TANG KOON MING v. KIN WING CONSTRUCTION CO LTD AND ANOTHER

DCEC 129/2017

[2018] HKDC 109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 129 OF 2017

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DECISION ON COSTS

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A.　Introduction

1.  In these employees’ compensation proceedings, the 1^st and 2^nd respondents deny liability in respect of an alleged accident on 22 March 2016 allegedly arising out of and in the course of employment. They issued a summons (“Summons”) on 29 September 2017 after the first directions hearing on 4 August 2017. The parties are respectively represented by solicitors, Chow Wong & Lawyers (“Chow Wong”) and Fongs (“Fongs”).

2.  At the outset Fongs withdrew para 5 of the Summons, leaving paras 1 to 4 of the Summons concerning two matters – discovery by interrogatories under O.26 of the Rules of the District Court; and joint medical examination of orthopaedic specialists, Dr Wong See Hoi (“Dr Wong”) for the applicant and Dr Chun Siu Yeung (“Dr Chun”) for the respondents.

3.  The application for interrogatories is contained in para 1 of the Summons, which prays for an order that:

“1. The Applicant do provide his answers by way of an affidavit to the Interrogatories as set out in the Schedule attached hereto to the Respondents on or before 11 October 2017”.

4.  Attached to the Summons is a “Schedule of Interrogatories” comprising of “Interrogatory 1” and “Interrogatory 2” (which are jointly referred to as “Interrogatories”). The Interrogatories seek answers in respect of two previous employees’ compensation applications and personal injuries actions in all of which proceedings the applicant was named as the claiming party – DCEC 867 of 2002 and HCPI 1378 of 2003 in Interrogatory 1; and DCEC 597 of 2007 and DCPI 1730 of 2008 in Interrogatory 2.

5.  The applications in relation to the joint medical examination are in paras 2 and 3 of the Summons as follows:

“2. Unless by 4:00 p.m. on 11 October 2017 the Applicant is to attend a joint medical examination conducted by the parties’ appointed orthopaedic experts, namely Dr Wong See Hoi for the Applicant and Dr Chun Siu Yeung for the Respondents, the Applicant’s claim herein be dismissed with costs of the proceedings to the 1^st and 2^nd Respondents in any event to be taxed if not agreed;

3.   The Applicant do pay the Respondents’ costs of and incidental to the medical examination originally fixed for 4 September 2017 including a sum of $3,000 being the cancellation charge levied by Dr Chun Siu Yeung.”

6.  Before the hearing of the Summons on 12 December 2017, the applicant on 23 November 2017 filed, without a court order, two documents – an affirmation in Chinese (“Opposing Affirmation”) in opposition to the Summons, and the “2^nd Answer of Interrogatories by the Applicant” (“Applicant’s Answers”), which are accepted to be answers to the Interrogatories.

7.  At the hearing, the applicant and the respondents were represented by their solicitors, respectively Miss Chow and Miss Wong.  In light of the Applicant’s Answers, Miss Wong was content that apart from costs, there was no need to make any order on para 1 of the Summons. 

8.  In para 2 of the Summons, the respondents sought an order to compel the applicant to attend a joint medical examination (which is to be discussed in paras 16 to 23 below) on 11 October 2017. However, as the application was heard after that date of 11 October, it was evident that no meaningful order could be made.  In any event, in the oral reasons that I gave at the hearing, I had stated that the application would have been refused on the ground that the court had not given any expert directions in these proceedings. Hence, the only outstanding issue was costs.

9.  The matter that could not be resolved at the first hearing was the cancellation fee of Dr Chun, the subject matter of para 3 of the Summons.  Since the respondents did not file any supporting affidavit, I did not have sufficient information to enable this court to determine the said dispute on cancellation fee and the costs of the Summons at the hearing.  Hence, I adjourned the hearing and directed the parties to lodge an agreed chronology and written submissions on costs.

10.  At the adjourned hearing on 8 January 2018, the outstanding dispute on the cancellation charge was resolved by the applicant agreeing to pay Dr Chun $1,000 for his cancellation charge. The parties however were unable to agree to the costs of the Summons.  For the applicant, Miss Chow asked for costs in the cause. Miss Wong, on the other hand, submitted that the respondents should have the costs of the Summons. Alternatively, Miss Wong’s fallback position is to seek an order that there be no order as to costs.

11.  In the result, the only remaining issue is the costs of the Summons (the subject matter of para 4), which I will now determine in this decision.

12.  Given that the chronological events in relation to the joint medical examination appear to be earlier in time, it would be more convenient to deal with the costs of paras 2 and 3 of the Summons first.

