RAVI GIDUMAL (acting as administrator of the estate of ZUBIN MAHTANI GIDUMAL) AND OTHERS v. DR. RICHARD WING CHIU AND ANOTHER

HCPI 411/2012

[2026] HKCFI 2660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 411 OF 2012

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BETWEEN

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DECISION ON COSTS

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1.  These were the claims for medical negligence concerning the passing of a 3-year-old infant (“the Infant”) under the treatment and care of the 1^st defendant (“the Doctor”) and the 2^nd defendant (“the Hospital”) (collectively “the defendants”) in 2009.

2.  The present action was commenced 14 years ago. The 1^st plaintiff is the father (“the Father”) suing as the administrator of the estate of the Infant. The Father himself as the 2^nd plaintiff and the mother (“the Mother”) as the 3^rd plaintiff also claimed as the secondary victims of the alleged medical negligence (collectively “the Parents”).

3.  The Infant’s claim was settled in 2016 except for the costs. The claims of the Parents continued until 2025, when this court gave them leave to discontinue their claims against the defendants. The consequential costs issue is disputed. Hence this court’s direction for the same to be disposed of on paper. Now this decision.

BACKGROUND

4.  On 30 May 2009, the Doctor was consulted on the telephone about the Infant who was suffering from high fever and vomiting. The Infant was later admitted to the Hospital, but his condition deteriorated so much that he had to be transferred urgently to the Queen Mary Hospital on the following day. The Infant passed away from pneumococcal meningitis shortly afterwards. Hence the claim on behalf of his estate in the present action. The Parents claimed as the secondary victims of the medical negligence for alleged psychiatric injuries resulting from experiencing and witnessing the situation and eventually passing of the Infant.

5.  On 15 June 2016, leave was granted to the Father to accept the sanctioned payment made by the Doctor in full and final settlement of the claim by the estate of the Infant. The court then reserved the issue of costs between the estate of the Infant and the defendants to be determined.

6.  The claims by the Parents continued. Both liability and quantum were disputed. The Parents claimed damages for psychiatric injuries and consequential loss of earnings and earning capacity. It cannot be said that the progress was smooth in the discovery of document as well as the psychiatric and forensic accounting expert evidence. The expert evidence issues had to be resolved by the court in 2017 and 2019 respectively: see the decisions of DHCJ Marlene Ng, as she then was, on 20 September 2017 and later Hon Marlene Ng J in 2019 [2019] HKCFI 228.

7.  When this case came to be case managed by this court (as DHCJ then), it was already November 2022. By then, substantive parts of the order made by the court consequential upon the above decisions back in 2017 and 2019 were yet to be complied with. Not even the draft order incorporating the terms of the decision of the court in 2019 had been lodged for approval and sealing. Apart from giving a series of further case management directions, this court, in view of the parties’ disagreement, put on record that the parties had liberty to raise argument in respect of responsibility for the delay for the purpose of costs at the appropriate juncture.

8.  The disagreement between the parties ensued. So did their correspondence with the court recording that. This led to further and detailed directions of this court in May 2023. Amongst other things, this court stated that the continuous mutual blame of the parties for the further delay aside, the reality was that the time taken for the compliance with the order of the court made back in January 2019 had been more substantial than reasonably acceptable in terms of both proper case management and the bilateral interest of the parties in early closure of the litigation. The further directions ended with the warning that the court might dictate for the parties if they continued to drag on with the outstanding compliance.

9.  In July 2023, the parties reported progress on the forensic accountancy experts report and sought further time extension for its preparation. This was granted in late July 2023. However, nothing has since been heard from the parties. This court therefore took the initiative to write to the parties in January 2025 expressing concern and directing for the submission of further case management proposal within 21 days. At the same time, this court raised what was expected to have been known by then by the parties, being the recent development in the UK case law relevant to the cause of action of the Parents in the present case. That is Paul and Another v Royal Wolverhampton NHS Trust [2024] UKSC 1, which the parties were expected to take into account in assessing the issue of liability.

