B+B CONSTRUCTION CO. LTD./ WAI NAI YIP formerly t/a KA YIP MACHINE & ENGINEERING CO. v. LAI KI

HCA3402/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3402 OF 2003

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R U L I N G  O N  C O S T S

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1.  I have already heard provisional argument on the question of costs in order that I might release Mr Sakhrani from having to appear at the delivery of the judgment today but this morning Miss Kwan has, in effect, repeated Mr Sakhrani’s submission as to costs and she has also drawn attention to a case, Brookes v Harris [1995] 1 WLR 918, a decision of Ferris J.  The effect of that case is merely to underline that the court certainly has jurisdiction in the right sort of case to order a set-off in respect of costs in the way that Mr Sakhrani had suggested to me yesterday.

2.  In the event of his succeeding, Mr Sakhrani has submitted that I should give IK their costs but also permit them to set off these costs against the amounts that are owing to Mr Lai, who is, of course, legally aided.  Alternatively, she submits, that I should award costs against Mr Lai’s solicitors personally.  Neither of these orders, in my judgment, are called for or appropriate.  This has been a genuine dispute in interpretation of an order in which there has had to be a losing party.  Costs will follow the event so that IK will have their costs against the defendant, Mr Lai and Mr Lai’s costs will be taxed in accordance with the Legal Aid Regulations.  The successful party today will have their costs, of course, here and below.  

3.  Inevitably, I am afraid, this will mean that IK will almost certainly not be able to recover what they have spent in order to succeed but I think this really is one of these cases where one takes these sort of risks against a legally aided opponent.  What I really regret is that all of this lengthy litigation has meant that Mr Lai has yet to see his damages in the personal injury action and I hope that the resolution of this appeal will now enable him to receive his entitlement as soon as possible.