NG SHING YAN VINCENT v. POON KIN PONG

CACV 170/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 2009

(ON APPEAL FROM HCPI NO. 83 OF 2004)

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BETWEEN

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DECISION

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Hon Kwan JA (giving the decision of the Court):

1.  On 7 October 2011, we handed down judgment in this appeal. We allowed the plaintiff’s appeal, set aside the judgment of the court below dismissing his claim and substituted this with judgment for the plaintiff with liability apportioned to the defendant at 30%. The consequent amount of the net award to the plaintiff was $215,967.30. We set aside the costs order made by the judge on 24 June 2009 and substituted this with an order nisi that the costs of the action be in favour of the plaintiff, to be taxed if not agreed, and that the costs of the appeal be to the plaintiff, to be taxed if not agreed.

2.  On 20 October 2011, the defendant applied by summons to vary the orders we made as to costs of the proceedings below and on appeal. In lieu of the orders we made, the defendant seeks, inter alia, the following orders:

(1)  subject to the costs orders previously adjudged by the court to the defendant, the defendant do pay the plaintiff’s costs and disbursements of this action up to 19 January 2009 on a party and party basis on the District Court scale, to be taxed if not agreed;

(2)  the plaintiff do pay the defendant’s costs incurred at the Court of First Instance proceedings after the date of his 3^rd payment into court made on 19 January 2009 and all costs incurred for the Court of Appeal hearing, or otherwise after a date to be adjudged by the court to be just and appropriate, or on any basis and/or at any interest rate as the court sees fit; and

(3)  the costs of the application be to the defendant.

3.  The grounds relied on by the defendant for this application may be stated as follows:

(1)  The defendant had made three payments into court before the commencement of trial on 3 February 2009: $100,000 on 7 March 2007; $50,000 on 19 June 2008; and $200,000 on 19 January 2009. The total amount paid into court of $350,000 was not accepted by the plaintiff.

(2)  The total amount of damages awarded to the plaintiff by the judgment of this court is $215,967.30. Interest on general damages and special damages for the periods and at the rates as provided in our judgment amounted to $38,265.77. Thus, damages and interest awarded to the plaintiff in the total sum of $254,233.07 were less than the amount paid into court.

(3)  Since the plaintiff’s claim as adjudged by this court is well within the District Court jurisdiction, even if the plaintiff is entitled to costs up to the date of the last payment into court on 19 January 2009, the costs awarded should be on the District Court scale only.

4.  The total amount of damages allowed by the judge, without contributory negligence, was $719,891. Unless it could be shown there was a reasonable prospect of obtaining an award exceeding the limit of the District Court jurisdiction of $1 million, the costs of proceedings brought in the High Court would usually be on the District Court scale (Lai Ki v. B+B Construction Co. Ltd. [2003] 3 HKC 322).

5.  The judge found that the plaintiff had exaggerated his remaining physical disabilities and psychiatric problems. He had abandoned his claim for future loss of earnings of $1.5 million and sought instead $350,000 to $400,000 for loss of earning capacity. The amount sought for future medical expenses of $294,000 was advanced without sufficient regard as to why he should not continue his follow-up treatment in the public sector. On the basis of full liability, we do not think there was reasonable prospect of his recovering an award in excess of the District Court jurisdiction. There is no reason to depart from the usual rule in the present case. So the costs to which the plaintiff is entitled, up to 19 January 2009 being the date of the last payment into court, should be on the District Court scale.

6.  The plaintiff’s counsel conceded that as the damages and interest awarded to the plaintiff was less than the payment into court, the defendant should be entitled to his costs in the action as from 19 January 2009. The costs awarded to the defendant would be on the High Court scale.

7.  The defendant also seeks costs of this appeal even though it has failed on appeal. Mr Szeto submitted that the defendant is the successful party in the appeal when properly analysed, in view of the fact that: (a) the plaintiff only succeeded on one of the grounds to overturn the judgment on liability, (b) the level of contributory negligence was raised from 50% as assessed by the judge to 70%, (c) the appeal on quantum was dismissed, and (d) the net judgment sum inclusive of interest was less than the payment into court.

8.  According to counsel’s submission, in August 2010, about one year after the Notice of Appeal was filed, the plaintiff consented to the defendant to withdraw the amount paid into court. Mr Szeto contended it should be inferred from the plaintiff’s consent that the defendant was not required to increase the amount paid into court and that he had no choice but to contest the appeal.

9.  We reject the above contentions. The plaintiff had to bring this appeal to set aside the judgment dismissing his claim and has succeeded in doing so. He should be regarded as the successful party overall and costs should follow the event. If the defendant had wished to protect his position on costs in the event the plaintiff should succeed on appeal, he should have done so by maintaining, if not increasing, his payment into court instead of obtaining the plaintiff’s consent to withdraw the payment. We decline to vary the order we made on the costs of the appeal.

10.  The orders we make as to costs on appeal and below are as follows:

(1)  subject to the costs orders previously adjudged by the court to the defendant, the defendant do pay the plaintiff’s costs and disbursements of this action up to 19 January 2009 on a party and party basis on the District Court scale, to be taxed if not agreed;

(2)  the plaintiff do pay the defendant’s costs incurred at the Court of First Instance proceedings after the date of his 3rd payment into court made on 19 January 2009, on a party and party basis on the High Court scale, to be taxed if not agreed; and

(3)  the defendant do pay the plaintiff’s costs of this appeal, to be taxed if not agreed.

11.  As regards the costs of the defendant’s application to vary the costs order, as the defendant has succeeded only in part, we make no order as to the costs of this application.