10.  On 21 March 2025, those acting for the Parents informed this court of their intention to withdraw their claims in the light of Paul (above) and that to agree with the defendants on costs.

11.  On 7 April 2025, the defendants took out their summons for an order that the Parents do file a notice of discontinuance in 7 days; and in the event they failed to do so, that their claims be struck out with costs to the defendants, to be taxed if not agreed (“the Ds’ Summons”). As stated in the margin of the summons, the application was somehow taken out pursuant to O3, r5 of the Rules of the High Court, Cap 4A and the inherent jurisdiction of the court.

12.  At the hearing on 23 April 2025, solicitor appearing for the Parents complained about the incorrect citation of the jurisdictional basis for the Ds’ Summons, and that it should have been her clients who needed to seek leave to discontinue. In response, solicitor appearing for the defendants tried to tender an amended summons. Focusing on the substance of the matter as one within a narrow scope, this court sought confirmation of the stance of the Parents from their solicitor in court. Upon such confirmation, this court gave leave to the Parents to discontinue their action against the defendants notwithstanding the lack of a formal summons.

13.  There is then legitimately the issue of costs consequential upon the discontinuance of the action between the Parents and the defendants. Hence this court’s directions at the same time (“the 23/4/2025 Order”):

(1) The Parents do file and serve affidavit pertaining to the costs of the action, including those of and occasioned by Ds’ Summons within 28 days from the date hereof;

(2) The defendants do file and serve an affidavit pertaining to the costs of the action, including those of and occasioned by Ds’ Summons within 28 days thereafter;

(3) Leave to the Parents to file and serve an affidavit in reply, if any, within 14 days thereafter;

(4) No further affidavit without leave of the Court;

(5) Upon the close of affidavits as aforesaid, the Parents do lodge with the Court within 14 days an agreed bundle of documents for the purpose of argument on costs;

(6) Within 7 days of the lodging of agreed bundle, the Parents do lodge and serve written submissions on costs;

(7) Within 7 days thereafter, the defendants lodge and serve their respective written submissions on costs;

(8) Within 7 days thereafter, the Parents do lodge and serve written submission in reply, if any;

(9) The written submissions shall set out from the outset the terms of the costs order sought by the parties respectively;

(10) Unless otherwise directed, the costs issue will be determined on paper only without oral hearing; and

(11) There be liberty to apply.

14.  On 21 May 2025, the Father as the administrator of the estate of the Infant also took out a summons in respect of the costs between the Infant and the defendants, which was reserved by the order of the court dated 15 June 2016 mentioned above (“the Infant’s Summons”). The Father sought the following costs order between the estate of the Infant and the defendants:

(1) The costs be paid by the Doctor to the estate of the Infant to be assessed at the High Court scale if not agreed;

(2) The Doctor do pay the Hospital’s costs of this action between the estate of the Infant and the Hospital, such costs to be assessed at the High Court scale if not agreed;

(3) Costs of the Infant’s Summons be paid by the Doctor to the estate of the Infant and the Hospital, to be assessed at the High Court scale if not agreed.

15.  On the same day, those acting for the Parents filed the affirmation for the purpose of the issue of costs under the Ds’ Summons and the Infant’s Summons.

16.  On 16 June 2025, this court gave direction that unless contrary representation was heard, the Infant’s Summons shall be disposed of at the same time and in the same manner as Ds’ Summons, and that the directions previously given for the purpose of the latter should apply for the purpose of the former. In other words, the affidavit evidence and submissions lodged and served should be composite in serving the purpose of both summonses. By consent, an order in such terms was subsequently made.

17.  On 20 June 2025, the defendants jointly wrote to this court, stating their stance of no objection to an order in terms of the Infant’s Summons, but raising the issue of whether those acting for the plaintiffs have been doing so on a pro bono basis. The defendants stated that those acting for the plaintiffs have all along refused to respond to them on this issue despite previous written requests.

