Case Details

Citation

WONG SHU KEUNG v. LI SING MING, HCPI 610/2016

Case Number

HCPI 610/2016

Court

Court of First Instance

(CFI)

Decision Date

27 May 2021

Parties

Applicant(s):

WONG SHU KEUNG

Respondent(s):

LI SING MING

WONG SHU KEUNG v. LI SING MING

[2021] HKCFI 1798

Court of First Instance27 May 2021

HCPI610/2016 WONG SHU KEUNG v. LI SING MING

HCPI 610/2016

[2021] HKCFI 1798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 610 OF 2016

________________________

BETWEEN
	WONG SHU KEUNG	Plaintiff
	and
	LI SING MING	Defendant

________________________

Before : Hon Marlene Ng J in Chambers (paper disposal)

Date of joint written submissions by both parties : 27 May 2021

Date of Handing Down Decision on Costs : 30 June 2021

____________________

DECISION ON COSTS

____________________

I. INTRODUCTION

1. The plaintiff (“P”) claimed that on 11 March 2010 he suffered the following accident (“Accident”) and thereby sustained personal injuries, loss and damages:

(a) P in the course of his employment was assigned to carry out welding work at a garbage recycling site at / near to Ng Chow South Road, Ping Che, Fanling New Territories (“Site”);

(b) P was on a concrete block next to a large/heavy piece of vertically erected metal wall of about 40ft in length and 7½ft in height that formed the Site’s boundary;

(c) P heard the sound of the engine of a hydraulic shovel/excavator nearby being started;

(d) the metal wall suddenly fell over and hit P.

II. HCPI686/2010

2. On 28 December 2010, P commenced HCPI686/2010 to claim against Kam Luen Consolidator Limited (“Kam Luen”) for personal injuries, loss and damages as a result of the Accident on the basis that the Accident was caused by the negligence, breach of statutory duty, breach of common duty of care and breach of contract of employment by Kam Luen and its representatives, agents and/or servants.

3. On the same day, P filed his Statement of Claim (“SoC”), Statement of Damages (“SoD”), and Medical Reports. The SoC alleged that:

(a) Kam Luen carried on electronic garbage recycling business at the Site;

(b) P was employed by Kam Luen as a general worker at the Site;

(c) Kam Luen was the contractor of the Site within the meaning of the Factories and Industrial Undertakings Ordinance Cap 59 (“FIUO”) and the subsidiary legislation thereunder including the Construction Sites (Safety) Regulations Cap 59I (“CSSR”), so (i) the works for which Kam Luen was responsible at the Site were industrial undertakings, and (ii) Kam Luen was the proprietor of the industrial undertakings for the purposes of FIUO and CSSR;

(d) Kam Luen and its servants, representatives and agents were persons responsible for the workplace at the Site for the purpose of the Occupational Safety and Health Ordinance Cap 509 (“OSHO”) and the subsidiary legislation thereunder, including the Occupational Safety and Health Regulations Cap 509A (“OSHR”);

(e) Kam Luen had control/occupation of the Site or was otherwise the occupier of and entitled to possession/control of the Site for the purpose of the Occupiers Liability Ordinance Cap 314 (“OLO”).

4. Although Kam Luen’s solicitors on 21 February 2011 filed Notice to Act, Kam Luen on 10 March 2011 acted in person in filing Acknowledgment of Service to give notice of intention to defend. On 8 September 2011, this court as PI Master entered judgment on liability in favour of P against Kam Luen for damages to be assessed with costs on liability reserved (“HCPI686/2010 Liability Judgment”), and granted case management directions for further conduct of the case. On 23 September 2011, MSIG Insurance (Hong Kong) Limited (“MSIG”), Kam Luen’s employees’ compensation (“EC”) insurer, was informed about the HCPI686/2010 Liability Judgment.

5. On 20 January and 5 June 2012 respectively, P filed his Revised SoD and Re-Revised SoD. Kam Luen elected not to file/serve any Answer to P’s Re-Revised SoD.[1] On 22 November 2012, P filed Notice of Appointment of Assessment of Damages, which assessment of damages was scheduled to be heard by Master J Wong on 10 April 2013.

6. On 3 April 2013 (ie about a week before the scheduled hearing of the assessment of damages on 10 April 2013), MSIG applied to be joined as the 2^nd defendant. The supporting affidavit by MSIG’s solicitor Tai Bing Shun (“Tai”) filed on the same day explained that:

(a) MSIG issued a EC policy to Kam Luen for the period of insurance from 25 June 2009 to 24 June 2010;

(b) when Kam Luen applied for such EC policy, it declared that it operated a transportation business, and that its employees included 1 tractor driver, 1 lorry driver and 1 outdoor clerk, but welding work (which P claimed was the type of work he was performing at the time of the Accident) was not a type of work reasonably anticipated in a transportation business;

(c) MSIG could not take over conduct of the defence otherwise it might have waived its right against Kam Luen in terms of policy liability (which suggested that MSIG had repudiated liability);

(d) but MSIG still had an interest in HCPI686/2010 as P might seek direct enforcement against MSIG as the EC insurer to satisfy judgment against Kam Luen in favour of P under the Employees Compensation Ordinance Cap 282 (“ECO”).

7. MSIG’s summons was returnable at the hearing of the assessment of damages in HCPI686/2010 before Master J Wong on 10 April 2013. Although P opposed the application, Kam Luen did not. The learned master allowed MSIG’s application with costs reserved on the basis that (a) Kam Luen’s solicitors had not taken active steps to defend P’s claim due to Kam Luen’s instructions, (b) permission for MSIG’s solicitors to cross-examine P and to make submissions without introduction of new evidence would facilitate the court in assessing damages, and (c) the hearing of the assessment of damages should not be adjourned,[2] and the learned master then proceeded to hear the assessment of damages.

8. On 6 May 2013, Master J Wong handed down reasoned judgment on the assessment of damages. Judgment was entered against Kam Luen and MSIG to pay awarded damages in the sum of $1,485,972 with interest to P with a costs order nisi (“HCPI686/2010 Damages Judgment”). At the hearing before Bharwaney J on 15 October 2018 referred to as the “2018 Hearing” in paragraph 33 below, P through his counsel conceded that the HCPI686/2010 Damages Judgment should have been entered against Kam Luen alone, and that such judgment was mistakenly entered against MSIG because at the assessment hearing MSIG “has made the position very clear that they are going to dispute about the validity of the insurance policy”.[3] Nevertheless, I note that MSIG merely participated in the assessment of damages and did not apply to set aside the HCPI686/2010 Liability Judgment.

III. DCEC638/2010

9. On 9 June 2010, P commenced DCEC638/2010 against Kam Luen to claim for EC.[4] Since 11 March 2011, Kam Luen was self- represented by its director Li Ho Cheong (“Li Jr”). On 23 June 2011, DDJ Thomas Lee granted case management directions in line with those in HCPI686/2010 in relation to discovery and expert medical evidence.[5] On 5 October 2012 when Li Jr on behalf of Kam Luen appeared before HHJ Poon (as he then was), judgment on liability in DCEC638/2010 was entered by consent in favour of P against Kam Luen.[6]

10. On 2 July 2013, MSIG applied to be joined as the 2^nd respondent in DCEC638/2010.[7] In the supporting affidavit of MSIG’s solicitor Tai filed on the same day (“Tai Aff”), MSIG relied on the written submissions dated 12 April 2013 by Kam Luen’s former solicitors in HCPI686/2010 (“Kam Luen Submissions”) that alleged (a) P was engaged by Kam Luen as a messenger and welding work was outside the ambit of his employment with Kam Luen, (b) P’s claimed Li Jr’s father Li Sing Ming (“Li Sr”) asked him to do welding work, so (c) Li Sr was P’s employer for welding work and Kam Luen was his employer for messenger work, which meant the Accident occurred in the course of P’s employment with Li Sr and not with Kam Luen.[8] MSIG made clear its intended joinder as the 2^nd respondent in DCEC638/2010 was to defend P’s claim in such proceedings. On 25 July 2013, DDJ Eric Tam granted the joinder application.[9]

11. On 1 August 2013, MSIG applied by summons in DCEC638/2010 for an order that the judgment on liability entered by consent on 5 October 2012 be set aside.[10] P opposed the application, and Li Jr on behalf of Kam Luen also insisted on the validity of such judgment on liability.[11] MSIG’s summons came for hearing before HHJ Kent Yee on 18 October 2013. HHJ Kent Yee was aware of the HCPI686/2010 Liability/Damages Judgments which MSIG did not apply to set aside. On 31 October 2013, the learned judge handed down reasoned judgment, and ordered that (a) the judgment on liability entered by consent in DCEC638/2010 between P and Kam Luen be set aside, and (b) MSIG be allowed to challenge both liability and quantum of P’s claim in DCEC638/2010.[12]

12. On 29 November 2013 and 27 June 2014 respectively, leave was granted for Li Sr to be joined as the 3^rd respondent and for the Employees Compensation Fund Board (“Board”) to be joined as the 4^th respondent in DCEC638/2010.[13] By this time, P’s Re-Amended Application in DCEC638/2010 pleaded that at the time of the Accident he was employed by Kam Luen and/or Li Sr even though the HCPI686/2010 Liability/Damages Judgments had not been set aside.[14]

13. The trial of P’s EC claim in DCEC638/2010 took place on 11 September 2014. Kam Luen did not appear at the trial, but by its Answer Kam Luen (a) admitted P was under its employ at the time of the Accident, (b) claimed the Accident did not arise out of and in the course of such employment, and (c) denied the circumstances of the Accident (since P allegedly called Li Jr shortly after the Accident to say he fell from a flight of stairs and could not recall what happened and why he fell). MSIG denied (i) P was employed by Kam Luen, or (ii) the Accident happened in the course of P’s employment with Kam Luen when P in fact was a general worker working for Li Sr. Li Sr did not file any Answer or witness statement, and did not appear at the trial. The Board did not admit any aspect of P’s claim.[15]

14. On 12 November 2015, DDJ Brian Mak handed down reasoned judgment in DCEC638/2010, and granted judgment for (a) Li Sr to pay P EC in the sum of $326,558.30 with interest, (b) dismissal P’s claim against Kam Luen, and (c) a costs order nisi among the parties[16] (“DCEC638/2010 Judgment”).[17] The learned judge found (i) Li Sr was P’s employer from 1 January 2010 up to the time of the Accident, (ii) Kam Luen was not P’s employer, and (iii) P’s injuries from the Accident arose out of and in the course of his employment with Li Sr.[18]

IV. HCPI610/2016 and HCA2384/2018

15. On 31 May 2016, P commenced the present action (HCA610/2016) against Li Sr as employer, tortfeasor and contractor for negligence, breach of statutory duty, breach of the common duty of care and breach of P’s contract of employment with Li Sr in relation to personal injuries, loss and damages he suffered as a result of the Accident.

