TSE CHIU v. 郭健 AND OTHERS

DCEC 1141/2018

[2021] HKDC 400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1141 OF 2018

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DECISION

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1.  This is a case of employees’ compensation where I have made a costs order nisi to be made absolute within 14 days. The applicant has taken out a summons to vary the costs order nisi.

2.  The costs order nisi made was against the 2^nd and 3^rd respondent in favour of the applicant and the 1^st respondent’s costs was to be paid by the applicant to be taxed if not agreed with certificate for counsel and the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations. 

3.  The applicant’s counsel, Mr Hu, has invited me to consider the reasonableness in joining the 1^st respondent in this case.  He has relied on the case Fung Chun Man v Hospital Authority [2012] 1 HKC 531 in which Bharwaney J held at paragraphs 5 to 7 of the judgment:-

“5. …The court must, in each case, determine whether or not it was reasonable for the plaintiff to proceed against the successful defendant. If it was, the unsuccessful defendant may be ordered to pay the successful defendant’s costs, either directly, via a Sanderson order, or indirectly, via a Bullock order. As explained by Vaughan Williams LJ stated in Besterman v British Motor Cab Co. Ltd. [1914] 3 KB 181 at p.187, such costs form part of the reasonable costs of the action:

“… The proper way is – do not join any defendant unreasonably; if the facts are such that it is reasonable to join them both and reasonable to be in a state of uncertainty as to which of the two is the really guilty one, then it is part of the reasonable costs of the action that the costs of the action which you have launched against one of those defendants, and who has succeeded in defending himself, should be borne by the man who is to blame.”

As was made clear in the English Court of Appeal decision in Goldsworth v Brickell [1987] 1 CH 378, the authority of the court over costs is very wide and the suggestion in the 1985 Edition of The Supreme Court Practice (repeated at marginal note 62/1/6 of Hong Kong Civil Procedure 2012) that a Sanderson or Bullock order will not be made where there are different causes of action is not sustained by the authority of Mulready v Bell [1953] 2 All E. R. 215 which dealt with a very special case.

6. The classic case where a Sanderson or Bullock order is made is where the unsuccessful defendant blames the successful defendant and causes the plaintiff either to join the successful defendant or to continue the proceedings against the successful defendant. However, even absent such circumstances, it may be reasonable for the plaintiff to join the unsuccessful [sic] defendant, in cases where the plaintiff is faced with a denial of liability by the unsuccessful defendant and the real risk that the unsuccessful defendant may either be absolved from liability or unable to satisfy any judgment that may be obtained against him. In such circumstances, if the plaintiff is in possession of evidence that can implicate the successful defendant, evidence that is neither tenuous nor speculative nor far-fetched, it would be reasonable for the plaintiff to join or to proceed against the successful defendant and the court, at the conclusion of such a case, may, in the exercise of its discretion over costs, make a Sanderson or Bullock order.

7. In the context of actions in tort, it does not matter that the claim against the successful defendant was not make in the alternative but was a separate and independent cause of action. Although a Sanderson or Bullock order is unlikely to be made in a case of successive and unrelated torts by different tortfeasors causing different damage, whether tortfeasors jointly caused the same damage or whether they separately caused different damage or only one of them caused the damage may only be known after a final determination by court. In exercising its discretion whether or not to make a Sanderson or Bullock order, the court would have regard to all the circumstances of the case and the state of the evidence to determine whether or not it was reasonable for the plaintiff to pursue the successful defendant. In making its decision, the court must be careful not to lose sight of the uncertainties surrounding the case before its conclusion (per Bokhary J., as he then was, in Lee Lai Ha & Anor. v. Hong Sau Ling & Anor. [1993] 1 HKLR 86).

It may be reasonable for the plaintiff to join the unsuccessful defendant, in cases where the plaintiff is faced with a denial of liability by the unsuccessful defendant and the real risk that the unsuccessful defendant may either be absolved from liability or unable to satisfy any judgment that may be obtained against him. In each(such?) circumstances, if the plaintiff is in possession of evidence that can implicate the successful defendant, evidence that is neither tenuous nor speculative nor far‑fetched, it would be reasonable for the plaintiff to join or to proceed against the successful defendant and the court, at the conclusion of such a case, may, in the exercise of its discretion over costs, make a Sanderson or Bullock order.

In exercise of(exercising?) its discretion whether or not to make a Sanderson or Bullock order, the court would have regard to all the circumstances of the case and the state of the evidence to determine whether or not it was reasonable for the plaintiff to pursue the successful defendant.  In making its decision, the court must be careful not to lose sight of the uncertainties surrounding the case before its conclusion.”

4.  Mr Hu has also relied on Chong Ngan Seng v. China Harbour Engineering Co Ltd., CACV 54/2012, 25 September 2013, unreported, at §§32-33.

5.  Having heard Mr Hu’s submission, I accept that the applicant in the commencement of these proceedings was faced with uncertainty as to which respondent was the employer.  In fact, the 1^st respondent did take a role in recruiting the applicant.  He was involved in the running of the daily business and administration of the 3^rd respondent.  He was also a party to the WeChat group and from time to time gave instructions to the applicant. 

6.  I also accept that there was a real risk of the applicant not being able to prove against the 3^rd respondent and being left with either the 1^st and 2^nd respondent as his employer.  Hence, the joining of the 1^st respondent was reasonable. 

7.  I accordingly make a costs order to be varied as follows:

“The 2^nd and 3^rd respondents do pay the applicant and the 1^st respondent’s costs of these proceedings, including this application and any costs previously reserved, to be taxed if not agreed, with certificate for counsel. The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.”