18.  In this court’s further direction given on 23 June 2025, this court explained that it would be for the defendants to raise this issue by way of affidavit with reference to the previous correspondence, and for the plaintiffs to respond to such issue in reply on oath, if so advised. The issue is one of fact which would have to be made clear, albeit as one primarily relevant to taxation.

19.  On 16 July 2025, an affirmation on behalf of the Doctor pertaining to the costs issues was filed and served. So was an affirmation on behalf of the Hospital, exhibiting the draft affirmation which was subsequently notarised to be admissible.

20.  The plaintiffs’ compliance with the rest of the 23/4/2025 Order has been far from satisfactory. Amongst others, the Parents have sought extension of time twice for filing their affidavit in reply and once for lodging the agreed document bundle. The time for the Parents to lodge submission have been extended for 4 times, of which the first 3 were granted by consent while the last was resisted. The affirmation in reply was not filed until 20 August 2025. The document bundle was not lodged until 17 September 2025. Yet their written submission was not forthcoming despite repeated extensions of time mentioned above.

21.  On 30 October 2025, the Parents took out their summons for time to lodge and serve submission. At the hearing on 11 November 2025, this court allowed the extension of time until 19 November 2025, but not without putting on record that no further time extension would be granted. This court also set out the roadmap for all the parties in the event the Parents still failed to lodge their submission despite such time extension last granted.

22.  Indeed, the Parents failed to lodge their written submission despite the time extension last granted as mentioned above. That brought about what I viewed as odd argument raised on behalf of the Parents purportedly with reference to the roadmap explained by this court at the last hearing mentioned above. That stood to be corrected, and on 2 December 2025, this court gave, amongst others, the following directions in line with the roadmap actually indicated:

(1) Sequence and timetable of lodging and serving written submissions by the parties pursuant to the 23/4/2025 Order (and the further order made on 23 June 2025) was reversed;

(2) The defendants should lodge and serve their written submissions with list of authorities on or before 23 December 2025;

(3) The Parents should lodge and serve their written submission with list of authorities on or before 13 January 2026;

(4) The defendants should lodge and serve their written submissions in reply (if any) on or before 27 January 2026;

(5) Costs occasioned to the defendants by the correspondence between 25 and 28 November 2025 be to the defendants in any event, to be taxed if not agreed.

23.  It was only after all these that we arrived at this point.

COSTS OF THE ACTION BETWEEN THE PARENTS AND THE DEFENDANTS

Generally

24.  A plaintiff who seeks to discontinue a hostile litigation will normally be given leave to do so on terms that he or she shall pay the defendant the latter’s costs of the action which is now dropped. This is generally expected in the court’s exercise of the discretion as to costs unless the court is satisfied that it has proper basis for departing from it.

25.  To persuade the court to depart from the above norm, the plaintiff has to show that the action is discontinued other than acknowledgement of defeat or likely defeat. Put differently, he may be discontinuing but would have succeeded had the case proceeded to adjudication. It is the burden of the plaintiff to show he would have succeeded on the basis of the factual analysis permitted as of the time when the issue of costs comes to be determined. If he manages to discharge such burden, he may be permitted to discontinue the action without costs consequence. Proof of merit of the claim in terms of a prima facie case will not suffice for such purpose.

26.  The above have been well discussed in Coqueen Co Ltd v Chui Wai Kwan & Ors HCMP 438/2010 (8 December 2015) at §§37-40; Huangfu Chuangxin v Ni Yongkang & Ors [2022] HKCFI 1721 at §13; 深圳正高金屬製品有限公司v Iu Ho Construction Engineering Co Ltd [2022] HKCFI 2685 at §18.

27.  It is therefore the burden of the Parents to show that the discontinuance of their claims as secondary victims of the medical negligence episode was not an acknowledgement of defeat or likely defeat; and their action would have succeeded were they minded to continue the pursuit.