16. On 2 February 2017, P filed his SoC alleging inter alia that:

(a) Li Sr carried on electronic garbage recycling business and/or construction work at the Site;

(b) P was employed by Li Sr as a general worker at the Site;

(c) D was the contractor of the Site within the meaning of FIUO and the subsidiary legislation thereunder, including CSSR, so (i) the works for which Li Sr was responsible at the Site were industrial undertakings, and (ii) Li Sr was the proprietor of the industrial undertakings under FIUO and CSSR;

(d) Li Sr and his servants, representatives and agents were persons responsible for the workplace at the Site for the purpose of the OSHO and the subsidiary legislation thereunder, including OSHR;

(e) Li Sr had control/occupation of the Site or was otherwise the occupier of and entitled to possession/control of the Site for the purpose of OLO.

17. In the SoC, P also pleaded that:

(a) after the Accident, Li Sr in breach of the implied terms of the employment contract and in breach of law failed to lodge Form 2 to report the Accident to the Labour Department (“LD”), and did not disclose his identity/capacity as employer to P;

(b) P and LD were misled by Li Sr “and his cronies” into believing and accepting Kam Luen to be P’s true employer at the time of the Accident;

(c) Li Jr was a director of Kam Luen;

(d) Kam Luen as P’s purported employer lodged a Form 2 to report the Accident to LD;

(e) P commenced HCPI686/2010 against Kam Luen to claim for personal injuries, loss and damages as a result of the Accident, and upon Kam Luen’s admission of liability (ie the HCPI686/2010 Liability Judgment) obtained the HCPI686/2010 Damages Judgment against Kam Luen on 6 May 2013;

(f) Li Sr’s identity / full name were made known to P on/about 2 July 2013;

(g) on 12 November 2015, DDJ Brian Mak handed down the DCEC638/2010 Judgment in respect of P’s claim for EC against Kam Luen and subsequently also against Li Sr in DCEC638/2010, and the learned judge found that P’s true employer at the time of the Accident was Li Sr and not Kam Luen;

(h) by reason of Li Sr’s misconduct, negligence and/or breach of contract “throughout the matters and proceedings in relation to the Accident”, P wasted costs in bringing HCPI686/2010 against Kam Luen, and he would claim against Li Sr for all costs he incurred in HCPI686/2010.

18. So P in the present action claimed against Li Sr for (a) personal injuries, loss and damages as a result of the Accident, and also for (b) wasted costs that he incurred by HCPI686/2010.

19. On 23 February 2017, Li Sr’s solicitors on behalf of Li Sr filed Acknowledgment of Service to give notice of intention to defend. By the order of Master Roy Yu dated 1 March 2017, case management directions were granted for filing pleadings, making discovery, exchanging witness statements, and considering need for expert evidence.

20. Upon extension of time granted by Master Roy Yu by way of an unless order dated 10 May 2017, Li Sr by his solicitors filed his Defence on 18 May 2017 to deny liability. Although Li Sr agreed he was at all material times carrying on transportation business, he denied the matters in paragraph 16(a)-(b) and (d)-(e) above, and in particular denied he employed P as a general worker at the Site at all material times. Instead, Li Sr claimed that all material times P was employed by Kam Luen, and Lot 431 DD77 (which was stated in the accident report dated 4 August 2010 to be the Site of the Accident) was at all material times owned by the estate of Wong Po Sun deceased, leased to Fu Yang Agency Limited, and sub-let to Ma Shing Hang.

21. Further, Li Sr in his Defence in the present action pleaded inter alia that:

(a) P commenced HCPI686/2010 to claim against Kam Luen as his employer for personal injuries, loss and damages in relation to the Accident;

(b) on 6 May 2013, P obtained final judgment against Kam Luen for the sum of $1,485,972 in HCPI686/2010 (ie the HCPI686/2010 Damages Judgment);

(c) P was therefore “estopped” from alleging that in relation to the Accident he was at all material times employed by Li Sr;

(d) further or alternatively, by reason of the above matters, HCPI686/2010 and the HCPI686/2010 Damages Judgment, it was an abuse of the court’s process for P to commence the present action against Li Sr in relation to the Accident, so the present action was liable to be struck out.

22. Li Sr in his Defence in the present action admitted (a) his son Li Jr was a director of Kam Luen and (b) Kam Luen as P’s employer submitted to LD a Form 2 in relation to the Accident, but denied (c) he was in way obliged to submit Form 2 to LD in relation to the Accident, (d) P and LD “were misled by [Li Sr] or his cronies (whom [P] has failed to identify or particularise) either as alleged or at all” and/or (e) his identity and/or full name was made known to P on/about 2 July 2013. It was averred that if P were employed by Li Sr at the time of the Accident, he would have known of such fact.

23. Li Sr reiterated the matters in paragraphs 10-11 above in his Defence in the present action, and pleaded that P must have known of the existence of Li Sr since April 2013 at the latest. Li Sr averred he did not participate in DCEC638/2010 and was absent at the trial before DDJ Brian Mak. He also denied any liability to pay any wasted costs that P allegedly incurred in HCPI686/2010. Li Sr further averred P’s claim against him in the present action was time-barred as the Accident took place on 11 March 2010, and (without prejudice to the aforesaid defences) Li Sr also claimed P was contributorily negligent.

24. On 12 July 2017, P filed his Reply, and averred as follows:

(a) Li Sr was liable to P jointly and severally with other putative and notional tortfeasor(s)/defendant(s) involved in the Accident, and when the HCPI686/2010 Damages Judgment was not satisfied by 1 tortfeasor/defendant who was liable to pay the awarded damages to P, P was entitled to claim and/or continue to pursue his claim against other tortfeasor(s)/defendant(s) including Li Sr for any unpaid amount;

(b) since P had not received any payment of the damages awarded to him under the HCPI686/2010 Damages Judgment, the principle of estoppel had no relevance or application, and it was unfair, misconceived and unsubstantiated to allege P abused the court’s process;

(c) Li Sr “and his cronies” all along deliberately concealed Li Sr’s true identity in that (i) Kam Luen did not file any pleadings and/or witness statements in HCPI686/2010, (ii) the contested factual matters in the Kam Luen Submissions should not carry or be given any weight, (iii) the author of the Kam Luen Submissions shied away from providing Li Sr’s full name and instead named him as “one Mr Lee (not being [Li Jr], who is the sole director and shareholder of [Kam Luen]”, which showed clear unwillingness to disclose Li Sr’s true identity, (iv) as a result, without knowing the true identity of Li Sr and with a view to avoiding confusion between Li Sr and Li Jr (Kam Luen’s director), HHJ Kent Yee in his reasoned judgment in DCEC638/2010[19] referred to Li Sr as “Li Senior” and Li Jr as “Li Junior”, (v) up until the hearing before HHJ Kent Yee in DCEC638/2010 on 18 October 2013, neither Li Sr nor “his cronies” were prepared to come forward to tell the court Li Sr’s true identity, so (vi) the earliest date P came to know the identity of Li Sr was on/about 2 July 2013 when P’s solicitors received the Tai Aff filed by MSIG in DCEC638/2010;

(d) pursuant to section 27(4) of the Limitation Ordinance Cap 347 (“LO”), the limitation period for P’s claim against Li Sr in respect of the Accident would have expired on/about 2 July 2016, so P’s claim in the present action was not time-barred;

(e) all necessary legal documents in DCEC638/2010 had been served on Li Sr who had full knowledge of such proceedings and the trial therein, so it was Li Sr’s own decision not to participate in those proceedings, and in fact his interests had been properly/duly taken care of by counsel for the Board who tried his best to deny Li Sr was P’s employer, which stance was eventually rejected by the trial judge DDJ Brian Mak;

(f) but even if P’s claim against Li Sr in the present action were time-barred (which P denied), the court should exercise its discretion to dis-apply or override the time bar pursuant to section 30 of the LO having regard to inter alia the following: (i) from outset P had been misled and given wrong information as to the true identity of his employer, and was led to believe Kam Luen was his employer, (ii) P sought legal assistance almost immediately after the Accident and commenced HCPI686/2010 within the same year so there was no delay/tardiness on the part of P or his legal advisers, (iii) the duration of the delay was not excessive having regard to “the convoluted course of the fact-finding exercise and the number of satellite litigations involved”, (iv) Li Sr was the actual tortfeasor personally involved in the Accident, and the detailed accident report prepared by LD’s occupational safety officer showed there was “in fact very little room for [Li Sr] to maoeuvre” so it was unlikely that Li Sr would suffer evidential prejudice as a result of any delay, (v) Li Sr’s conduct had made it difficult for P to find out his true identity, and (vi) P suffered serious injury as a result of the Accident so it would be unfair if he were denied proper legal redress.

25. On 29 June 2017, Master Roy Yu granted case management directions, including directions for expert medical evidence on quantum and directions for further pleadings on quantum.

