WONG TIN WAH v. IU KWAN KIT t/a ELEGANT CONSTRUCTION WORKS CO AND OTHERS

DCEC 1083/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1083 OF 2014

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D E C I S I O N

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1. In these proceedings the legally-aided applicant is seeking employees’ compensation against the three respondents. In the very early stages of the proceedings, judgment on liability was entered by consent on 17 June 2014.

2. After the consent judgment, the parties had filed two joint written applications, which led to the court’s making of two orders on paper.  The first of these orders was dated 19 August 2014. In it, the court ordered the respondents to file various documents including a list of documents and witness statements. The second order was dated 18 November 2014. In it, the court directed the parties to exchange witness statements, and to report to the court within 35 days of the order as to their stance regarding medical expert evidence.

3. Instead of reporting to the court within the stipulated time as required by the 18 November 2014 order, the applicant issued this summons on 4 March 2015 applying for among other things the entry of interlocutory judgment and also for expert directions in three fields, namely orthopaedic, urological and neurological. Since there was no affirmation in support of this summons, and in order to understand the background of this application, I had when preparing for the hearing of this summons tried to look for the completed Appendixes D which should have already been filed with the earlier joint written applications.  Despite two earlier Joint Written Applications having been made, however, none of the parties had in fact filed any Appendix D together with such applications as is mandated by Practice Direction 18.2.

4. At the hearing today, when the court asked Mr Leung for the applicant and Ms Wong for the respondents the reason why no Appendix D had been filed in these proceedings, the solicitors explained that it was due to their oversight. Whilst I do not consider that the parties had deliberately flouted the requirement of Practice Direction 18.2 that requires all legally represented parties to give information in the format prescribed in Appendix D of the said Practice Direction before a directions hearing, the parties should be reminded of the importance of compliance with Practice Direction 18.2, which governs the practice of employees’ compensation proceedings.

5. In the absence of any Appendix D setting out the requisite information or any affirmation in support of this summons, I do not think that any meaningful case management directions can be given.  Plainly the applicant’s solicitor seems to have failed in taking care when issuing the summons as evidenced by the duplicative seeking of an order in paragraph 1 of this summons for the entry of an interlocutory judgment when it had already been entered by consent on 17 June 2014.  Given the absence of a supporting affirmation, and further the lack of information that could have been found in Appendix D had it been filed previously, I believe that this summons should be dismissed so that the parties will later observe the practice of Practice Direction 18.2 by submitting a Joint Written Application with a completed Appendix D in accordance with Practice Direction 18.2.

6. For the reasons above, I dismiss this summons.

Costs

7. According to Practice Direction 18.2, if an application is adjourned as a result of a party’s non-compliance with Practice Direction 18.2 in having failed to provide the court with all the necessary information, which I have found to be the case here, the court may make a wasted costs order against the offending party. 

8. Insofar as the requirement of the filing of Appendix D is concerned, I think both parties have been at fault. Therefore, I consider it is just that there should be no order as to costs in respect of this summons.

9. As whether a wasted costs order is justified, Mr Leung for the applicant, having been given an opportunity to make submissions, has chosen not to make any submission. In the circumstances, I think it is just to make a wasted costs order by disallowing the costs between Mr Leung’s firm and his client. 

10. As for the respondents’ solicitors, since they do not have the carriage of this summons, I am disinclined to make a wasted costs order against them.

11. I accordingly order as follows:-

(1) The summons is dismissed with no order to costs;

(2) There shall be a wasted costs order that the costs as between the applicant and his  solicitors are disallowed; and

(3) The parties are to file a Joint Written Application together with a properly signed Appendix D in accordance with Practice Direction 18.2 within 14 days from today.