Bearing of the Paul judgment?

28.  Counsel for the Parents took the above stance on their behalf, and attributed to Paul (above) as the unexpected change in the state of the relevant law which brought about the re-assessment and decision to discontinue their claims.

29.  Paul was handed down on 11 January 2024. Unbeknownst to this court then, those acting for the Doctor indeed alerted those acting for the Parents to that judgment a week later. In March 2024, those acting for the Parents wrote to those acting for the Doctor and the Hospital respectively indicating their view that the judgment in Paul made it futile for them to proceed with the action. Correspondence between the two sides with a view to wrapping up the litigation then ensued.

30.  After this court’s direction in January 2025, as mentioned, those acting for the Doctor followed up by seeking confirmation of the Parents’ stance. Notwithstanding the previous indication mentioned above, those acting for the Parents suggested that they required time to consider the judgment in Paul and its implications, and hence counsel advice. That said, those acting for the Parents responded in March 2025 to this court’s direction that they did intend to withdraw their claims in the light of the judgment in Paul. All somehow still sounded fluid then.

31.  Now the Parents argued that their claims for nervous shock and psychiatric injury as secondary victims of the medical negligence concerning the Infant had the support of a long-standing line of authorities. They had acted reasonably in commencing and maintaining the claims on the basis of sound legal arguments as well as compelling witness and experts. They argued that the defendants never took the stance that the Parents’ claims were liable to be struck out either. However, the relevant law changed only upon the Paul judgment, which was described by those acting for the Parents as an “unexpected boon for the Doctor and the Hospital”. But for that, there was every chance their claims would have succeeded. They say they should therefore be allowed to discontinue with no order as to costs.

32.  For the present purpose, it is not about whether the claim was lodged and the action commenced reasonably in terms of the existence of a solid or even good cause of action afforded by the law and the evidence. However meritorious the Parents’ claims might have been according to their legal advice, the decision of the Parents not to proceed with their claims was manifestation of their readiness to take no more of the litigation risk, however small it was as they or their legal advisers may view. This would not suffice in taking them out of the norm that discontinuance of the claim normally entails liability to pay the defendant the latter’s costs of the action which is discontinued.

33.  For the relevant law relating to secondary victim in tort, one may start with McLoughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. An actionable cause of claim by the secondary victim must be founded on the following pre-requisites:

(1) There must exist a relationship of love and affection between the primary and secondary victims;

(2) The secondary victim must come across the immediate aftermath of the event which harm the primary victim;

(3) The secondary victim must have direct perception of such harm caused by the event to the primary victim; and

(4) The secondary victim must be of reasonable fortitude.

34.  Formulation of the pre-requisites was premised on first, the secondary victim coming across the event of negligent nature to the primary victim which caused the latter the harm or its aftermath; and second, the secondary victim directly perceived such harm to the primary victim, which caused the psychiatric injury to the former.

35.  In the context of medical negligence, where the alleged negligence of the medical personnel in diagnosis and treatment did not cause the condition of the patient, ie the primary victim, being diagnosed and treated, question arose as to whether there exists an actionable cause of claim by persons in a relationship of love and affection with the patient against the medical personnel for psychiatric injury suffered as a result of witnessing the condition or death of the patient having been negligently diagnosed and treated.

36.  North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 is the case in the specific context of medical negligence, which the Parents indeed heavily relied on. To the extent that their claims are said to have been not only meritorious but also likely to succeed, that is. In Walters, the critical condition of the baby admitted first to the defendant hospital was revealed by the receiving hospital after his transfer. The defendant hospital accepted that the baby was not properly diagnosed or treated. Had that been otherwise so as to enable liver transplant, he would probably have lived. The mother was “stunned” by the turnaround view of the baby’s condition revealed and the subsequent lack of hope leading to the decision to withdraw the baby’s life support. The baby dying in the mother’s arms left the mother with devastating effect and psychiatric condition beyond grief. The trial judge allowed the claim by the mother for nervous shock due to the defendant hospital’s negligence. The appellate court upheld the judgment.