26. On 27 February 2018, Master Roy Yu ordered a stay of the present action for 6 weeks due to concerns over the HCPI686/2010 Liability/Damages Judgments in favour of P against Kam Luen in respect of the Accident. On 3 April 2018, P’s solicitors wrote to the court, saying they had sought counsel’s advice as follows, and proposing case management directions for continued conduct of the present action, including collating expert evidence, filing/serving revised pleadings on quantum, preparing trial bundle index, etc:

(a) P was misled by Li Jr (ie Li Sr’s son and Kam Luen’s director/ shareholder) into believing his employer was Kam Luen, and Kam Luen deliberately admitted liability in HCPI686/2010 whereupon P obtained the HCPI686/2010 Liability Judgment for damages to be assessed against Kam Luen;

(b) in the meantime, P commenced DCEC638/2010 against Kam Luen, but (i) “certain facts” were subsequently revealed, and MSIG, Li Sr and the Board were joined as the 2^nd, 3^rd and 4^th respondents, (ii) at the trial on 11 September 2014 MSIG adduced evidence to show Li Sr rather than Kam Luen was P’s employer (which fact was hidden from P all along), and (iii) on 12 November 2015 DDJ Brian Mak handed down the DCEC638/2010 Judgment in favour of P against Li Sr who was found to be P’s employer at the material time (see paragraphs 10-14 above);

(c) notwithstanding the HCPI686/2010 Damages Judgment, P only received EC and had not recovered any common law damages;

(d) P’s counsel advised that res judicata estoppel did not apply to P since (i) Li Sr was never a party to HCPI686/2010 and (ii) P had not recovered common law damages from anyone despite the HCPI686/2010 Damages Judgment in his favour. In this respect, P’s counsel placed reliance on sections 5-6 of the Civil Liability (Contribution) Ordinance Cap 377 (“CLCO”) and discussions in learned textbook on successive claims against joint and/or several tortfeasors, which it was said established the principle that a claim against a tortfeasor would not bar further claim against the another tortfeasor.

27. At the hearing on 9 April 2018, Master Roy Yu adjourned the Checklist Review (“CLR”) to 21 August 2018 for the parties to report to him on the manner of disposal of HCPI686/2010, and for P to inform Li Sr about his stance 4 weeks before such adjourned CLR. On 24 July 2018, P’s solicitors wrote to inform Li Sr’s solicitors that at the next CLR P would give an undertaking to the court not to enforce the HCPI686/2010 Damages Judgment. On 1 August 2018, Li Sr’s solicitors replied that such proposal failed to address the concerns raised by Master Roy Yu, ie that it was not whether P would or would not enforce the HCPI686/2010 Damages Judgment, but whether “it is an abuse of Court process and also irregular to have a conflicting judgment in existence in respect of the same alleged Accident”. Li Sr’s solicitors further noted P still maintained a claim in the present action against Li Si for costs in obtaining the HCPI686/2010 Liability/Damages Judgments. Li Sr’s solicitors pressed P’s solicitors for P’s proposal on how to dispose of the HCPI686/2010 Liability/Damages Judgments, and for confirmation as to whether P would set aside the HCPI686/2010 Liability/Damages Judgments and/or withdraw his claim in HCPI686/2010.

28. At the CLR on 21 August 2018, Master Roy Yu granted the following order (“Yu Order”):

(a) P’s application to proceed with the present action upon P’s undertaking not to enforce the HCPI686/2010 Liability/Damages Judgments be refused;

(b) the present action be adjourned sine die with liberty to restore pending P setting aside the HCPI686/2010 Liability/Damages Judgments;

(c) costs of the CLRs on 27 February, 9 April and 21 August 2018 be to Li Sr, and P’s own costs be taxed in accordance with Legal Aid Regulations.

29. On 10 September 2018, P filed Notice of Appeal against the Yu Order, and sought the following reliefs on appeal (“Appeal”):

(a) the Yu Order be set aside, and the present action be restored and continued notwithstanding the existing HCPI686/2010 Liability/ Damages Judgments;

(b) alternatively, the Yu Order be set aside, and the present action be restored and continued (i) notwithstanding the existing HCPI686/2010 Liability/Damages Judgments and (ii) upon P’s undertaking not to enforce such judgments;

(c) further alternatively, the Yu Order be set aside and the present action be restored and continued (i) notwithstanding the existing HCPI686/2010 Liability/Damages Judgments and (ii) upon P’s undertaking to forthwith start a fresh action to set aside such judgments;

(d) costs of the Appeal together costs of the CLRs on 27 February, 9 April and 21 August 2018 be to P, and P’s own costs be taxed in accordance with Legal Aid Regulations.

30. On 9 October 2018, Li Sr’s solicitors sent a “without prejudice as to costs” letter to P’s solicitors in relation to the Appeal, saying the Appeal was misconceived since the Yu Order did not debar P from continuing to proceed with the present action, and on the contrary such order actually gave opportunity for P to continue to proceed with the present action subject to P disposing of the HCPI686/2010 Liability/Damages Judgments. Li Sr’s solicitors urged P to withdraw the Appeal with costs to Li Sr, otherwise Li Sr would seek costs against P on indemnity basis upon dismissal of the Appeal.

31. On 10 October 2018, P commenced HCA2384/2018 against Kam Luen for (a) an order that the HCPI686/2010 Liability/Damages Judgments be set aside, and/or (b) a declaration that such judgments were null and void on the ground that they were “entered into by mistake and/ or misrepresentation solely and wholly on the part of Kam Luen that it was the lawful and/or de facto employer of [P] at the material time, and also for costs and damages with interest to be assessed”.

32. On 11 October 2018, Bharwaney J granted written directions to both parties in the present action asking for a chronology of events/ steps in HCPI686/2010, DCEC638/2010 and the present action, and for an explanation why the EC insurer (ie MSIG) and/or the Board did not satisfy the HCPI686/2010 Damages Judgment. On 12 October 2018, P’s solicitors replied to the court to explain inter alia as follows:

(a) by a letter dated 5 February 2015, the Board’s solicitors rejected P’s application under section 20A of the ECO for the Board to satisfy the HCPI686/2010 Damages Judgment on the basis that MSIG admitted policy liability by its solicitors’ letter dated 5 October 2012 to the Board;

(b) P’s solicitors stated that “if Kam Luen after trial found not to be the employer of [P] at the material time, it seems that the Insurer is under no obligation to satisfy any judgment since it was then covering Kam Luen only for [EC]”.

33. The Appeal was heard by Bharwaney J on 15 October 2018 (“2018 Hearing”). Upon hearing counsel for both parties, the learned judge granted the following order (“Bharwaney Order”):

(a) parties to agree on case management directions (“1^st Order”);

(b) case be adjourned to a date to be fixed with costs reserved (“2^nd Order”);

(c) P’s own costs be taxed in accordance with Legal Aid Regulations.

34. On 13 November 2018, P’s solicitors wrote to Li Sr’s solicitors to (i) serve sealed copy of the Bharwaney Order, (ii) enclose a draft consent summons (engrossed by them) for the following reliefs, and (iii) explain that such draft consent summons was proposed pursuant to inter alia the 1^st Order which directed the parties to agree on case management directions:

(a) an order that the 2018 Hearing before Bharwaney J be treated as a case management hearing for directions;

(b) a direction that Bharwaney J be appointed as the trial judge, and that all future case management directions be given to the learned judge;

(c) other case management directions for the further conduct of HCPI686/2010, including directions for collating expert evidence on liability and quantum, filing pleadings on quantum, agreeing/ lodging trial bundle index, considering and (if appropriate) arranging mediation, fixing date for the next CLR, and making costs provision.

35. On 22 November 2018, Li Sr’s solicitors replied to ask for information as to the progress of P’s application for setting aside the HCPI686/2010 Damages Judgment to enable them to consider P’s proposal. On 17 September 2019, P’s solicitors wrote to Li Sr’s solicitors, saying that in order to restore the CLR P was willing to undertake not to enforce the HCPI686/2010 Damages Judgment pending the result of the present action “or alternatively [P] to set aside the [HCPI686/2010 Damages Judgment] with costs under HCPI686/2010 be reserved and to be dealt with in the present action”, and seeking other case management directions to progress the present action, such as expert directions on quantum, fixing next CLR and providing for costs.

36. On 30 September 2019, Li Sr’s solicitors replied to say (a) Li Sr’s stance as regards P’s proposed undertaking had been made clear in their earlier letter dated 1 August 2018 (see paragraph 27 above), and (b) whilst it was for P to decide whom he wished to deal with in respect of the HCPI686/2010 Damages Judgment, Li Sr claimed there was no legal basis for costs under HCPI686/2010 to be dealt with in the present action.

37. On 3 October 2019, P’s solicitors wrote to Bharwaney J’s clerk, saying they had provided proposed case management directions to Li Sr’s solicitors on 13 November 2018, 16 July 2019 and 17 September 2019 for consideration, but had not received any counter proposal, and proposing the following case management directions for the court’s direction:

(a) P would undertake not to enforce the HCPI686/2010 Damages Judgment pending the result of the present action, or alternatively P would set aside the HCPI686/2010 Damages Judgment with costs of such action be reserved to be dealt with in the present action;

(b) P made proposals for expert directions and for fixing the date for the next CLR.

38. On 21 February 2020, P’s solicitors lodged Notice of Intention to Proceed (when the High Court Registry was closed due to public health considerations). On 9 March 2020 (when the High Court Registry was closed due to public health considerations), P lodged (but did not file) a summons to seek inter alia the following reliefs (“Summons”):

(a) P would undertake not to enforce the HCPI686/2010 Damages Judgment pending the result of the present action, or alternatively P would set aside the HCPI686/2010 Damages Judgment with costs of such action be reserved and dealt with under the present action;

(b) directions on expert medical evidence as to quantum;

(c) adjournment of the CLR to a date in late July 2020.

39. On 9 March and 20 May 2020 respectively, P’s solicitors wrote to Bharwaney J’s clerk to propose available dates in March-May and in June-July 2020 for the hearing of the Summons. On 20 May 2020, Li Sr’s solicitors wrote to P’s solicitors, referring to their earlier letters dated 23 April, 5 May and 12 May 2020, and seeking confirmation as to whether P had set aside the HCPI686/2010 Liability/Damages Judgments, and what the progress had been made in HCA2384/2018 (which legal action was commenced on 10 October 2018). Li Sr’s solicitors reminded that the Yu Order remained valid, ie the present action was adjourned sine die with liberty to restore pending P setting aside the HCPI686/2010 Damages Judgment, and that at the 2018 Hearing Bharwaney J endorsed Li Sr’s view that “without having the [HCPI686/2010 Damages Judgment] set aside, the present action cannot be proceeded with. Needless to say, even if the [HCPI686/2010 Damages Judgment] is set aside, the question of liability in the present action is still a live issue and [Li Sr’s solicitors] are of the unfettered view that no liability will be attached to [Li Sr]. As [P] is legally aided, [Li Sr’s solicitors] trust [P’s solicitors] will properly protect the public funds”.

