WONG KWONG SAN v. LEE CHOI WAN

HCPI 700/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 700 OF 2010

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VARIATION OF INTEREST
& COSTS ORDER NISI

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1.  On 10 August 2017, I handed down an assessment of damages herein. I awarded the sum of $150,627 to the plaintiff.

PSLA	100,000
Pre-trial loss of earnings	40,000
Special damages	10,627
	150,627

2.  I also awarded to the plaintiff interest on general damages (PSLA) at 2% per annum from the date of writ to the date of handing down of the assessment.  Regarding pre-trial loss of earnings and special damages, there was half judgment rate from the date of accident to the date of handing down of the assessment.

3.  Further, I made a costs order nisi that the plaintiff was entitled to costs of the assessment, including costs reserved on party-and-party basis, at District Court scale, to be taxed if not agreed.  There was no order as to costs regarding the hearing before me on 24 July 2017 and the plaintiff’s own costs would be taxed in accordance with Legal Aid Regulations

4.  The plaintiff then took out the present summons seeking to vary the said interest and costs order nisi by providing information which was not available before me at the assessment.  They include:

(1) On 21 April 2011, the defendant made a sanctioned payment for the sum of $300,000.  It far exceeds the sum of $150,627 (together with interest) awarded by this court to the plaintiff.

(2) Under order 22 rule 15 of the Rules of the High Court (“RHC”), the plaintiff should have accepted the sanctioned offer without leave on or before 19 May 2011.

(3) On 20 July 2011, the defendant further increased the sanctioned payment by $100,000.

(4) By consent, interim payment in the total sums of $300,000[1] were paid to the plaintiff.  He has been “overpaid”.

(5) As the matter could not be settled by the plaintiff’s failure to accept the sanctioned payment, the defendant had incurred quite some disbursements, including fees for counsel, medical experts, and surveillance reports of about $300,000.

5.  Notwithstanding service of the application upon the plaintiff, he neither made any representation nor attended the hearing before me.

6.  Nonetheless, although legal aid had been discharged from 27 January 2015, Director of Legal Aid was still an interested party to the variation sought by the plaintiff.  She corresponded with the solicitors acting for the defendant and came up with some consensus.  Ms Choi of Legal Aid Counsel also appeared at the hearing to render assistance to this court.

7.  Having heard from Ms Liu from Messrs Chong & Partners LLP, solicitors acting for the defendant and Ms Choi, I made the following order.

(1) Interest on PSLA be varied and awarded to the plaintiff at 2% per annum from the date of writ until 19 May 2011, and there be no interest accrued on PSLA thereafter.

(2) Interest on pre-trial loss of earnings and special damages be varied and awarded to the plaintiff at half judgement rate from the date of accident until 19 May 2011, and there be no interest accrued on pre-trial loss of earnings and special damages thereafter.

(3) There be no judgement interest accrued on the judgement sum awarded to the plaintiff after 19 May 2011.

(4) The plaintiff do repay to the defendant through the defendant’s solicitors the sum of $143,583.73 being overpaid interim payments made to pursuant to the consent orders dated 26 April 2011 and 7 February 2012.

(5) All balance of sanctioned payment kept by the court (together with interest thereon if any) be paid out to the defendant through the defendant’s solicitors.

(6) Costs of this action up to 19 May 2011 be paid by the defendant to the plaintiff on District Court scale and on party and party basis, to be taxed if not agreed.

(7) Costs of this action from 20 May 2011, including the costs of the assessment hearing on 24 July 2017 with certificate for counsel be paid by the plaintiff to the defendant on High Court scale and on indemnity basis, to be taxed if not agreed.

