CHEUNG SHUI HAN v. DR LUK KA LING

HCPI 653/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 653 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is an appeal against Master Lo’s decision in relation to certain costs orders made by her following a consideration of the plaintiff’s solicitors’ summons and a summons issued by the defendant’s solicitors to counter the former. The appeal is quite without merit and has nothing to do with the plaintiff’s interests. It has been a wasteful effort by the plaintiff’s solicitors to salvage something from the adverse costs order. Accordingly I dismissed it and said I would give a written judgment later.

2.  The claim is in medical negligence.  The writ was issued by the plaintiff in person on 9 November 2009.  She obtained a Legal Aid Certificate on 15 July 2010.  The Statement of Claim was served on 1/2 November 2010 and the Defence on the 14 December.  The defendant’s expert report was not served with it and it was this fact that precipitated the plaintiff’s solicitors demanding and unreasonable reaction.

3.  On that 14 December 2010 (and the narrow timescale is a relevant factor in this context) the plaintiff’s solicitors wrote to the defendant’s solicitors asking them to serve the expert report upon which they relied in accordance with paragraph 67(10) of the Practice Direction 18.1 within 10 days.  The relevant part of the Practice Direction reads :

“… The Defendants should serve together with their Defence … if they are available … and in so far as this is practicable :

…

(10)   in all Medical Negligence cases, a copy of any expert medical report relied upon as to liability and causation.”

The underlining, for emphasis is mine.  The plaintiff’s solicitors in their approach read “should” as meaning “must” and either ignored or overlooked the other qualifying clauses.  Furthermore, a consideration of the spirit and purpose of the Practice Direction as well as the text, will reveal that there should be a tempering of the adversarial approach to such litigation.  It is for guidance and the parties should make “only such interlocutory applications as are necessarily required for the expeditious resolution of the ultimate dispute and the saving of costs.” (My emphasis).  In paragraph 2 of the Practice Direction is stated :

“It is imperative that practitioners should … familiarize themselves with the Rules of the Court … especially the underlying objectives” (Again my emphasis though it should not be necessary).

These underlying objectives are set in stone.

4.  Correspondence from the plaintiff’s solicitors prior to the service of the Statement of Claim was full of hot air, repeated threats and hostile tone, all to be condemned, and redolent of precisely the uncooperative stance that the old and new Practice Directions sought to discourage if not eliminate.  On 31 August 2010 the plaintiff’s solicitors wrote :

“Our client’s expert report is yet to be finalised and there is at this stage no expert report on the part of our client which can be disclosed.”

This is almost word for word what the defendant’s solicitors wrote in December which precipitated the application, which came before the Master.  The plaintiff’s solicitors had been harping on about the need to avoid protracted correspondence which served only to generate costs, yet this is precisely what they were doing.  The pitch and tone of this unnecessary correspondence thus continued in December 2010.

5.  Following the peremptory request of 14 December 2010 the defendant’s solicitors wrote :

“We will finalise and serve the expert report … after the exchange of witness statements”

echoing substantially the stance taken by the plaintiff’s solicitors two months before they served the Statement of Claim.

6.  Not content with this, and failing to realise it was a reasonable reaction and identical to their own of 31 August, but without the assertive approach and pointless mutterings about “privileged documents”, the plaintiff’s solicitors replied on 16 December 2010 with an incorrect statement about the effect of the Practice Direction.  I had to point out to Miss Kwan that the Practice Direction does not “prescribe that the expert report be served with the Defence”. The defendants were now asked to provide their expert report within 28 days giving them 10 days to reply with confirmation that the report would be ready for service within that time, failing which the plaintiff’s solicitors would “apply to the court for direction, with costs”.  Their letter also raised other points unnecessarily, and, their manner was in my view becoming tiresome. 

7.  The defendant’s solicitors replied on 21 December 2010 as they had said earlier, “we will serve an expert report when it is finalized and ready.”  On 28 December 2010, one week later, the plaintiff’s solicitors took out the summons under review.  On 3 January 2011 the defendant took out a summons to protect their position and, in effect, to show how unreasonable the plaintiff’s solicitors were being.  The two summonses were sensibly consolidated with a return date of 2 March 2011.  By this time it had been overtaken by events — the defendant served their expert report on 8 February 2011 within two months of the filing of the Defence — a shorter period than the plaintiff had needed for its own expert report.  The hearing of the summons was thus largely concerned with costs.

8.  Master Lo gave a reasoned decision a transcript of which is in the bundle.  She took a dim view of the plaintiff’s solicitors’ attitude and correspondence.  She criticized their taking out of a summons as premature.  Quite properly she said that the defendant should have been given time to investigate and that that was in accordance with the requirements of the Practice Direction.  I agree entirely.  Since her reasons are set out fully I do not need to repeat them “in extenso”.  Her costs orders reflected these views.  They were in effect that the plaintiff’s solicitors should have no costs on their summons.