13.  The facts discussed below are largely taken from the correspondence exchanged between the solicitors that are either exhibited to the Opposition Affirmation or attached to the Joint Chronology of Events dated 20 December 2017 which the respondents lodged with the court.

B.　Costs for paras 2 and 3

14.  To understand how the disputes on the joint medical examination and the subsequent incurring of the cancellation charge of Dr Chun arose, it is necessary to start with the request made by the respondents requiring the applicant undergo a s.16[1] examination.

15.  It is not in dispute that after the applicant met the alleged accident on 22 March 2016, the respondents’ periodical payments discontinued on 3 November 2016. The respondents seem to be skeptical about the degree and extent of the seriousness of the applicant’s injuries. This perhaps led to the demand first made on 23 December 2016 by Fongs requiring the applicant to attend an examination by his own expert, Dr Chun.  The so-called s.16 examination by Dr Chun nonetheless did not take place after a series of the solicitors’ correspondence exchanges between 23 December 2016 and 6 May 2017.

16.  By their letter dated 10 May 2017, Chow Wong proposed, for the first time, a joint medical examination by Dr Wong, the applicant’s expert. The correspondence exchanges which ensued between the solicitors were mostly discussions about the fixing of a date for a joint medical examination by Dr Wong and Dr Chun, which discussions finally led to the fixing of a date of 4 September 2017 for the joint medical examination. They further agreed on the proposed timeframe as to when the joint medical report should be ready.

17.  The above agreement  was crystallized into paras 1 and 2[2] of a consent summons (“Consent Summons”) which the applicant filed the day before the first directions hearing of these proceedings on 4 August 2017. 

18.  In the normal course of event, case management directions for legally represented proceedings would have been disposed of on paper without a hearing having to be held.  I declined to approve the Consent Summons as I had reservations in relation to the terms sought in paras 1 and 2 of the Consent Summons having regard to the information that was disclosed in the Appendix “D” Chow Wong filed on 31 July 2017.  In it, it was stated that the applicant had not been assessed by the medical board of the Labour Department. Hence, I consider directions regarding medical experts to be premature.  I expected the parties, for the purpose of saving costs, to be more attuned to the refraining from the incurring of any unnecessary costs in the appointment of medical experts until after the issuing of the relevant assessment certificates by the medical board.

19.  Upon the confirmation by Miss Chow and Miss Wong who attended the directions hearing that the applicant’s sick leave had not yet expired, and given the fact that the assessment by the board has not taken place, I hence declined to grant an order in terms of paras 1 and 2 of the Consent Summons.

20.  Without obtaining the leave of the court, the parties would have exposed themselves to risk as to costs unless they had reached agreement as to such costs with the other party (see O.38 r.36).

21.  From the correspondence placed before the court, I am unable to find any reference as to any such agreement having been reached. Quite the contrary, I believe, from the various disagreements shown in the correspondence that the parties are far from ad idem in the matter of costs   of the experts.

22.  The parties, after the refusal by this court to approve their proposed directions regarding joint medical examination, still seemed to be completely oblivious to the risks on costs. After the directions hearing on 4 August 2017, despite the court’s refusal to accede to the parties’ proposed directions in directing the holding of the scheduled joint examination on 4 September 2017, the solicitors did not forthwith take steps to cancel the appointment, which, in my view, they should have done.

23.  When the scheduled appointment was aborted on 31 August 2017, it was not due to the court’s refusal to grant the expert directions. Rather it was evidently due to Miss Chow’s coming to the view that the medical appointment was premature in view of the outstanding medical documents expected from a government hospital. After Miss Chow on 31 August 2017 communicated her intention to cancel the scheduled appointment to Miss Wong, she further unilaterally telephoned Dr Wong to cancel the appointment. When Fongs later learned of the cancellation, they sent a written demand to Chow Wong for the settlement of Dr Chun’s cancellation charge, hence giving rise to para 3 of the Summons.

24.  The discussion above, in my judgment, clearly shows that both parties were at fault in relation to the matter that has given rise to paras 2 and 3 of the Summons.  Had they conducted these proceedings with the underlying objectives in mind in seeking to save costs, they would not have fixed the appointment for a joint medical examination in the first place. Pertinently, I consider that the parties are at fault in making arrangement for joint medical experts at an early stage when they were clearly aware that the applicant’s sick leave had not expired and that the assessment by the medical board was still pending.