(8) The plaintiff do pay enhanced interest on cost at 9% per annum to the defendant on the following sums (being counsel fees and disbursements incurred) from the date of payment up to the date of judgment:

(a) on the sum of $32,500 from 24 May 2011;

(b) on the sum of $30,800 from 15 March 2012;

(c) on the sum of $13,962 from 28 May 2012;

(d) on the sum of $27,000 from 8 June 2012;

(e) on the sum of $5,000 from 29 October 2012;

(f) on the sum of $60,000 from 10 January 2013;

(g) on the sum of $60,000 from 16 April 2013;

(h) on the sum of $35,000 from 5 July 2013;

(i) on the sum of $23,625 from 10 July 2013;

(9) Costs of this application be paid by the plaintiff to the defendant on High Court scale and on indemnity basis, to be taxed if not agreed.

(10) The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

8.  Here are the reasons.

9.  Order 22 rule 23 RHC contains the relevant provisions governing the present situation.  To state it briefly for our purpose:

(1) If the plaintiff fails to do better than the sanctioned payment, the court may:

(a) disallow all or part of interest, and/or

(b) order him to bear costs (on indemnity basis) of the defendant (with penalty interest at a rate not exceeding 10% above the judgment rate),

after the date he could have accepted the sanctioned offer without leave.

(2) The court shall make the above orders unless he considers it unjust to do so. 

(3) In considering whether it is unjust to make the orders, the court shall take into account all the circumstances of the case including:

(a) terms of the sanction payment,

(b) stage in the proceedings at which any sanctioned payment was made,

(c) information available to the parties at the time when the sanctioned payment was made, and

(d) conduct of parties with regard to the giving and refusing to give information for the purposes of enabling the payment to be made or evaluated.

Paragraphs (1) to (3) of the order

10.  Applying the above principles into the present case, 19 May 2011 is an important date.  It is the one which the plaintiff should have accepted the sanctioned payment of $300,000.  Hence, no interest on PSLA, pre-trial loss of earnings, special damages and the whole of the judgment should be awarded to him after that date.

Paragraphs (4) and (5) of the order

11.  From my assessment, the plaintiff was overpaid by the interim payments having agreed by the parties.  I agree to adopt the calculations as stated in the affirmation of Ms Liu filed herein on 24 August 2017.

“ 3. …

4. The Plaintiff fails to obtain a judgment better than the Relevant Sanctioned Payment. The calculation is set out as follows:

The relevant dates

- Date of Accident was 2008.11.29

- Date of Writ was 2010.12.31

- The date on which the Relevant Sanctioned Payment could have been accepted without requiring leave of the Court was 2011.05.19

Interest on PSLA up to 2011.05.19

- Relevant period (2010.12.31 – 2011.05.19) = 140 days

- Interest on PSLA = $100,000 x 140/365 x 2% = $767.12

Interest on pre-trial loss of earnings and special damages up to 2011.05.19

- Total pre-trial loss of earnings and special damages awarded was $50,627

Relevant Period	Judgment Rate	Calculation of interest
2008.11.29 to 2008.12.31 (33 days)	8.250	$50,627 x 33/365 x 4.125% = $188.81
2009.01.01 to 2009.03.31 (90 days)	8.192	$50,627 x 90/365 x 4.096% = $511.32
2009.04.01 to 2011.05.09 (779 days)	8.000	$50,627 x 779/365 x 4.000% = $4,322.02
Interest on pre-trial losses:		$5,022.15

5. As shown in the calculation above, the judgment sum together with all interest accrued up to 19 May 2011 is $156,416.27, far less than the Relevant Sanctioned Payment.

6. …”

Paragraphs (6) to (8) of the order 

12.  Variation of costs order nisi and payment of enhanced interest by the plaintiff to the defendant are difficult areas and often attract heated arguments.  Nonetheless, I had the benefit of agreement reached by the defendant’s solicitors and Director of Legal Aid.  I found them appropriate in the circumstances of the present case and endorsed the same.

Paragraphs (9) to (10) of the order

13.  There was no reason why costs should not follow the event.  Director of Legal Aid had agreed that costs of the action, including the assessment herein be taxed on High Court scale and on indemnity basis, I therefore also made the costs order on the same basis regarding the present application.  Of course, there could not be any argument that, in so far as applicable, the own costs of the plaintiff would be taxed in accordance with Legal Aid Regulations.