9.  I will deal with these shortly since the appeal is against her decisions in three respects :

(1)   No order for costs on the plaintiff’s summons. This reflects the Master’s views on the merits of the application — see page 4 paragraph B-E of the transcript.

(2)   No Legal Aid Taxation of costs of the plaintiff’s application.  [See page 4 paragraph E-H].

Miss Kwan sought to argue before me that the Master was wrong in law to order no Legal Aid Taxation of costs.  She relied upon Regulation 10(4) of the Legal Aid Regulations, Cap. 91A, which reads :

“In any case where there has been no order for taxation, the amount of the costs shall be fixed by the Director.”

This is no authority for saying that the Master’s order was wrong in law.  The reasoning behind her order is self-evident but I shall nonetheless spell it out.  She found the application premature and the correspondence which had preceded it, before and after the action was commenced, was “outright unfriendly” and “not in the interests of their client”.  I have made it clear that I agree.  It was entirely wasteful.  Therefore it was inappropriate not only that the plaintiff’s solicitors should have no costs of the summons but that they should have no costs out of the Legal Aid fund, i.e. no costs paid out of public funds or, if that is not clear enough, they should bear their own costs.

10.  I was also referred by Miss Kwan to Regulations 15 and 20 of the same Ordinance but they are not relevant.  I shall come back to the question of any payment of costs by the Director of Legal Aid at a later stage after I have heard argument as to the costs of this appeal.

(3)  Costs of the defendant’s summons be defendant’s costs in the cause — i.e. defendant’s costs if she succeeds in the action.

In practice since the two summonses were heard together and the defendant’s report had already been served the extra costs would be minimal and the defendant had succeeded in holding the position.  The real bone of contention had been the plaintiff’s summons.  The Master’s decision fell well within her discretion in a situation where she was trying to achieve a sensible solution in relation to the costs, — it is sometimes impossible to disentangle one application from another as far as costs are concerned — and I am sure that she made the right decision.  She has most decidedly not erred in law nor in the proper exercise of her discretion.

11.  This appeal is dismissed. Pointless satellite litigation of this nature is strongly to be discouraged. All practitioners should note carefully Order 62/2/11 in Hong Kong Civil Procedure (“the White Book”) 2011 Vol.1 (Pp.1093/4) [Approach of the appellate court].

12.  The court of its own volition has the power to make a wasted costs order under Order 62/8A.  I informed the parties that I would hear representations on this after I had delivered this judgment so that they would have good notice of this consideration.

[JUDGMENT ON THE APPEAL DELIVERED FOLLOWED BY ARGUMENT ON COSTS]

13.  When I gave my short decision on 26 May and indicated that a full judgment would be delivered later, I made it clear that the Court, of its own volition, had the power to raise the matter of a wasted costs order and would do so, and the reason I dealt with it then in that way was to give the parties an opportunity to prepare anything that either of them wanted to say in relation to it.  So it should come as no surprise to Miss Kwan today.  Nonetheless, she has made an application for leave to file an affidavit or affirmation in respect of the question of wasted costs. 

14.  I cannot see how any affirmation or affidavit could possibly be of assistance.  All the matters are clearly set out in the documentation which was considered by the Master and all the papers that were put before me and the preparation of affidavits or affirmations would be a waste of time and a waste of paper and utterly useless.  So I reject that application.

15.  I have now heard argument on the question of the wasted costs under Order 62, rule 8(A) and (B) and Miss Kwan has had the opportunity, which I indicated then on the 26^th, of putting forward any cogent evidence or argument as to why I should not make such a wasted costs order.  In my view, nothing has changed the picture.  There was no justification for this appeal and I have already set out the position fully. 

16.  I make a wasted costs order in favour of the defendant’s solicitors against the plaintiff’s solicitors, such costs to be taxed if not agreed.

17.  There will be no order for a Legal Aid taxation either.  This means that the plaintiff’s solicitors should not have their costs out of public funds.  It also means, whether or not the plaintiff succeeds in her action, that no costs should be paid by the plaintiff under the original order of the Master or on this order by me in respect of the appeal. If, as Miss Kwan believes, the Director of Legal Aid can still, in his discretion, order costs in favour of the plaintiff’s solicitors, whether from public funds or from the plaintiff, in my view, that would be tantamount to an effort to circumvent court orders and, in any event, would be a wrong exercise of discretion.

18.  Finally, Miss Kwan has made an application for leave to appeal.  This I refuse. There is no reasonable prospect of success and there is no reason, in the interests of justice, why there should be an appeal.  Everything indicates that it would be entirely contrary to the interests of justice for me to grant leave.

19.  I proposed to assess the costs today but Mr Leong has indicated that he is in no position to provide all the details today to enable me to do that.  Rather than have a further expensive hearing I have decided to leave it to the parties.