THE JARDINE ENGINEERING CORPORATION LTD. v. NGAI MOU CHING

IN THE COURT OF APPEAL

1997, No. 141
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from an order of Her Honour Judge Kwan, made on 17 June 1997, in a fatal accident claim under the Employees' Compensation Ordinance, Cap. 282. By the order under appeal, the judge gave the employer leave to withdraw a summons for specific discovery which the employer had taken out. The judge ordered that the costs of the employer's application should be costs in the cause. The employer now seeks to challenge that order as to costs; it says that an order for costs ought to have been made in its favour.

Background

2. The history of the matter is somewhat curious.

3. The employer, dissatisfied with the documents discovered by the claimant, and minded to contend that she was dependent only partly upon the employee, sought to obtain specific discovery of a whole raft of documents. (This sort of discovery might perhaps be appropriate in a much heavier action than this one, which involves a comparatively small claim; but nothing turns on this point for the purposes of this appeal.)

4. By the time the application came to be heard, the claimant had made, and at the commencement of the hearing handed to the employer's solicitor, an affirmation which made (at any rate, to some considerable extent) the specific discovery for which the employer had asked. The employer's solicitor then had to decide what to do. He was given little time by the judge to consider his position; but in the end, what he decided to do was this. He decided to apply to the judge for leave to withdraw his summons for specific discovery, his object being, apparently, to give himself time to consider the contents of the affirmation and to renew his application for specific discovery if so advised.

The outcome

5. Having elected to take that course, the employer is, in my judgment, stuck with the result. It does not seem to me possible to give the employer now the relief it wants, which is the order for costs in its favour which might have been appropriate if its solicitor had not withdrawn the application. It would have been possible for the employer to throw in its hand on the substantive issue if it had chosen to do so, and to have contented itself with asking for an order for its costs, at any rate down to the time when it was provided with the affirmation (instead of the order which the judge in fact made, for costs in the cause, the logic of which is difficult to discern). But the judge made her order only after an application had been made to her by the employer for leave to withdraw the summons for specific discovery; and, usually, a party will be given leave to withdraw an application only if he submits to an order that he pay the other side's costs.

6. By its application here for leave to withdraw that summons, the employer gained a certain advantage. Instead of losing, which it might have done, and being left only with its chances on an appeal, it bought for itself the chance to live to fight another day and make a further application for specific discovery, if so advised. (It was not put on terms that it should not make any further application in that regard.)

7. Having obtained that advantage, at its own request, it cannot, in my judgment, now invite this court to interfere with the judge's order.

Conclusion

8. For these reasons, I would dismiss this appeal.

9. I have some sympathy with the employer, because I do not think the order for costs in the cause was a logical order to have made. On the other hand, the employer was at risk below that the costs order might have been less generous to it than that.

10. In these circumstances, I think the best that this court can do to achieve justice, curious though the situation is, is to dismiss this appeal.

Keith, J. :

11. I agree that this appeal should be dismissed for the reasons given by Godfrey, J.A.

Nazareth, V.-P. :

12. I also agree. The appeal is accordingly dismissed.