40. On 22 June and 4 September 2020, P’s solicitors wrote to Bharwaney J’s clerk urging that a hearing date be fixed for the Summons. On 24 September 2020, P filed Notice of Intention to Proceed. On 5 March 2021, P’s solicitors wrote to my clerk, expressing concern that no hearing date had been fixed for the Summons, and urging for a hearing date to be given as soon as practicable. On 23 March 2021, I granted inter alia the following written directions to the solicitors for P, solicitors for Li Sr and Kam Luen in the present action and in HCA2384/2018 (“Ng Directions”):

(a) all parties in the present action and HCA2384/2018 shall attend a directions hearing before this court on 6 May 2021 (“2021 Hearing”);

(b) P in HCA2384/2018 shall serve such written directions and notice of hearing on Kam Luen, and shall on/before the 2021 Hearing file affidavit of service to verify such service;

(c) P in HCA2384/2018 shall be ready to address this court at the 2021 Hearing on (i) whether the Writ of Summons in HCA2384/2018 had been served, and if not, why not, and (ii) what was the progress in relation to HCA2384/2018, and what steps had been taken to seek leave to join Li Sr as the 2^nd defendant in HCA2384/2018.

41. On 9 April 2021, P’s solicitors wrote to the court in relation to the Ng Directions, but it was not apparent on the face of such letter that it had been copied to Li Sr’s solicitors. In such letter, P’s solicitors gave a brief chronology of HCPI686/2010, DCEC638/2010 and the present action, and further explained as follows:

(a) the Writ of Summons issued on 10 October 2018 under HCA2384/2018 had not been served on Kam Luen;

(b) before/upon filing of the Appeal, P applied for and was granted legal aid to issue the Writ of Summons in HCA2384/2018 on 10 October 2018 for setting aside the HCPI686/2010 Liability/Damages Judgments “pending the outcome of the Appeal”;

(c) Bharwaney J did not determine the Appeal at the 2018 Hearing, but granted the Bharwaney Order, so the issue of whether the HCPI686/2010 Liability/Damages Judgments could be set side before the present action could proceed was not determined, so “[P] had changed his mind and withhold service of the Writ of Summons under HCA2384/2018”;

(d) from 13 November 2018 to 16 July 2019, pursuant to the Bharwaney Order, P by writing invited Li Sr to agree case management directions, but the parties were unable to reach agreement as Li Sr insisted P should set aside the HCPI686/2010 Liability/Damages Judgments first before Li Sr would proceed further with the present action;

(e) on 3 October 2019, P wrote to Bharwaney J for directions, but no directions were granted;

(f) on/about 9 March 2020, P lodged the Summons with the court, but no hearing date was given due to public health considerations;

(g) it was not until 23 March 2021 that the Summons was scheduled to be heard on 6 May 2021 (ie the 2021 Hearing).

42. The letter dated 9 April 2021 to the court by P’s solicitors went on to say as follows:

“[P’s solicitors] submit that it is not necessary to set aside the [HCPI686/2010 Liability/Damages Judgments] as there is no abuse of process. There are causes of action against both [Kam Luen] under [HCPI686/2010] and [Li Sr] under [the present action]. Both [Kam Luen and Li Sr] were tortfeasors and should be liable for the Accident. [HCPI686/2010] was commenced when the identity / full name of [Li Sr] was unknown to [P]. It is [P’s] evidence that he worked under instructions from the director (ie [Li Jr] being a son of [Li Sr]) of [Kam Luen] under [HCPI686/2010] and a senior Mr Li (then known as Li Sing Ming). [HCPI686/2010] was commenced owing to the false employer information provided by [Li Jr] in Form 2 initially when the full name and capacity of [Li Sr] was known to [P]. The case was then dragged on by the fault of LI and then a new [HCPI610/2016, ie the present action] became necessary. [P’s solicitors] submit that upholding the tenet or doctrine of just, fair and equitable law, the case should proceed as early as possible to minimise the prejudice inflicted upon [P], not out of his own fault.

[P’s solicitors] therefore invite the Court to decide if it is necessary to set aside the [HCPI686/2010 Liability/Damages Judgments] under [HCPI686/2010]. If so, [P] would need leave of the Court to extend of the validity of the Writ of Summons under [HCA2384/2018] and to join [Li Sr] as the 2^nd Defendant in HCA2384/2018 for the purpose of costs issue.”

On such basis, P’s solicitors sought directions (a) to set aside the Yu Order, and (b) upon undertaking by P not to enforce the HCPI686/2010 Damages Judgment pending the result of the present action, to deal with case management matters such as expert evidence and fixing date for the next CLR.

43. According to the affirmation of the process server of P’s solicitors filed on 4 May 2021 in HCA2384/2018, P served on Kam Luen the Ng Directions under cover of a letter dated 4 April 2021 sent by post to Kam Luen’s last known address. But I note that the Ng Directions sent by the court to Kam Luen were returned the court by reason of “incomplete address”.

44. At the 2021 Hearing on 6 May 2021, after hearing Mr Sun, solicitor for P, and Ms Sum, counsel for Li Sr, I granted the following order (“Ng Order”):

(a) P shall file the Summons within 7 days, and service of the Summons be dispensed with;

(b) leave be granted for P to withdraw the Summons;

(c) the Appeal against the Yu Order be dismissed;

(d) no later than 21 days from the date of the Order, the parties shall jointly write to court to address on the issue of liability for costs in respect of (i) the costs reserved under the 2^nd Order (“2^nd Costs Issue”), and (ii) costs consequent upon “parties to agree on case management directions” under the 1^st Order (“1^st Costs Issue”) (collectively, “Costs Issues”);

(e) unless otherwise directed, the Costs Issues shall be determined by paper disposal;

(f) costs of and occasioned by the Summons and the Appeal (including costs of the 2021 Hearing and all costs reserved but except for the Costs Issues) be paid by P to Li Sr to be taxed forthwith if not agreed;

(g) P’s own costs be taxed in accordance with Legal Aid Regulations.

45. On 10 May 2021, P filed the Summons pursuant to the Ng Order.

46. On 27 May 2021, P filed Notice of Intention to Proceed in HCA2384/2018. On the same day, P and Li Sr by their respective solicitors submitted to the court their joint written submissions setting out their respective stance on the Costs Issues in the present action.

V. COSTS ISSUES : PARTIES’ RESPECTIVE STANCE

47. In respect of the 2^nd Costs Issue,

(a) P claimed Bharwaney J indicated that case management matters including the Appeal might be resolved by the parties agreeing on case management directions (which proposed directions as agreed should be submitted to him for determination) in order to save time and costs instead of (i) adjourning the Appeal for argument or (ii) determining the Appeal forthwith. On such basis, P argued that such costs should be costs in the cause or should be reserved for determination at trial.

(b) For the reasons set out in paragraph 48(b) below, Li Sr claimed P should pay him costs under the 2^nd Costs Issue to be taxed if not agreed.

48. In respect of the 1^st Costs Issue,

(a) P claimed the 1^st Order directed both parties to make attempts to agree on case management directions. P’s solicitors had made efforts to such end,[20] but in breach of such order there was no constructive reply by Li Sr’s solicitors.[21] P claimed that even if Li Sr insisted on setting aside of the HCPI686/2010 Liability/Damages Judgments, he should have proposed such “setting aside with time frame and other case management directions or to propose directions or resumption of a hearing for Court’s directions on the [Appeal], in order to comply with the Order”. P was constrained to file the Summons to progress the present action due to Li Sr’s inaction and because the Appeal was not yet determined. On such basis, P claimed he acted reasonably, and it was Li Sr who in breach of the 1^st Order caused the unnecessary costs of the Summons and the 2021 Hearing, which could have been avoided had Li Sr complied with the 1^st Order to “agree” case management directions with P. P argued that costs under the 1^st Costs Issue should be costs in the case or should be reserved for determination at trial.

(b) Li Sr claimed P did not propose any case management directions for the disposal of the Appeal, but repeatedly proposed directions for the future conduct of the present action as if the Yu Order had been set aside and without legal effect, which stance was evident from the series of solicitors’ correspondence from 13 November 2018 to 5 March 2021. But the Yu Order had not been aside under the Appeal and remained valid, hence Li Sr’s solicitors by their letters dated 22 November 2018, 30 September 2019 and 20 May 2020 raised concerned about P’s progress in setting aside the HCPI686/2010 Damages Judgment in HCA2384/2018. Li Sr claimed it would be inappropriate for P to proceed the present action unless and until the HCPI686/2010 Damages Judgment was set aside, so P’s proposed case management directions to progress the present action were unnecessary and a waste of time/costs. Given the lack of agreement between the parties on case management directions for the disposal of the Appeal, P should have proceeded but did not proceed to restore the hearing of the Appeal. As the Appeal was now dismissed by the Ng Order, costs should follow event. Li Sr’s solicitors also drew attention to their “without prejudice save as to costs” letter dated 9 October 2018 (ie shortly before the 2018 Hearing on 15 October 2018 before Bharwaney J) (see paragraph 30 above). On such basis, Li Sr claimed P should pay him costs under the 1^st Costs Issue to be taxed forthwith if not agreed.

49. Should Li Sr successfully obtain costs under the Costs Issues, Li Sr asked for his costs to be taxed on indemnity basis. P disagreed, and his solicitors drew my attention to Halsbury’s Laws of Hong Kong[22] as follows:

“The court has a wide discretion in determining whether to order costs to be assessed on the indemnity basis and, in order to justify an award on an indemnity basis, special features have to be shown to render such an award appropriate. The power to order that costs be taxed on an indemnity basis includes, but is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion to what is at stake, may also be ordered to pay costs on an indemnity basis if they lose or have part of their costs disallowed if they are successful. Indemnity costs are not, however restricted to cases where there has been some deception or underhand conduct on the part of a litigant; they may also be awarded where the litigation has merely been fought bitterly or unreasonably.”

In fact, the learned text went on to state as follows: “In deciding whether or not to award indemnity costs, each case must of course be considered on its own facts. The attributes of the parties and the character of the proceedings may both be relevant in the exercise of the court’s discretion to award indemnity costs. The grounds for making such an order must, however, be connected with the case and might extend to any matter relating to the litigation and the parties’ conduct in it and also to the circumstances leading to the litigation, and no further. An award of indemnity costs will, therefore, generally be restricted to situations which involve the manner in which the litigation has been conducted rather than the conduct which constitutes the cause of action or matter giving rise to the litigation.”

