LIMBU LAXMI PRASAD v. BACHY SOLETANCHE GROUP LTD AND ANOTHER

DCPI 2190/2021

[2026] HKDC 1275

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2190 OF 2021

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BETWEEN

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DECISION ON COSTS

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A. INTRODUCTION

1.  On 23 February 2026, I handed down judgment (“Judgment”) in favour of the plaintiff (“Mr Limbu”) and assessed damages arising from an accident that occurred on 12 September 2018 at HK$69,827 (“Judgment Sum”), together with interest as set out in paragraph 73 of the Judgment. I also made a costs order nisi[1] directing that the defendants shall pay the plaintiff’s cost of this action, to be taxed if not agreed (“Costs Order Nisi”).

2.  By a Summons filed on 6 March 2026 (“Costs Summons”), the defendants sought an order that the Costs Order Nisi be varied such that:

(1) The defendants do pay the plaintiff’s costs in this action (including all costs reserved, if any) up to and inclusive of 19 September 2025, on a party-and-party basis, to be taxed if not agreed;

(2) The plaintiff do pay the defendants’ costs in this action after 19 September 2025, with Certificate for Counsel (including all costs reserved, if any) on an indemnity basis, to be taxed if not agreed; and

(3) No interest shall accrue on the Judgment Sum after 19 September 2025.

(4) Out of the HK$250,000.00 paid into Court by the defendants pursuant to two Notices of Sanctioned Payment dated 19 August 2025 and 11 November 2025[2]:

(a) A sum of HK$79,986.68, comprising the Judgment Sum and interest up to and inclusive of 19 September 2025 (being the last date on which the plaintiff could have accepted the First Sanctioned Payment) in the sum of HK$10,159.68 (“Judgment Sum and Interest”), shall remain in Court until further order pending agreement by the parties or taxation of the defendants’ costs and disbursements in this action; and

(b) The balance of the Sanctioned Payments in the sum of HK$170,013.32 together with any interest accrued thereon, be paid out forthwith to the defendants through their solicitors, Messrs Winnie Leung & Co. (“WL”).

In the Costs Summons, the defendants further sought an order that the plaintiff do pay the defendants’ costs of this application on an indemnity basis, to be taxed if not agreed.

3.  The Costs Summons was supported by the Affirmation of Yeung Ping Kuen Ivan (“Mr Yeung”), a partner of WL, dated 6 March 2026 (“Yeung’s Affirmation”).

4.  On 28 April 2026, the Court directed as follows:

(1) The Costs Summons be dealt with on paper by me.

(2) The plaintiff shall file and serve his affirmation/affidavit in opposition on or before 12 May 2026.

(3) The defendants shall file and serve any affirmation/affidavit in reply on or before 26 May 2026 (if any);

(4) The defendants shall lodge and serve written submissions (with authorities, if any, not exceeding 10 pages in font size 14, double-spaced) on or before 9 June 2026;

(5) The plaintiff shall lodge and serve written submissions (with authorities, if any, not exceeding 10 pages in font size 14, double-spaced) on or before 23 June 2026; and

(6) No further affirmation/affidavit or written submissions shall be filed or lodged without leave of the Court.

5.  Despite having been granted leave to file an affirmation in opposition, the plaintiff failed to do so. On 9 June 2026, the defendants filed their written submissions. Despite having been granted leave to file written submissions, the plaintiff likewise failed to do so.

6.  Having considered Yeung’s Affirmation and the defendants’ written submissions, I now deliver my decision on the Costs Summons.

7.  Unless otherwise stated, in this Decision on Costs I shall adopt the abbreviations used in the Judgment.

B. APPLICABLE LEGAL PRINCIPLES

8.  In determining the defendants’ application to vary the Costs Order Nisi, I have had due regard to the following statutory provisions and principles:

(1) The costs of and incidental to all proceedings in this Court are in the discretion of the Court, which has full power to determine by whom and to what extent the costs are to be paid: s.53(1), District Court Ordinance (Cap. 336).

(2) In exercising its discretion as to costs, the Court shall, to such extent, if any, as may be appropriate in the circumstances, take into account the factors set out in paragraphs (aa) to (g) of O.62, r.5 of the Rules of District Court (“RDC”), including, in particular, any payment into court and the amount of such payment: O.62, r.5(b), RDC.