37.  Worth noting is that the appellate court in Walters acknowledged (at §21) the unsatisfactory state of the law, but considered it unnecessary to examine the law in detail apart from applying what has been applied since Alcock (above) to the facts of the case, which were largely admitted/common ground. Specifically, the appellate court (at §§42-43) did not consider the exercise to be advancing the frontiers of liability, but applying the same principles albeit to a medical negligence case. This was noted by the Supreme Court in Paul (as discussed below), which therefore highlighted (at §59) that the issue of whether secondary victim claims can be made in medical negligence cases has in fact never been examined in any depth or authoritatively decided.

38.  Those acting for the Parents also relied on the Hong Kong cases of Law Yin Bok Bosco v Dr Chan Yee Shing HCPI 369/2010 (heard together with Lam Po Yee & Anor v Dr Chan Yee Shing HCPI 62/2011) (8 May 2017) and Yick Hong Kwai (Deceased) v Lok Wai Wa HCPI 476/2010 (6 July 2015). Both are first instance decisions. The former had a medical negligence context. In Law Yin Bok Bosco, the defendant doctor allowed judgment on liability to be entered, and hence the assessment of damages on that undisputed basis. Yick Hong Kwai was a judgment of this court where I rehearsed the principles relating to secondary victim’s claim for nervous shock, including Walters, but obviously not in the context of medical negligence.

39.  Pausing here, one should be reminded of what underlies reference to authorities of foreign jurisdictions since the establishment of the final court in Hong Kong. The importance of proper understanding of stare decisis was recently reiterated by the Court of Final Appeal judgment in Mai Jieping trading as Fai Tat Rmb Exchange v Wong Chi Hung [2026] HKCFA 14. As of the time when the present action was commenced, the state of the relevant law was what was discernible from Walters. It was highly persuasive, but not binding on the local court. On this basis, there was equally no binding authority in the local jurisprudence deciding on the applicability and application of the principles discussed in Walters in the context of medical negligence.

40.  Both sides referred to the fact that they have respectively consulted overseas Leading Counsel in the field, whose apparently opposite opinion about the merit of the claims was made known in general terms for the present case. Nevertheless, in view of the state of the law in the context of medical negligence, both in the UK and Hong Kong, as of the time when the present action was commenced, as well as the same having had yet to be applied to the facts of the present case to be tried, the merit of the Parents’ claims may not be categorised as more than warranting reasonable argument.

41.  I say the same, notwithstanding the alleged effective acknowledgement of liability by the Doctor vis-à-vis the Infant, as that made by the defendant hospital in Walters. For the purpose of liability, proof of medical negligence on the part of the Doctor does not stand as that of the other components of liability for the purpose of the claims by the Parents as secondary victims. The application of Walters to the present case would be subject to the relevant facts to be tried and found by the court in addition to the Doctor’s admission to the claim on behalf of the estate of the Infant or proof of negligence on his part.

42.  To say that the Parents’ claims had “every chance of success”, those acting for them were not, as they could not in these circumstances be, suggesting beyond what they perceived to be a strong case against the defendants. As they also argue, those acting for the Doctor and the Hospital never perceived that their claims were liable to be struck out either. The fact was neither side would have been free from the litigation risk, had the action between them continued.

43.  Then came the judgment of the UK Supreme Court overruling Walters on the law. In the 3 cases before the UK Supreme Court in Paul, the primary victims passed away due to alleged medical negligence by medical practitioners, and the close relatives of the primary victims claimed against the medical practitioners as secondary victims by witnessing the primary victims’ death. The highest court reiterated that an accident means an unexpected and unintended event in which injury or the risk of injury is caused by violent external means. The events or their aftermath witnessed by the secondary victim of medical negligence are not categorised as accidents. In any event, medical practitioners in medical crisis do not owe a duty of care towards secondary victims who witnessed the death of primary victims, and therefore the secondary victims in these medical negligence cases are not entitled to recover any damages for any psychiatric injuries suffered. In Walters, the brain damage and death of Mrs Walter’s son was not caused by an accident but a medical negligence incident. The medical practitioner in question did not owe a duty of care towards Mrs Walters. She should not be entitled to recover damages for her psychiatric injuries upon witnessing the death of her son.