VI. 2018 HEARING

50. The Appeal came before Bharwaney J at the 2018 Hearing. As I was not the presiding judge at the 2018 Hearing, I have reviewed the transcript of such hearing (“Transcript”). A few matters were of note.

51. First, Bharwaney J noted that pursuant to the assessment of damages in HCPI686/2010 before Master J Wong, the sealed copy of the HCPI686/2010 Damages Judgment was entered against both Kam Luen and MSIG.[23] It transpired that P’s solicitors “made a mistake in entering judgment against [MSIG]”, and P’s counsel admitted that at the hearing of the assessment of damages MSIG “has made the position very clear that they are going to dispute about the validity of the insurance policy”.[24]

52. Secondly, Bharwaney J queried why, P having obtained the HCPI686/2010 Liability/Damages Judgments, would proceed to trial to seek EC in DCEC638/2010.[25] The learned judge was of the view that the DCEC638/2010 Judgment of 12 November 2015 was “an embarrassment” when the HCPI686/2010 Liability/Damages Judgments “remained intact”, and queried (a) how DDJ Brian Mak could proceed to make a core finding of fact (ie Li Sr was P’s employer) that contradicted the HCPI686/2010 Liability/Damages Judgments (which judgments were premised on Kam Luen being P’s employer),[26] and why P’s counsel did not submit to DDJ Brian Mak and MSIG that the trial in DCEC638/2010 could not proceed:

“COURT: Well why didn’t you tell him? It’s an embarrassment, we can’t proceed. Why didn’t you tell Munros [MSIG’s solicitors] we can’t proceed? You have to strike out the first judgment [HCPI686/2010 Liability/Damages Judgments].

……

COURT: …… I’m talking about judgment against Kam Luen. If you have a High Court judgment against Kam Luen on the basis that Kam Luen is the employer, how can you have a District Court judgment saying Kam Luen is not the employer?

……

COURT: It’s an embarrassment.”

Upon query by the learned judge, P’s counsel clarified that P did not resist MSIG’s application to set aside the judgment on liability entered by consent between P and Kam Luen on 5 October 2012 in DCEC638/2010,[27] and that HHJ Kent Yee knew about the proceedings in HCPI686/2010 when he acceded to MSIG’s application to set aside such consent judgment on liability in DCEC638/2010.[28] Bharwaney J questioned how MSIG could “fight strongly [ie dispute liability] in [HCPI686/2010] without setting aside the interlocutory judgment [HCPI686/2010 Liability Judgment] …… [MSIG’s solicitor] should have applied to set aside the interlocutory judgment [ie HCPI686/2010 Liability judgment] because of his late joinder [in HCPI686/2010]. He just participated with the assessment …… That’s why we are here”.[29]

53. P’s counsel tried to submit that P’s claim in HCPI686/2010 was against Kam Luen in dual capacity as employer and occupier,[30] so it was an “open finding” as to whether Kam Luen was liable as employer and/or occupier (even though (a) P’s SoC pleaded that Kam Luen was P’s employer and occupier of the Site,[31] and (b) “solicitors for both parties [P and Kam Luen] agreed that judgment should be entered on liability, leaving them just to be assessed”), which led to the interlocutory HCPI686/2010 Liability Judgment.[32] On such basis, it was suggested that it was not necessary to set aside the HCPI686/2010 Liability/Damages Judgments “because Kam Luen can be liable as an occupier. Because there is evidence before the court to so find in the – in the pleading”.[33] Still Bharwaney J was concerned that the DCEC638/2010 Judgment was an embarrassment because “the whole [SoC in HCPI686/2010] reads on the basis that [Kam Luen] is the employer” and P got “a High Court admission on the basis that [Kam Luen] was the employer”.[34] The learned judge further noted the written notes of this court (as PI Master) at the hearing on 8 September 2011 in HCPI686/2010 “only relate to the directions in relation to quantum. There was no – nothing expressed to [this court as PI Master] that the admission on liability is on a limited basis of liability as occupier”.[35] P’s counsel next submitted P should be able to claim against joint tortfeasors under CLCO, but the learned judge pointed out “[there’s] no joint liability here. It’s either the employer was Kam Luen or the employer was [Li Sr] …… It’s not joint employment …… [DDJ Brian Mak] found that [Li Sr] was the sole employer”.[36] When P’s counsel ultimately complained of the “trick” played on P about the true identity of his employer,[37] the learned judge maintained his observations that proceeding further in the present action would be an embarrassment:[38]

“COURT: …… The problem is, you have an existing -- you have an existing judgment in the first High Court action [HCPI686/2010 Liability/Damages Judgments] which ought to have embarrassed the District Court judge, but apparently it did not, even though he recognised the doctrine of issue estoppel applied and he actually applied it in relation to his findings on Master Wong’s findings on income. He didn’t have regard to the admission and the judgment of liability against [Kam Luen].

……

COURT: And now, you want to proceed with this action on the same basis as the District Court did. So you think that because the District Court judge was not embarrassed that I should also not feel embarrassed?”

54. Thirdly, Bharwaney J queried why P claimed the Yu Order was wrong when Master Roy Yu “just adjourned [the present action] sine die for [P] to set aside [the HCPI686/2010 Liability/Damages Judgments]. He didn’t strike out [the present action]”.[39] It was then that P’s counsel revealed P’s Writ of Summons in HCA2384/2018, which at that time had not been served and which Li Sr’s counsel was unaware. On that note, the learned judge made suggestions on the further conduct of the matter before him:[40]

“COURT: Can I ask the parties to be extremely pragmatic and practical? Can we treat this hearing, not as an appeal, but as a directions hearing ……

MR WONG [P’s counsel]: Yes, my Lord.

COURT: …… on the further conduct.

MR WONG: Yes.

COURT: And I will then case manage the new action [HCA2384/2018]. I will grant leave to Mr Lin [Li Sr’s counsel] to participate in it.

MR LIN [Li Sr’s counsel]: Much obliged, my Lord.

COURT: And I will also case manage the current action. But Mr Lin, do you -- it all turns on your position and whether or not you will resist the setting aside.

MR LIN: Well my Lord, as I said, I only became aware. I do not ……

COURT: But I mean, you can anticipate.

MR LIN: Yes, but I do not ……

COURT: I mean, what was [the Yu Order] was to adjourn whilst they start a new action to set aside.

MR LIN: Yes, yes.

COURT: So, you can anticipate that is coming.

MR LIN: Yes.

COURT: So it is one step more because, instead of just talk, they actually -- do you have a copy of that writ?

MR WONG: Yes.

MR LIN: My Lord, in fact, I’m not sure whether that is actually the position, because I think the -- it appears that Mr Wong’s position is that he did not want to set aside the judgment, because I think they’re worried about the costs in that proceedings.

COURT: So you are asking him to be sensible and to consider this as a directions hearing?

MR LIN: Yes.

COURT: Proceed with the setting aside.

MR WONG: Yes. Yes, my Lord.

MR LIN: But my Lord...

COURT: And then I need to know whether you will resist the setting aside.

MR LIN: Well my Lord, I have to -- of course, as I said, I have to take instruction on that, upon that position of the setting aside of that judgment.

……

COURT: I said did the EC judge know about the first High Court action [HCPI686/2010]? Answer, yes. I said after the judgment in the first action [HCPI686/2010 Liability/Damages Judgments], the later EC proceedings was an embarrassment. That’s what I -- that’s my view.

MR LIN: Yes. It appeared from the judgment that the judge, the learned judge in the EC court did not actually view that point at all. It doesn't appear to me.

COURT: Now, if you do make applications, surely -- I mean it all depends on whether or not the first High Court action [HCPI686/2010 Liability/ Damages Judgments] is set aside.

MR LIN: Yes.

COURT: That must happen first.

……

MR WONG: …… My Lord, my submission is that your Lordship’s absolutely right to treat this as management hearing so that the future conduct of this case can be better regulated. And we undertake to give our best effort, expeditiously proceed with the preparation of this case ……

COURT: No, you have to put your heads together and give me some directions for the new action. Is the new action in the HCA list or PI list? You don’t know. Let’s see, we’ll let the document come back. ……

……” (my emphasis)

55. Fourthly, given that Li Sr was not insured and there was uncertainty whether he could satisfy the damages awarded under the HCPI686/2010 Damages Judgment (which were about $1.4 million), Bharwaney J urged the involved parties to try to see if overall resolution of the matter was possible to obviate throwing further money into legal costs.[41] Then on such note the learned judge went on to say as follows:[42]

“COURT: Right. So I think it’s a good point now to adjourn. Parties put their heads together, see whether they can come to an overall resolution. If not, to agree some directions in relation to joining of Mr Lin’s client [Li Sr] …… to this new action [HCA2384/2018]. And for directions that the case management of this new action [HCA2384/2018] would be conducted by myself and that I will be the trial judge in this new action [HCA2384/2018] and that further directions that I will have the conduct of …… the current High Court action [ie the present action] and for further directions.

And for a direction that today’s hearing be treated as a directions hearing instead of an appeal from Master Roy Yu, and for some directions as to costs of today. And if the parties have difficulty agreeing, then we have to come back.

MR WONG: Much obliged, my Lord.

COURT: Mr Lin, any further or any additional observations?

MR LIN: Well, my Lord, insofar as those directions, I have not much objection. But I can anticipate that there is going to be debate on the question of costs of today.

COURT: I know. That’s why I said, if there’s no agreement ……

MR LIN: Yes.

COURT: …… then obviously you’ll have to come back.

MR LIN: Yes. I wonder whether, in fact, your Lordship ……

COURT: What I really want you to do is talk to your client and talk about this judgment of 1.4 million and even if your client doesn’t pay, how much can they get back from ECAS. And all the legal costs that will be incurred by your client before he can even -- I shudder to think about all of this.

MR LIN: Yes.

COURT: And I would suggest some sensible resolution. Now, if a sensible resolution cannot be achieved in terms of giving up some of your claim ……

MR WONG: Yes, my Lord.

COURT: …… because it’s a long and painful road that you have to still take.

MR WONG: Obviously, yes, my Lord.

COURT: And in making some payment, Mr Lin.

MR LIN: Well, yes.

COURT: Just to avoid the further pain of further costs and quite complicated proceedings.

MR LIN: Yes.

