would have to be obtained because there was at least one infant dependant. In any event, given the fact that the Plaintiff was a widow living with her children in the Philippines, prudence suggested a court should be asked to consider the matter even if there had not been an infant dependant.

7. If I were not to approve the settlement I would then proceed to an assessment of damages. The day had been set aside. The case was accordingly listed in open court for assessment of damages.

8. On the day concerned only solicitors for the two parties were in attendance. In due course counsel for the Plaintiff arrived and explained that he did not think his attendance was required. I had been informed by the solicitor for the Plaintiff that counsel had been briefed for the assessment of damages and so I assume has been paid, or will be paid his brief fee. He had advised on the proposed settlement as recently as, the 14th October. He knew the assessment was to take place on the next day, the 15th October. He must have known that if approval was not forthcoming the assessment would proceed. It is counsel's duty, knowing that he has a commitment to appear on behalf of the Plaintiff on a date fixed well in advance, and in his diary, to ensure that the matter proceeds properly and that he is available to represent the interests of the party on whose behalf he is briefed to appear. There is a Court List published to assist. Inquiry may be made of my clerk. The instructing solicitors can also be asked to make inquiry. But counsel's duty is paramount.

9. Counsel should understand that having rendered his Advice supporting the settlement less than 24 hours before the hearing for assessment, it was likely that he would be called upon to justify his Advice. In any case he had been briefed to appear. His obligation was quite clear.

10. As it turned out there were clearly matters for further inquiry. The Advice did not contain all the requisite information for approval. It left a number of questions unanswered, one of which concerned the extent of the dependency following the recent tragic loss to the Plaintiff widow of her 18 years old son. Part of the Advice was premised on there being a substantial reduction in the dependency figure by reason of his death. What that is is far from clear. It is a misconception that the dependency figure is reduced wholly or even substantially by the death or the independent financial existence of a member of a family. Common sense and logic dictates that the available money forming part of the dependency in respect of such a person becomes available for the dependency of the remaining members of the family. In theory it could become available exclusively for them. It is a disservice to a dependant family who has lost its breadwinner to assume that it would not receive the benefit in one form or another, wholly or in part, of a sum of money formerly applied to a dependant infant who is no longer dependant financially to a given extent. That matter I set out as an indication of how much importance a Court sets by a considered appraisal of the interests of a person or persons under a disability.

11. The widow has, in view of her tragic loss of her young son, understandably said she cannot travel to Hong Kong at present. For some reason I do not understand this factor has entered the equation of valuation by those acting for her. In my view it is a factor wholly to be disregarded for that purpose. It may be that her evidence will not be required. Alternatively, if it were to be regarded as essential, I would of course adjourn the assessment until such time as she felt able to attend. No claimant's loss is to be bargained over by reason of a soluble problem in logistics, consequent upon a further tragedy.

12. As a consequence of what occurred in respect of this case, and it must not happen again if the obvious consequences are to be avoided, I had to adjourn the matter until today, Tuesday 19th October at 12 noon.

13. I have given my approval to the settlement proposal having explored the matters which had not been covered fully and having been assured that there will be no deduction from the Plaintiff's damages as a consequence of wasted costs, or in respect of any other matter.