44.  No doubt the UK Supreme Court in Paul overruled Walters, including, as a matter of principle, the existence of duty of care on the part of medical personnel to those who may fall within the category of proximate relationship with the primary victim of medical negligence. However, the change brought about by Paul to the present consideration was not reversing original likely success of the Parents’ claim to becoming doomed.

45.  So far the discussion concerns the purpose of determining the costs issue. The state of the relevant law in Hong Kong, in view of the above development in the UK jurisprudence, should perhaps be left to be adjudicated on another occasion of a fully argued contest.

Other cited instances

46.  The Parents then cited other instances of no order as to costs where the court found that it was plainly reasonable for one to claim or defend until the state of affairs was changed by the change in law. The cited cases included M v Croydon LBC [2012] 1 WLR 2607 (CA); Tang Pun Sang v Tang Kwok Shu [2024] 1 HKLRD 1226 at §§11-12; Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700; Gold & Copper Resources Pty Ltd v Minister for Resources & Energy & Anor [2014] NSWLEC 169 and Vincent Ross Siemer v David Harvey & Anor [2012] NZHC 1434.

47.  Readily apparent from the above judgments cited, including the only Hong Kong case of Tang Pun Sang, is the common context of judicial review or action against public office or body for remedies for breach of human rights. The circumstances, and hence the applicable considerations in respect of costs, were peculiar.

48.  In the other Hong Kong case cited, namely Oriental Press Group Ltd & Anor v Next Magazine Publishing Ltd & Ors CACV 371/2000 (26 October 2001), the final court set aside the judgment below and ordered a retrial on the basis that the judgment became wrong as a result of the change in the law without fault of the parties or the trial judge. Had there been no change of the law, the defendants would have completely failed in their appeal. Hence the order that the costs of the appeal be in the cause of the retrial, the original order nisi as to the costs of the appeal confirmed and no order as to the costs of the trial. That the circumstances were also peculiar needs no further explanation.

49.  In 深圳正高金屬製品有限公司 (above), the court in granting leave to discontinue the action ordered that the defendant shall bear the plaintiff’s costs of the action. The reason was that the defendant’s conduct, the court found, demonstrated that it was no longer interested in participating in the action; and even if the defendant appeared in the trial, the plaintiff would be bound to succeed at the trial based on the favourable expert report on liability, in which the court found no flaw, if it proceeds as scheduled. The plaintiff was justified in discontinuing the action, which, even if succeeding as expected, would result in an empty judgment and costs wasted. This hardly serves as a comparable for the present purpose.

Conclusion

50.  All the relevant circumstances considered, I am not convinced that this is a case where the court ought to depart from the norm and to exercise discretion so as to deprive the defendants of their costs incurred and effectively wasted, upon the Parents’ decision to proceed no more against them.

Conduct of parties

51.  O62 r5(1) RHC mandates the court in exercising its discretion as to costs to take into account various circumstances to the extent as may be appropriate in the case. Amongst them is the underlying objectives set out in O1A r1 (ie (aa)) and the conduct of all the parties (ie (e)).

52.  For the present purpose, the consideration is whether notwithstanding the above conclusion, the defendants nevertheless ought to be deprived of their costs or any part of it in view of their conduct of the proceedings in the action.

53.  Essentially, it was argued on behalf of the Parents that their claims were delayed for over a decade as a result of the unreasonable conduct and strategic delaying tactics of the defendants.