COURT: If that’s not possible, then try to agree directions and if part of those directions can be agreed, well and good.

MR LIN: Yes.

COURT: If certain part cannot be agreed, then write to me to say what is agreed, what cannot be agreed and then we will take it further.

MR LIN: And also the, I think [P] to be sensible about the costs of the first set of proceedings [HCPI686/2010], because it appears that they tried to claim those costs against my client [Li Sr].

COURT: Yes, you have to look at the whole overall picture. I mean, the costs against the first proceedings [HCPI686/2010] is being claimed against Kam Luen.

MR LIN: Yes.

COURT: But technically, you are not Kam Luen.

MR LIN: Yes.

COURT: Anyway, I mean, whether you want to lift the corporate veil and this and that in your discussions, I’m not party to it.

MR LIN: Yes.

COURT: But I just impress upon the parties to be sensible.

MR LIN: Yes.

……” (my emphasis)

VII. DISCUSSION

56. Costs under the 2^nd Costs Issue concerned costs reserved under the 2^nd Order, and costs under the 1^st Costs Issue concerned costs incurred in “agreeing case management directions” under the 1^st Order. By the Ng Order, I have ordered that costs of the Summons and the Appeal (save for the Costs Issues) be paid by P to Li Sr to be taxed forthwith if not agreed. This meant that in relation to the 2^nd Costs Issue, the costs reserved by Bharwaney J under the 2^nd Order would cover costs of and occasioned by the 2018 Hearing, the other costs of the Appeal having been disposed of under the Ng Order.

57. Since the 1^st and 2^nd Orders were made at the 2018 Hearing, and such hearing came before Bharwaney J as a result of the Appeal filed by P, it would be important to understand what the Appeal was about and what transpired at the 2018 Hearing.

58. The Appeal was an appeal against the 2-limbed Yu Order (see paragraphs 28-29 above). First, Master Roy Yu rejected P’s application to proceed with the present action upon P’s undertaking not to enforce the HCPI686/2010 Liability/Damages Judgments. Secondly, the present action was adjourned sine die with liberty to restore pending P setting aside the HCPI686/2010 Liability/Damages Judgments. In summary, Master Roy Yu was of the view that the very existence of the HCPI686/2010 Liability/Damages Judgments themselves would prevent P from proceeding with the present action, but P could progress the present action if and when the HCPI686/2010 Liability/Damages Judgments were removed.

59. By the Appeal, P disagreed that the very existence of the HCPI686/2010 Liability/Damages Judgments themselves formed any legal hurdle to progressing the present action, and proposed that the present action proceed towards trial notwithstanding such judgments, or to proceed towards trial notwithstanding such judgments and upon P undertaking not to enforce such judgments or undertaking to start a fresh action to set aside such judgments (see paragraph 29 above). In summary, P wanted to keep the HCPI686/2010 Liability/Damages Judgments for common law damages in relation to the Accident against Kam Luen intact whilst he would proceed with the present action to seek judgment again for common law damages in relation to the Accident against Li Sr, and at most P would only refrain from enforcing the HCPI686/2010 Damages Judgment or P would only start (but not have to complete) a new action to set aside the HCPI686/2010 Liability/Damages Judgments.

60. However, P’s claim against Kam Luen in HCPI686/2010 for common law damages in respect of personal injuries, loss and damages suffered as a result of the Accident mirrored exactly his claim against Li Sr for the same common law damages for the same personal injuries, loss and damages for the same Accident in the present action (see paragraphs 2-3 and 15-16 above). More significantly, in each of HCPI686/2010 and the present action, P respectively sued Kam Luen and Li Sr as P’s employer, contractor of the Site, proprietor of the industrial undertakings at the Site, person responsible for the workplace at the site under OSHO and OSHR, and the occupier of the Site under OLO (see paragraphs 3 and 16 above). In summary, P made the same allegations against Kam Luen and against Li Sr in the same capacities in 2 separate legal actions over the same Accident and the same personal injuries, loss and damages, but without any plea or averment in P’s pleadings in HCPI686/2010 (which proceedings had been completed) and in the present action (which proceedings were still ongoing) that there was at the material time any co-employer, co-contractor, co-proprietor, co-responsible person and/or co-occupier in respect of P and/or the Accident.

61. In such context, issue arose as to whether P could continue to pursue his claim against Li Sr in the present action given (a) the HCPI686/2010 Liability Judgment by which Kam Luen already admitted liability for P’s claim for common law damages for personal injuries, loss and damages as a result of the Accident, which claim mirrored P’s claim against Li Sr for common law damages for personal injuries loss and damages as a result of the Accident in the present action and (b) the HCPI686/2010 Damages Judgment being a final judgment by which Master J Wong awarded common law damages against Kam Luen in favour of P for personal injuries, loss and damages as a result of the Accident were still in existence and binding on P. As of now the HCPI686/2010 Liability/Damages Judgments still have not been set aside.

62. In my view, the answer to the question posed in the above paragraph must be in the negative. The rationale was that by virtue of the HCPI686/2010 Liability/Damages Judgments against Kam Luen, P’s cause of action in respect of his personal injuries, loss and damages as a result of the Accident had merged in such judgments, and such cause of action was extinguished and would no longer support and/ or maintain P’s claim in the present action. I need look no further than to refer to the succinct summary of the law in Spencer Bower and Handley: Res Judicata as follows:[43]

“1.03 A party is estopped, against any other party, from disputing the correctness of the decision, except on appeal, whether it is relied on as a bar to a claim or defence, or in an action on the judgment.

1.04 It is important to distinguish between the effect of a decision as a res judicata estoppel, and as a merger of the cause of action. Much confusion has been created by failing to do this. If the action succeeds the cause of action merges in the judgment and is extinguished. A second action cannot be brought on that cause of action, not because there is an estoppel, but because there is no longer a cause of action. ……”

This, in my view, would be a complete answer to P’s contentions in the Reply set out in paragraph 24(b) above and in the letter dated 3 April 2018 by P’s solicitors (see paragraph 26(c)-(d) above). The suggestion that the principle of estoppel did not apply because P had not received any payment of the awarded damages under HCPI686/2010 was irrelevant since it was the merger (not estoppel) of the cause of action in the HCPI686/2010 Liability/Damages Judgments that extinguished P’s cause of action for his personal injuries, loss and damages as a result of the Accident. The fact he had not received payment of the awarded damages would not detract from the legal effect of the HCPI686/2010 Liability/Damages Judgments.

63. Indeed, Bharwaney J at the 2018 Hearing made clear that P could not proceed against Li Sr in the present action (and should not have proceeded against Li Sr in DCEC638/2010) as they amounted to “embarrassments” in view of the existing HCPI686/2010 Liability/ Damages Judgments that had not been set aside (see extracts from the Transcript in paragraphs 52-54 above), so the setting aside of the HCPI686/2010 Liability/Damages Judgments “must happen first” (see paragraph 54 above).

64. Turning to P’s contentions in his Reply in the present action (see paragraph 24(a) above), at the 2018 Hearing (see paragraph 53 above) and in his solicitors’ correspondence before/after such hearing (see paragraph 42 above) that Kam Luen and Li Sr were joint and/or several tortfeasors such that if Kam Luen did not satisfy the damages awarded under the HCPI686/2010 Damages Judgment P would be entitled under CLCO to sue Li Sr as the co-tortfeasor to recover common law damages, I find there were no merits to such arguments. Such contentions were no answer to the legal principles/effect of the merger of cause of action discussed in the paragraph 62 above. Such legal principles/effect of the merger of cause of action would also destroy the argument by P’s counsel that the HCPI686/2010 Liability Judgment amounted to an “open finding” as to the basis of Kam Luen’s liability (eg whether Kam Luen was liable as employer and/or, say, as occupier). In any event, P’s contentions were debunked by Bharwaney J at the 2018 Hearing when he pointed out the following:

(a) “the whole Statement of Claim reads on the basis that [Kam Luen] is the employer” (see paragraph 53 above), and Kam Luen in admitting liability in HCPI686/2010 (see paragraph 17(e) and 26(a) above) did not qualify such admission of liability was “on a limited basis of liability as occupier” (see paragraph 53 above);

(b) according to P’s pleaded claim in HCPI686/2010 and in the SoC the present action respectively, “[there’s] no joint liability. It’s either the employer was Kam Luen or the employer was [Li Sr] …… It’s not joint employment …… [DDJ Brian Mak] found that [Li Sr] was the sole employer” in DCEC638/2010 (see paragraph 53 above).

65. In the circumstances, the “embarrassment” in P proceeding with the present action in face of the HCPI686/2010 Liability/Damages Judgments was not salvageable by P undertaking (a) not to enforce of HCPI686/2010 Damages Judgment and/or (b) to forthwith start a fresh action to set aside the HCPI686/2010 Liability/Damages Judgment (without actually setting aside such judgments). As a result, by the Ng Order, I granted leave for P to withdraw the Summons, and I also dismissed the Appeal. The Yu Order was plainly correct. It is important to note that these matters were canvassed not only in the 2021 Hearing but also in the 2018 Hearing as evident from paragraphs 63 and 64(a)-(b) above (see also Part VI above). So P could not be heard to say he was unaware of the views of the court when he embarked on trying to agree case management directions with Li Sr under the 1^st Order after the 2018 Hearing.

66. As to what transpired at the 2018 Hearing, I have described the same in some detail in Part VI above. Of importance was Bharwaney J’s views and guidance set out in paragraphs 63 and 64(a)-(b) above and also as follows:

(a) the learned judge had reservations over MSIG’s stance in disputing liability in HCPI686/2010 and in DCEC638/2010 since MSIG did not seek to set aside the HCPI686/2010 Liability Judgment against its insured Kam Luen but merely participated in the assessment of damages that resulted in the HCPI686/2010 Damages Judgment against its insured Kam Luen under the aegis of the HCPI686/2010 Liability Judgment against Kam Luen (see paragraph 52 above);

(b) the learned judge was of the view that the trial in DCEC638/2010 resulting in the DCEC638/2010 Judgment that flied against the HCPI686/2010 Liability/Damages Judgments (which had not been set aside) was an “embarrassment” (see paragraph 52 above), that such existing judgments ought to have “embarrassed” DDJ Brian Mak but apparently it did not (see paragraph 53 above), and that “[P] have to strike out the first judgment [HCPI686/2010 Liability/ Damages Judgments]” (see paragraphs 52 and 54 above);

(c) the learned judge quizzed P’s counsel whether he thought that merely because DDJ Brian Mak was not embarrassed in proceeding with the trial in DCEC638/2010 the learned judge would not “feel embarrassed” when P wished to proceed with the present action on the same basis as in the DCEC638/2010 Judgment (ie P’s employer was Li Sr instead of Kam Luen) (see paragraph 53 above).

