CHAN KENG MAN v. WING & KWONG COMPANY LTD AND ANOTHER

HCPI 676/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 676 OF 2008

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BETWEEN

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D E C I S I O N

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1.  The normal rule is that the costs of and occasioned by any application for amending any document should be borne by the party making the application, unless the court otherwise orders. It is customary for parties who apply to amend pleadings to pay the costs of and occasioned by the amendment, even if the application is consented to by the other party.

2.  However, in personal injuries cases, a practice has arisen, dictated by the realities of the economic marketplace, whereby the plaintiff will inform the defendant by letter of his intention to make a higher claim resulting from a change in price that has occurred since the date of the revised statement of damages.  And often the defendant will make no objection to that.  These matters tend to be matters within the knowledge of the defendant or matters of public knowledge. 

3.  Of course, the plaintiff will also, as a matter of good practice, write to the other side to say so much further expenses have been incurred since the date of the revised statement of damages which the plaintiff intends to claim as special damages and, of course, the defendant would understand that those expenses are continuing, and, in the normal course, nothing controversial arises from this practice.

4.  It is, of course, always a question of degree, but sometimes the changes are substantial such that it is probably more prudent to make a formal amendment to the revised statement of damages, and this is what has occurred in this case.  Mr Leung for the plaintiff comes to me for leave to amend his revised statement of damages, firstly, to include a larger claim for alternative accommodation based on the fact that the cost of rentals have gone up since the date when the revised statement of damages was filed and served at the end of December 2009.

5.  At the same time, he makes a formal amendment to claim increased future loss of earnings on the ground that it was recently announced by the Steel Binders Federation that the daily wages of steel binders are being increased from August 2011, and will be further increased from August 2012, and August 2013.  The third aspect of the amendment relates to further expenses incurred since the date of the revised statement of damages.

6.  Quite sensibly, the defendant makes no objection to this application, and I have already indicated that I am prepared to make an order in terms of the relief sought in the plaintiff’s summons.  Also, I have given leave to the defendant to file a witness statement in reply, if so minded, and to serve a revised answer.

7.  It is always a question of degree whether these matters could be better dealt with just by an informal exchange of letters or whether, as in this case, the more formal step is taken.  Obviously, if the formal application for revising the statement of damages includes amendments to introduce new claims or new material, then the normal rule will prevail.  If the court is minded to allow such amendments at the eve of trial, which may itself be difficult to achieve on the part of the party making such application, then the normal rule will apply, namely, that the costs of and occasioned by the amendment should be paid for by the party seeking it, including, if appropriate, costs thrown away.

8.  But I see the present case as falling within the usual practice of updating changing economic data and updating the actual value of the claims consequent upon changes in economic data, and I come to the view that, in this case, the proper costs order to make is costs in the cause, and that is what I order.