(3) Under O.22, r.23 of the RDC, where the plaintiff fails to obtain a judgment better than the sanctioned payment, the Court shall make the orders referred to in paragraphs (2), (3) and (4), unless it considers it unjust to do so. Paragraphs (2), (3) and (4) provide:

“(1) ….

(2) The Court may by order disallow all or part of any interest otherwise payable under section 49 of the Ordinance on the whole or part of any sum of money awarded to the plaintiff for same or all of the period after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(4) The Court may also order that the defendant is entitled to:-

(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and

(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.”

9.  In determining the defendants’ application for payment out of the balance of the Sanctioned Payments (HK$170,013.32), and for the Judgment Sum and Interest (HK$79,986.68) to remain in Court, I have had due regard to the following statutory provisions and principles.

10.  O.22A, r.1(1) of the RDC provides:

“Subject to Order 22, rule 17, any money paid into court in an action (whether or not in accordance with Order 22) may not be paid out except in pursuance of an order of the Court which may be made at any time before, at or after the trial or hearing of the action.”

11.  As held in MGA Entertainment Inc formerly known as ABC International Traders, Inc doing business as MGA Entertainment v Toy and Trends (Hong Kong) Limited, HCA 2152/2002 (unrep., 15 July 2014) at §§16-17, the Court has an unfettered discretion under Order 22A, which must be exercised so as to achieve justice between the parties. That discretion is to be exercised on a case-by-case basis, having regard to all the circumstances of the case before the Court. See also Ng Chi Kwan, Danny Summer & Anor v Yeung Yiu Kwan & Anor [2015] 1 HKC 348 at §30 per DHCJ Marlene Ng (as she then was).

12.  In Ng Chi Kwan, the defendants’ request that the monies paid into Court by them be retained pending taxation of the parties’ respective costs was refused. The Court held that, since the sanctioned payments were paid into Court for the purpose of disposing the plaintiff’s claim, it is logical to expect the judgment sum and interest thereon in the plaintiff’s favour to be satisfied by the release of such sums. In short, the plaintiff was prima facie entitled to the release of the relevant amount out of the sanctioned payments in their favour. This is plainly a relevant consideration in the exercise of discretion under O.22A, r.1(1) of the RDC. The Court further held that the defendants’ request for the judgment sum to be kept in court pending taxation of the respective parties’ costs was a de facto stay of execution of the judgment, and a security for costs awarded to the defendants pending taxation. It was for the defendants to demonstrate good reasons and to justify why the Court should grant such order to enable them to enjoy such security. Further, in the absence of the parties’ estimated costs, there was no sufficient basis for the court to exercise the discretion in favour of retaining the monies paid into Court (see §§31-34). Ng Chi Kwan was followed by HH Judge Phillis Loh in Sandhu Jatinder Singh v Ma Shiu Ming & Anor [2025] 2 HKC 782 at §§66-67. See also Hong Kong Civil Procedure 2026, Vol I, §22A/1/4, which cites Ng Chi Kwan with approval for the proposition that “there was insufficient reason to withhold release of defendant’s payment to the plaintiff pending taxation of costs that may have resulted in a net payment to the defendant, where no estimate of such costs have been produced.”

C. DISCUSSION

C.1 The Defendants’ Application to Vary the Costs Order Nisi

13.  Although the Sanctioned Payments were made at a time when the plaintiff was acting in person, the evidence clearly demonstrates that notices of Sanctioned Payments were duly served on the plaintiff, and that he was accordingly aware of them:

(1) Notice of the First Sanctioned Payment was sent to the plaintiff at his residence at Sun Hing Building, Temple Steet (“Temple Street Address”), under cover of a letter dated 20 August 2025, and also via WhatsApp to the plaintiff’s telephone. In addition, WL invited the plaintiff to attend their office for a without-prejudice discussion. The plaintiff accepted the invitation and attended their office on 4 November 2025. During that meeting, the plaintiff confirmed receipt of the letters sent by WL and produced copies thereof to Mr Yeung. With the assistance of an interpreter, Mr Yeung explained to the plaintiff the potential costs consequences of the First Sanctioned Payment. The plaintiff, however, refused to accept the payment and insisted on pursuing a claim of HK$3 million[3].

