ELIJAH SAATORI v. RAFFLES MEDICAL GROUP

CACV184/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.184 of 2009

(On appeal from HCPI No.1114 of 2006)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Hon. Yuen JA (giving the judgment of the court):

1.   On 29 January 2010 we gave judgment in this appeal, allowing the Plaintiff’s appeal from Deputy Judge Carlson’s order striking out HCPI1114/2006 but dismissing his appeal from a Restricted Applications Order (RAO) and Restricted Proceedings Order (RPO) made by the judge.  The parties having agreed that costs should follow the event, and as each party had succeeded in half of the appeal, we made an order that there should be no order as to costs of the appeal but that there should be an order nisi that the Plaintiff bear half of the costs before the judge. 

2.   There was no application from either party to vary that order nisi and so it became absolute after 14 days pursuant to the Rules of the High Court (see Order 42 Rule 5B(6)).

3.   On 9 February 2010 the Plaintiff issued a Notice of Motion for leave to appeal to the Court of Final Appeal.  The Plaintiff is firstly seeking to overturn this court’s orders on costs – as he considers that the bulk of the appeal was about overturning the Strike Out decision and also that he should be awarded part of the costs before the judge.  Secondly he also contends that there is “the inherent weakness in upholding the RAO judgment” as he says certain applications he made were not unwarranted, contrary to this court’s findings.

4.   As far as the first point was concerned, at the hearing on 12 March 2010 it was pointed out to the Plaintiff that if he had wished to challenge this court’s order nisi that he bear half of the costs before the judge, he should have applied within 14 days to vary that order.  The Plaintiff claimed not to know the effect of an order nisi, but he did not take any steps to find out its meaning from the Rules of the High Court or the Unrepresented Litigants Resource Centre.  Having been apprised of it by the court, he indicated that he wished to make an application out of time to vary the order nisi and sought an adjournment to put in the necessary documents.  The adjournment was opposed by counsel for the Defendant who argued that his client would be prejudiced by having to instruct lawyers to make a further appearance in court.  The Defendant’s counsel indicated that the costs that would be additionally incurred as a result of the adjournment would be $4,000.

5.   We take the view that since the Defendant suffered no prejudice other than costs and since the Plaintiff is not legally represented, an adjournment should be granted on terms to enable the Plaintiff to make an application for an extension of time to apply to vary the costs order nisi, the condition being that the Plaintiff do within 14 days from the date of this order pay into court for the account of the Defendant a sum of $4,000.  

6.   As for the second point, we would exercise our discretion to wait until after the Plaintiff’s application to vary the costs order nisi out of time is resolved before dealing with the application for leave to appeal to the Court of Final Appeal in one go.