67. Thus, the whole tenor of Bharwaney J’s observations was that the present action which was brought on the same footing as the finding in the DCEC638/2010 Judgment that P’s employer was Li Sr was an “embarrassment” when the HCPI686/2010 Liability/Damages Judgments had not been set aside, which was why he said those judgments had to be set aside first (see paragraphs 52 and 54 above). It was plain that Bharwaney J considered the necessary “further conduct” was to get on with setting aside the HCPI686/2010 Liability/Damages Judgments, which was in line with the Yu Order that the present action be stayed pending P setting aside those judgments. By the time of the 2018 Hearing, P had gone beyond “just talk” about setting aside those judgments and had taken “one step more” by having issued the Writ of Summons in HCA2384/2018 against Kam Luen for such purpose (see paragraph 54 above). But nothing much further could be done at the 2018 Hearing because P had not served the Writ of Summons in HCA2384/2018 on Kam Luen, and Li Sr’s counsel was only made aware of such proceedings at the 2018 Hearing and had to take instructions (see paragraph 54 above).

68. The matters in the above paragraph were the very reasons why Bharwaney J treated the 2018 Hearing as a directions hearing instead of the hearing of the Appeal. It was why the learned judge’s initial focus was to say he would case manage HCA2384/2018, why he told P’s counsel to “[proceed] with the setting aside”, and why he told Li Sr’s counsel that he would in due course grant leave for Li Sr to participate in HCA2834/2018, that he would need to know whether Li Sr would resist P’s claim to set aside the HCPI686/2010 Liability/Damages Judgments, and that “it all turns on [Li Sr’s] position and whether or not [he] will resist the setting aside”, and then on such basis the learned judge said he would also case manage the present action (see paragraph 54 above). To make it even more abundantly clear, the learned judge said “it all depends on whether or not the first High Court action [HCPI686/2010 Liability/ Damages Judgments] is set aside …… That must happen first” (see paragraph 54 above).

69. On the above premise, P would not be proceeding with the present action until the HCPI686/2010 Liability/Damages Judgments were set aside (which was in line with the Yu Order), and hence the Appeal would be redundant. This was why Bharwaney J suggested he would treat the 2018 Hearing not as a hearing for the Appeal but a directions hearing, and he asked the parties to try and see if amicable overall resolution was possible (see paragraph 55 above), failing which “to put your heads together and give some directions for the new action” (my emphasis), ie to progress HCA2384/2018 for setting aside the HCPI686/2010 Liability/Damages Judgments (see paragraph 55 above). It was made even more clearly later on at the 2018 Hearing when Bharwaney J said if there were no overall resolution, the parties were to “agree some directions in relation to joining [Li Sr] …… to this new action [HCA2834/2018]. And for directions that the case management of this new action [HCA2834/2018] would be conducted by [the learned judge] and that [the learned judge] will be the trial judge in this new action [HCA2834/2018]”, and then he would have conduct of and give further directions in the present action” (see paragraph 55 above). This led to the 1^st Order granted by the learned judge.

70. In light of the plain observations/directions by Bharwaney J, it was not easy to understand why after the 2018 Hearing P would come up with proposed case management directions merely for the further conduct of the present action, and to repeat the contentions that P could continue with the present action upon undertaking not to enforce the HCPI686/2010 Damages Judgment or to set aside the HCPI686/2010 Damages Judgment with costs of such action to be dealt with in the present action (see paragraphs 35-38 and 41 above).

71. First, since the Appeal was not determined, the Yu Order as an inter partes order was still valid and binding on P and Li Sr, so the stay of proceedings in the present action was still in place. Without any agreed directions or court order to lift such stay (if possible), P simply could not propose case management directions to progress the present action. This was pointed out in the letter dated 20 May 2020 by Li Sr’s solicitors (see paragraph 39 above).

72. Secondly, P’s proposed case management directions flied against the observations, guidance and directions by Bharwaney J in the 2018 Hearing that directions for progressing HCA2384/2018 to set aside the HCPI686/2010 Liability/Damages Judgments should be put forward first and foremost. So Li Sr’s solicitors rightly queried this in their letters dated 22 November 2018, 30 September 2019 and 20 May 2020 (see paragraphs 35, 36 and 39 above). I disagree that Li Sr’s solicitors failed to give constructive reply. It must be remembered that Li Sr was not a party to HCA2384/2018, and if P chose not to serve the Writ of Summons in such action (which he did not even by the time of the 2021 Hearing), Li Sr could not even begin to ponder any proposal for joinder as a party to HCA2384/2018. Li Sr could hardly be blamed for raising the queries as he did through his solicitors. I cannot see how Li Sr was in breach of the 1^st Order.

73. P claimed it was incumbent upon Li Sr to propose directions for “setting aside with time frame and other case management” and/or for restoring the Appeal. I disagree. It was P and not Li Sr who had to set aside the HCPI686/2010 Liability/Damages Judgments in order for the present action to proceed. Alternatively, it was P and not Li Sr who had to restore the Appeal and to overturn the Yu Order in order for the present action to proceed. Indeed, as P confessed, P had not served the originating process in HCA2384/2018 on Kam Luen let alone Li Sr. Li Sr was not a party to and was not served with process in that action, and hence had no capacity to propose case management directions in that action. What P should have done was to (a) forthwith serve the Writ of Summons in HCA2384/2018 on Kam Luen and seek Li Sr’s stance on P’s claim to set aside the HCA686/2010 Liability/Damages Judgments and on joinder of Li Sr in such action, and (b) propose directions on these matters for restoring the matter before Bharwaney J for case management. But P did not do so, and in my view he could not blame Li Sr for the so-called “inaction”. I bear in mind that even before the 2018 Hearing Li Sr had made clear his stance in his solicitors’ letters dated 1 August and 9 October 2018 (see paragraphs 27 and 30 above), which stance was reiterated after the 2018 Hearing in his solicitors’ letters dated 22 November 2018, 30 September 2019 and 20 May 2020 (see paragraphs 35, 36 and 39 above). Further, not having served the Writ of Summons in HCA2384/2018 and not having suggested to join Li Sr in such action (which was the guidance by Bharwaney J on the way forward at the 2018 Hearing), P’s alternative proposal to Li Sr to set aside the HCPI686/2010 Liability/Damages Judgments with costs to be dealt with the present action (see paragraphs 35, 37 and 38 above) had no meaning as Li Sr had no locus in HCA2384/2018 that was between P and Kam Luen, and it was difficult to see how costs as between P and Kam Luen in that action could be dealt with in the present action of which Kam Luen was not even a party.

74. The letter dated 9 April 2021 by P’s solicitors tellingly demonstrated that P’s stance of not progressing HCA2384/2018 despite Bharwaney J’s observations/directions at the 2018 Hearing was a conscious decision on the part of P. Such letter stated that as the Appeal was not determined at the 2018 Hearing, the issue of whether the HCPI686/2010 Liability/Damages Judgments could be set aside before the present action could be proceeded with was not determined, so “[P] had changed his mind and withhold service of the Writ of summons under HCA2384/2018” (see paragraph 41(c) above). Such contention was flawed because if the Appeal was not determined then the Yu Order remained valid and binding on P and Li Sr, in which case the present action was stayed and P could not have proceeded with the present action without setting aside the HCPI686/2010 Liability/Damages Judgments. The reason why Bharwaney J treated the 2018 Hearing not as a hearing of the Appeal was because the Yu Order would stand and P would first proceed with setting aside the HCPI686/2010 Liability/Damages Judgments, and the learned judge treated such hearing as a directions hearing so that P and Li Sr would put their heads together for proposing case management directions for progressing HCA2384/2018, which necessarily entailed service of the Writ of Summons in that action and hopefully eventual joinder of Li Sr to that action. Notwithstanding such clear guidance from Bharwaney J and further reminders by correspondence from Li Sr’s solicitors, P’s decision to treat the 1^st Order merely as a direction to agree case management directions in the present action alone and to withhold service of the Writ of Summons in HCA2834/2018 must be a conscious decision under legal advice, but in my view such decision could not be supported.

75. Again, I am unable to see how it could be said that P was constrained by Li Sr’s “inaction” and by the fact that the Appeal was not determined to take out the Summons, and/or that it was Li Sr’s breach of the 1^st Order that caused the unnecessary costs of the Summons and the 2021 Hearing:

(a) I have explained why I do not accept there was “inaction” on the part of Li Sr.

(b) The fact that the Appeal was not determined did not mean P should take out the Summons. The fact that the Appeal was not determined meant the Yu Order was still valid and binding on P, and hence the present action was stayed pending the setting aside of the HCPI686/2010 Liability/Damages Judgments. What P should have done was to restore the Appeal if he were minded to progress the present action without setting aside the HCPI686/2010 Liability/ Damages Judgments, which he did not do. But by now the Appeal was dismissed under the Ng Order.

(c) Proposals for case management directions for HCA2384/2018 (ie not the present action) would not have fallen foul of non-disposal of the Appeal. Although it would have been logical (and would not have required express directions) that if the parties failed to reach agreement on case management directions, the matter should be promptly restored to Bharwaney J for determination. Nevertheless, the learned judge expressly said so at the 2018 Hearing, ie “…… if the parties have difficulty agreeing, then we have to come back”, “…… [that’s] why I said, if there’s no agreement …… then obviously you’ll have to come back”, and “[if] that’s [overall resolution] not possible, then try to agree directions and if part of those directions can be agreed, well and good …… [if] certain part cannot be agreed, then write to me to say what is agreed, what cannot be agreed and then we will take it further” (see paragraph 55 above). But P did not write to the learned judge until 3 October 2019 (see paragraph 37 above), almost a year after the 2018 Hearing, and he still maintained his stance as explained above, which I have rejected.