(2) Notice of the Second Sanctioned Payment was likewise sent to the plaintiff at the Temple Street Address, via WhatsApp, and by email provided by the plaintiff[4].

14.  In these circumstances, as the plaintiff has failed to obtain a judgment better than the Sanctioned Payments, the Court “shall” make the orders referred to in paragraphs (2), (3) and (4) of O.22, r.23 of the RDC, unless it considers it unjust to do so. There is nothing before this Court to suggest that it would be unjust to make such orders. Accordingly, I order in terms of paragraphs (2), (3) and (4) of O.22, r.23 of the RDC.

C.2 The Defendants’ Application for Payment Out and for the Judgment Sum and Interest to Remain in Court

15.  In my view, since the Sanctioned Payments were paid into Court for the purpose of disposing of the plaintiff’s claim, and since the Judgment Sum and Interest accrued until 19 September 2025 amounts to only HK$79,986.68, the defendants are prima facie entitled to an order for payment out of HK$170,013.32, being the difference between the Sanctioned Payments (HK$250,000) and the Judgment Sum and Interest (HK$79,986.68), together with any interest accrued thereon. I so order.

16.  As to whether the Judgment Sum and Interest should remain in Court until further order pending agreement by the parties or taxation of the defendants’ costs, I have considered Ng Chi Kwan and take into account that withholding payment due to the plaintiff would effectively confer upon the defendants a form of security for costs, which they must justify by showing good reasons.

17.  Notwithstanding this, I accept that the defendants raise a genuine concern regarding the plaintiff’s ability and willingness to satisfy the costs incurred by them after 19 September 2025, which they estimate to be approximately HK$114,500 (counsel’s fees) and HK$173,700 (profit costs)[5]. This sum far exceeds the Judgment Sum and Interest. They further rely on the plaintiff’s own evidence in his witness statement dated 11 April 2022, wherein he stated that he was employed as a security guard earning approximately HK$13,000 per month, and that he currently resides at the Temple Street Address, which is not owned by him[6]. Despite having been granted leave, the plaintiff has not filed any affirmation to rebut Mr Yeung’s assertions in his affirmation.

18.  In these circumstances, I am satisfied that the defendants have demonstrated ground reasons justifying an order that the Judgment Sum and Interest remain at Court, and I so order. My conclusion is fortified by Yum Sin Wah v Wong Chi Shing [2021] HKCFI 1930, in which DHCJ Laurence Li SC observed that Ni Chi Kwan (at §45) did not suggest that the other party’s inability or unwillingness to pay could never constitute good reason.

D. CONCLUSION

19.  Accordingly, I vary the Costs Order Nisi as follows:

(1) The defendants shall pay the plaintiff’s costs in this action (including all costs reserved, if any) up to and inclusive of 19 September 2025, on a party-and-party basis, to be taxed if not agreed;

(2) The plaintiff shall pay the defendants’ costs in this action after 19 September 2025, with Certificate for Counsel (including all costs reserved, if any) on an indemnity basis, to be taxed if not agreed; and

(3) No interest shall accrue on the Judgment Sum after 19 September 2025.

20.  I further order that out of the HK$250,000.00 paid into Court by the defendants pursuant to the two Notices of Sanctioned Payment dated 19 August 2025 and 11 November 2025:

(1) A sum of HK$79,986.68, comprising the Judgment Sum of HK$69,827.00 and interest up to and inclusive of 19 September 2025 (being the last date on which the plaintiff could have accepted the First Sanctioned Payment) in the sum of HK$10,159.68, shall remain in Court until further order pending agreement by the parties or taxation of the defendants’ costs and disbursements in this action; and

(2) The balance of the Sanctioned Payments in the sum of HK$170,013.32, together with any interest accrued thereon, shall be paid out forthwith to the defendants through their solicitors, Messrs Winnie Leung & Co.

21.  I make a costs order nisi that the plaintiff shall pay the defendants’ costs of this application on an indemnity basis, to be taxed if not agreed, as such costs form part of the defendants’ costs incurred subsequent to 19 September 2025.