25.  For the foregoing reasons, I do not find it appropriate to order the costs of the Summons to be in the cause (as Miss Chow suggested) for such costs order does not adequately reflect the parties’ voluntary undertaking of risk as to costs, which I have stated in para 20 above.  Granting an order that there be no order as to costs would reflect the risk the parties have undertaken.  I so order.

C.　Costs for para 1: discovery by interrogatories

26.  Prior to the issuance of the Summons, Fongs had already by letter 12 September 2017 made a request for answers, which request is the same as the Interrogatories (save that the request had one additional request for an answer in relation to a High Court Civil Action, HCA 9933 of 2000).  In the letter, the applicant was given 7 days, i.e. by 19 September 2017, to provide the answers sought.

27.  Chow Wong did not respond within the timeframe Fongs imposed in the letter. The Summons for the Interrogatories was henceforth issued on 29 September 2017.

28.  It was only after the Summons was issued that Chow Wong responded by letter on 16 October 2017 contending that the respondents were fishing for evidence. It was further suggested that the applicant would in any event require sufficient time to provide answers given the fact that the Interrogatories were about very old cases (9 to 17 years old).

29.  This application for discovery by interrogatories is brought pursuant to O.26. The analysis of the application should as much as possible be governed by this rule.  In my view, when Fongs first issued the request by letter referred to above, albeit that it was not in the form provided for in O.26 r.2, which requires a period of not less than 28 days to be given to the party served for the provision of the answers, they should have, like the provision made in O.26 r.2, also however allowed a reasonable time for the applicant to provide the answers. This is particularly so as the subject-matter of the requests would unavoidably involve the applicant and Chow Wong in retrieving old case files and documents. Seven days would be hardly sufficient for such document-retrieving exercise to be completed.  In the circumstances, I consider that Fongs were wholly unreasonable, bordering on being oppressive, in only allowing 7 days for the applicant to provide the answers sought.

30.  I consider that the similar time stipulated in O.26 r.2 should have been allowed even though the letter of 12 September was not, strictly speaking, in the format of interrogatory provided for in O.26. Had a similar time been provided, the applicant should have at least been given until 10 October to provide the answers.  It is noted that the deadline imposed in para 1 of the Summons was stated to be 11 October 2017, which is incidentally more or less a period of 28 days. Thus viewed, had Fongs been more reasonable in the giving of time to allow the applicant to provide the answers, I would have thought that the Summons (for para 1) might not have been necessary. When the Summons was issued (on 27 September 2017), there had only been a lapse of 2 weeks since the request was made. For this reason, I consider that the application had been made prematurely.

31.  I am unable to accept Miss Wong’s argument that the applicant’s voluntary serving of the Applicant’s Answer without order would be regarded as the Interrogatories having merits. I do not consider that the voluntary provision of the Applicant’s Answer should be accepted as confirmation of the application having merit. From the contents of the letter of Chow Wong on 16 October (see para 28 above), the applicant had clearly disputed the merits of the application.

32.  As stated above, I consider that the application was made prematurely. Further, notwithstanding the voluntary provision of the Applicant’s Answers before the hearing, it is not correct to say that the court has determined the merits in the respondents’ favour. What is most important in my judgment is the undisputed time and effort the applicant and his solicitors would have spent in retrieving old files to enable them to provide the answers. In the event, despite having been served with the Applicant’s Answers, the respondents took no step to inform this court of the respondents’ satisfaction with the adequacy of the answers given.

33.  In the circumstances, I reject both positions advanced by Miss Wong – costs to the respondents or no order as to costs.  I consider a just order will be the one put forth by Miss Chow, which is an order of costs in the cause.  I so order.

D.　Summary

34.  I grant the following costs orders for the Summons:

(1) Para 1:  there shall be an order of costs in the cause, including costs reserved.

(2) Paras 2 and 3:  there shall be an order of no order as to costs, including costs reserved.

35.  Further, as the Opposition Affirmation was filed without leave of the court, I should separately rule on the costs of this affirmation.  In this case, I do not consider the Opposition Affirmation to have been necessary as the contents were mostly a repeat of information contained in the correspondence exchanged between the solicitors. In my view, it is preferable for such evidence to be adduced by way of attachments to the written submissions of the parties (as the parties later indeed did in the agreed chronology). Hence, when a party files an affirmation without obtaining prior leave it is at risk as to costs, and this practice should be discouraged. To mark the court’s disapproval, I further direct that the costs orders that I made above shall exclude any costs of and occasioned by the preparation and filing of the Opposition Affirmation. In other words, I disallow costs of the Opposition Affirmation.