(d) I cannot see how P could say that costs of the Summons and the 2021 Hearing were wasted costs avoidable but for Li Sr’s stance. P had since withdrawn the Summons and by the Ng Order I have awarded costs of the Summons and the 2021 Hearing to Li Sr against P.

76. By reason of the above matters, I have no hesitation in concluding that P must pay Li Sr’s costs under the 1^st Costs Issue to be taxed forthwith if not agreed.

77. As for costs under the 2^nd Costs Issue, ie costs of the 2018 Hearing reserved under the 2^nd Order, I cannot see how P could avoid paying costs of and occasioned by the 2018 Hearing. As explained above, the Appeal was not determined at the 2018 Hearing and Bharwaney J treated such hearing as a directions hearing because the learned judge was of the firm view that P must first set aside the HCPI686/2010 Liability/ Damages Judgments, such that there was no need to deal with the Appeal or to disturb the Yu Order, but there was need for P to move ahead with HCA2384/2018 for setting aside the HCPI686/2010 Liability/Damages Judgments and to have directions in place for such purpose. Further, the learned judge could not have made such directions and had to leave it to the parties try to agree directions because P had yet to serve the Writ of Summons in HCA2384/2018, and Li Sr’s counsel only lately become aware of such proceedings and had to take instructions from Li Sr. Given the whole rationale of the Bharwaney Order was to put arrangements in place to move ahead with first setting aside the HCPI686/2010 Liability/ Damages Judgments, which was contrary to P’s stance in the Appeal and thereafter, I am persuaded P should pay Li Sr the costs under the 2^nd Costs Issue, ie costs reserved under the 2^nd Order, to be taxed forthwith if not agreed.

78. As for the basis of costs under the Costs Issues, Li Sr sought costs on indemnity basis. I have set out the broad principles for awarding indemnity costs in paragraph 49 above. It is useful to refer also to the guidance of the Court of Final Appeal in Town Planning Board v Secretary for Protection of the Harbour Ltd (No 2) as follows:[44]

“16. The courts have rejected the proposition that an award of indemnity costs will only be made where a case has been brought with an ulterior motive or for an improper purpose or where there is some deception or underhand conduct on the part of the losing party. ……

17. In these and other cases, courts have emphasised the undesirability to define the circumstances in which orders for indemnity costs are to be made. It has been said that:

… the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”.

……

18. Neither statements of principle or authority provide any support for the Board’s proposition that the attributes of the parties or the character of the proceedings are irrelevant to the exercise of the discretion to award indemnity costs. In relation to the award of costs generally, it has been accepted, Chu J pointed out, that while:

… the grounds [upon which costs are awarded] must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further. (Emphasis added.)

…… There is no reason why this statement does not apply with equal force to the exercise of the discretion to award indemnity costs.”

79. In my view, costs under the 2^nd Costs Issue should not be on indemnity basis. At the stage of the 2018 Hearing, P’s insistence that he could press ahead with the present action without actually setting aside the HCPI686/2010 Liability/Damages Judgments despite some reminders otherwise by Li Sr’s solicitors prior to the 2018 Hearing was, in my view, unmeritorious, but it could not be said to so patently hopeless as to warrant costs reserved under the 2^nd Order (ie costs of and occasioned by the 2018 Hearing) to be payable by P to Li Sr on indemnity basis.

80. But the same could not be said for costs under the 1^st Costs Issue. In the period after the 2018 Hearing, P had the benefit not only (a) reminders by Li Sr’s solicitors prior to such hearing as to the lack of merits as regards P’s stance, but also (b) clear and cogent explanation by Bharwaney J at the 2018 Hearing that debunked P’s contentions and that shined a clear light on way forward for P (and in this respect I refer to the above discussions and analysis), and (c) further letters by Li Sr’s solicitors after the 2018 Hearing that reiterated the learned judge’s observations. Despite these reminders, P, who all along had legal advice, obstinately clung to the stance that the present action could proceed without actually setting aside the HCPI686/2010 Liability/Damages Judgments. This was a conscious decision by P (which would keep the HCPI686/2010 Liability/Damages Judgments against Kam Luen intact whilst he would proceed with the present action against Li Sr) because even though he commenced HCA2384/2018 and heard what fell from Bharwaney J at the 2018 Hearing (as I have explained in the analysis and discussions above), he “changed his mind” after the 2018 Hearing and withheld service of the Writ of Summons in HCA2834/2018 (see paragraph 41(c) above). In my view, after the 2018 Hearing, P’s stance was an obviously hopeless and unwarranted one, which caused unnecessary stagnation of the present action for a significant period, and which put P at litigation uncertainty that the court might or might not exercise the discretion to extend the validity of the Writ of Summons in HCA2384/2018 for service on Kam Luen. In my view, it is plainly appropriate that Li Sr’s costs under the 1^st Costs Issue, ie costs consequent upon the 1^st Order, should be paid on indemnity basis.

VIII. CONCLUSION

81. In the premises, I grant the following costs orders:

(a) in respect of the 2^nd Costs Issue, P shall pay Li Sr’s costs reserved under the 2^nd Order, ie costs of and occasioned by the 2018 Hearing, on party and party basis to be taxed forthwith if not agreed;

(b) in respect of the 1^st Costs Issue, P shall pay Li Sr’s costs consequent upon the 1^st Order, ie costs consequent upon the direction that “parties to agree on case management directions” under the Bharwaney Order, on indemnity basis to be taxed forthwith if not agreed.

82. In respect of the costs of the dispute over the Costs Issues, there is no reason why costs should not follow event. I grant a costs order nisi that P shall pay Li Sr costs of and occasioned by the Costs Issues (including all costs reserved if any) to be taxed forthwith if not agreed.

83. In respect of all of the above costs orders, I also order that P’s own costs be taxed in accordance with Legal Aid Regulations.

IX. POSTSCRIPT

84. Bharwaney J at the 2018 Hearing colourfully described the developments in HCPI686/2010, DCEC638/2010, the present action and HCA2384/2018 that led to the current confused state of P’s claim for common law damages in respect of the Accident as a “nightmare”. The fact P suffered the Accident more than 10 years ago and was thwarted from final resolution of his common law claim by legal conundrums is, to say the least, regrettable. Delay in litigation gathers costs as a rolling stone gathers moss. Delay in litigation also puts the litigant at litigation risk over legal time limits and over closefisted exercise of post-CJR discretion that sets its face against delay. Here, P was legally aided, so he was at risk over hike in the Director of Legal Aid’s first charge as litigation dragged on over the years.

85. At the 2021 Hearing, I urged P’s solicitors to henceforth take prompt action on behalf of P. Further, as P now has to progress HCA2384/2018, P’s solicitors should carefully assess whether there is any potential conflict of interest, and whether their handling solicitor(s) will have to be witnesses in that action to justify and explain the need for setting aside the HCPI686/2010 Liability/Damages Judgments, in which case they should carefully consider whether they can and/or ought to remain as solicitors on the record for P in that action.

86. Finally, to ensure that there be prompt progress in the future conduct of litigation on behalf of P as an aided person, I direct P’s solicitors to forthwith provide a copy of this Decision to the Director of Legal Aid, so that there will be close monitoring to avoid any further delay in progressing the relevant pieces of litigation arising from the Accident as a result of need to issue appropriate certificates and/or other solicitor-client considerations.

(Marlene Ng)
Judge of the Court of First Instance
High Court

Yu Sun Yau Mak & Lawyers, for the plaintiff

Cheng, Yeung & Co, for the defendant

[1] see para 4 of the order of this court (as PI Master) dated 13 September 2012

[2] see Wong Shu Keung v Kam Luen Consolidator Limited & anor HCPI686/2010, Master J Wong (unreported, 6 May 2013) paras 2-3

[3] see Transcript of the 2018 Hearing referred to in para 50 below at pp 10F-L and 13H-K

[4] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) para 9

[5] see Wong Shu Keung v Kam Luen Consolidator Limited DCEC638/2010, DDJ Thomas Lee (unreported, 23 June 2011)

[6] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) paras 1 and 10

[7] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) para 14

[8] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) paras 5-8 and 12-13

[9] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) para 14 and Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) para 3

[10] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) para 1

[11] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) para 2

[12] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) paras 19-29 and Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) para 4

[13] see Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) paras 5-6

[14] see Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) para 7

[15] see Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) paras 9-16

[16] DDJ Brian Mak subsequently varied the costs order nisi – see Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 4 February 2016)

[17] see Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) paras 17-95

[18] see Wong Shu Keung v Kam Luen Consolidator Limited & ors DCEC638/2010, DDJ Brian Mak (unreported, 12 November 2015) paras 18-48

[19] see Wong Shu Keung v Kam Luen Consolidator Limited & anor DCEC638/2010, HHJ Kent Yee (unreported, 31 October 2013) paras 2 and 6

[20] see letters dated 13 November 2018, 17 September 2019 and 21 February 2020 by P’s solicitors in paras 34,35 and 38 above

[21] see letters dated 22 November 2018 and 30 September 2019 by Li Sr’s solicitors in paras 35-36 above

[22] 2^nd ed Vol 11 para [90.1344] at pp 900-918

[23] see the Transcript at pp 7A-C, 8H-R and 9K-S

[24] see the Transcript at pp 10G-L and 13H-I

[25] see the Transcript at p 8T-U

[26] see the Transcript at p 11N-U

[27] see the Transcript at p 25P-R

[28] see the Transcript at pp 26O-U and 27A

[29] see the Transcript at p 27B-O

[30] see the Transcript at pp 13N-14E

[31] see the Transcript at pp 14D and 15E-N

[32] see the Transcript p 17B-E

[33] see the Transcript p 14P-H

[34] see the Transcript at p 15O-R

[35] see the Transcript at p 21B-D

[36] see the Transcript at pp 18S-U and 19A-D

[37] see the Transcript at p 21K

[38] see the Transcript at p 21 L-R

[39] see the Transcript at p 22A-C

[40] see the Transcript at pp 22K-U, 23A-M, 24T-U, 25A-F and 28F-J

[41] see the Transcript at p 28I-T

[42] see the Transcript at pp 29O-U, 30A-U and 31A-I

[43] 5^th ed paras 1.03-1.04 at p 2

[44] [2004] 2 HKLRD 95, 101-102 (see also Hong Kong Civil Procedure 2021 Vol 1 para 62/App/12 at p 1352)

WONG SHU KEUNG v. LI SING MING

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