MAK YIN HA v. WONG CHO HIM WILLIAM

DCCJ 1832/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1832 OF 2005

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Ruling

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1.  This is a hearing of two summonses taken out by the Defendant.  Before I deal with the applications before the court, it is useful to set out the background of the case.

2. By this action, the Plaintiff, the registered owner of a motor vehicle claims damages against the Defendant, who borrowed the vehicle from the Plaintiff and met with an accident while driving the said vehicle. In default of the filing of Notice of Intention to Defend by the Defendant, the Plaintiff obtained Interlocutory Judgment for damages to be assessed on 4 June 2005.  The Defendant’s application to set aside the default judgment was dismissed on 19 January 2006.  Assessment of damages was fixed to be heard on 7 August 2006.

3. On 31 July 2006, the Defendant took out a summons for adjournment of the hearing of the assessment of damages (the first summons).  On 1 August 2006, the Defendant took out another 2 summonses (the second summons and the third summons).  The second summons was an application to strike out the Particulars of Loss and Damages in the Statement of Claim.  The third summons was an application for an order requiring the Plaintiff to make and file an affidavit relating to specific discovery of 2 categories of documents regarding wreck value of the said vehicle and an item of claim not pleaded in the Statement of Claim. 

4. The 3 summonses were heard on 3 August 2006 by another judge, who made orders that, for the first summons, the hearing of assessment of damages be adjourned; and the other 2 summonses be adjourned for argument, with costs reserved. The second and third summonses are now the subject matter of this hearing.

5. In this hearing, I was told that the Particulars of Loss and Damages in the Statement of Claim had been amended by consent on 1 September 2006.  As a result of the amendment, it was not necessary for the Defendant to pursue the second summons.  However the costs issue was still outstanding.  The Defendant still pursued with the application in the third summons.  The Defendant asked for the costs of the 3 summonses, the costs reserved on 3 August 2006 and the costs of this hearing.

6. The three summonses were supported by the second affirmation of the Defendant’s solicitor, Mr Ching Ming Yu, who also represented the Defendant in this hearing.

7. In the said affirmation, Mr Ching made 3 complaints: 1. the Plaintiff’s failure to exchange witness statement as directed by court’s order dated 25 May 2006; 2. the Particulars of Loss and Damages were wrongly pleaded and the Plaintiff’s witness statement dated 29 July 2006 disclosed a new measure of damages, including a new item of claim; 3. late service of the Hearsay Notice on 31 July 2006 containing 16 documents leaving the Defendant no time to respond to the same.

8. There have been discussions between parties as to possibility of vacating this hearing.  The attempt failed as a result of disagreement on costs.  From the letters between the parties, their positions are clear.  The Defendant asked for costs of the three summonses including costs of the application and the costs reserved on 3 August 2006.  The Plaintiff only agreed to pay the costs of the second and third summonses with 1/3 of the costs for the second affirmation of Ching Ming Yu.  In the hearing, Mr Pang, solicitor for the Plaintiff withdrew from his position and asked for costs in respect of the third summons. Mr Pang complained that no prior notice was given to the Plaintiff before the third summons was taken out.

9. Notwithstanding the general proposition that a court did not sit to determine a substantive issue which had become academic because there was no dispute to be resolved between the parties, where there was an outstanding issue as to costs the court was entitled to determine the substantive issue so as to decide the liability as to costs.  I should therefore decide the merits in each of the three summonses.

The first and the second summonses

10. Mr Ching showed to the court a “without prejudice” letter dated 2 November 2005 to the Plaintiff, in which the Defendant’s solicitor already raised the issue that the Plaintiff’s pleadings in the Statement of Claim were wrong in law. It is apparent that the Plaintiff did use a wrong basis to calculate the loss of damages to the car. The issue was not dealt with by the Plaintiff’s solicitor until the Statement of Claim was amended on 1 September 2006.

11. The trial for the assessment of damages was listed for hearing on 7 August 2006. Directions from the court had been given on 25 May 2006 that both parties were to exchange witness statements and expert report within 42 days.  Both parties did not comply with this direction.  The Plaintiff’s witness statement was only made on 29 July 2006 and filed on 31 July 2006.  The Plaintiff’s witness statement referred to a different measure of damages and a new item of claim for “repair costs for the lighting column” which were not supported by the Plaintiff’s pleadings. This issue no doubt would be raised in the trial and would most likely cause amendment of Particulars of Claim and adjournment of the trial. To avoid unnecessary delay of the case, the Defendant was fully justified to take out these two summonses for the issue to be resolved before trial.  The Defendant was therefore entitled to the costs of and occasioned by these two summonses in any event. 

The third summons

12. Mr Pang, solicitor for the Plaintiff, argued that there had been no prior notice before the summons was issued.  Given the trial date of the assessment of damages, I cannot say that the Defendant was at fault by not giving prior notice.  In any event, if the Plaintiff did not want to resist the application, affirmation could have been made to satisfy the request of the Defendant.  That has not been done so far.  The documents requested for are apparently necessary and relevant to the claim and should have been included in the list of documents.  I will therefore give order in terms of the application by the Defendant with costs of and occasioned by the application to be paid by the Plaintiff in any event.

13. I agree with Mr Ching that the court should not interfere with the function of the taxing master by apportioning the costs in respect of each summons.  Mr Ching succeeded in his argument.  The normal rule for the costs to follow the event will apply.  I order the costs of the proceedings on 3 August and 8 September 2006 to be paid by the Plaintiff, in any event. 

14. Mr Ching revealed 3 “without prejudice” letters in support of his request for costs on indemnity basis alleging unreasonable or improper conduct on the part of the Plaintiff.  These 3 letters related to the negotiation of settlement between the parties.  In my judgment the letters are irrelevant to the issue in this hearing and should be disregarded.  Although the Plaintiff lost in the argument, I do not see any improper conduct on their part to the extent that indemnity costs should be justified.

15. I therefore order all the costs of and occasioned by the 3 summonses and the costs of hearings on 3 August and 8 September 2006 be paid by the Plaintiff to the Defendantin any event, on party and party basis, to be taxed if not agreed.