54.  The procedural chronology summarised above refers. The Parents demarcated the period of delay into 2 sections.

Psychiatric expert evidence

55.  The first period of delay was between February and October 2017 concerning the preparation of the joint psychiatric expert report on quantum.

56.  The joint instruction to the psychiatric experts was issued on 5 August 2015. On 9 September 2015, the psychiatric experts issued their joint psychiatric report. On 17 February 2017, request was made on behalf of the Doctor for a supplemental joint psychiatric report.

57.  On 28 February 2017, the court granted an order for the parties to issue joint instruction to the psychiatric experts for a supplemental joint report in respect of the respective psychiatric conditions and working capacity of the Parents, having regard to the discovery and further witness statements within 35 days, ie 4 April 2017.

58.  The parties failed to comply with the order.

59.  On 8 August 2017, the parties jointly wrote to the court relating to their disagreement on the draft joint instruction, and sought the court’s directions. Considering the relevant documents supplied by the Parents and the clarification by the parties of their respective stances, the court handed down her decision on 20 September 2017, ordering the parties to rework their comments and to explain the purpose of certain issues raised to the psychiatric experts. The court ordered the parties to finalise and to dispatch the joint instruction to the experts as soon as possible.

60.  On 24 October 2017, those acting for the Parents informed the court of the lack of “responsiveness” from the defendants, and therefore proposed to issue the joint instruction as it was to the psychiatric experts. That prompted those acting for the Doctor to inform the court of the parties’ agreement in mid-October 2017 to postpone the deadline for issuing the joint instruction pending the mediation scheduled to take place on 23 October 2017. On 25 October 2017, those acting for the Parents wrote to explain that the mediation ended earlier than anticipated, and hence their decision to send the draft joint instruction to the court on 24 October 2017 as mentioned.

61.  On 30 October 2017, the court gave direction that unless the parties reached an agreement on the joint instructions and despatched the agreed joint instructions within 14 days, they were to attend a hearing before the court on 17 November 2017. On 13 November 2017, the parties jointly informed the court that the joint instruction was finalised and despatched on the same day. Hence vacating of the scheduled hearing.

62.  On 8 May 2018, the psychiatric experts issued their joint supplemental report.

63.  The Parents complained about the delay on the part of the Doctor in requesting for the supplemental psychiatric expert report. Whilst they now categorised such move as delaying tactics, the fact was that the matter was placed before the court for consideration, who also decided in September 2017 to give leave for such supplemental expert report to be obtained. Relevantly, instead of any adverse costs order or reservation of costs issue in view of the delay attributable to either side, the court considered that it was still appropriate to order the costs of the application to be in the cause. It is not up to me to effectively re-open the issue of the incidence of liability for such costs on the basis of the conduct on the part of any part such as the delay complained about. Such costs as ordered now form part of the costs depending on the outcome of this action. Discontinuance of the action, that is.

64.  The Parents then complained about the delay on the part of the Doctor in finalising the joint instructions to the psychiatric experts for the supplemental report after leave had been granted. As mentioned above, the parties’ exchange in this respect since the order of the court until mid-October 2017 came to a consensual suspension pending the mediation scheduled on 23 October 2017. That those acting for the Parents acted forthwith on 24 October 2017 upon the apparent early conclusion of mediation did not mean delay on the part of their counterpart to respond. Pursuant to the direction of the court, the matter was resolved after mid-November 2017 again with no order as to costs.

65.  The cause for complaint in fact rested with the court, which was left without prompt update on the situation. It was in early August 2017, which was more than half a year after the hearing in February 2017, that the parties alerted the court to their disagreement regarding the joint instructions to the psychiatric experts. Then the delay in finalisation in the joint instruction. Both parties, it would appear, had their parts to play in contributing to the undesirable situation.

Forensic accounting expert evidence

66.  The second period of delay referred to by the Parents concerned the issuance of the joint instruction to forensic accounting experts for their opinion relating to quantum, spanning over the period between May 2018 to June 2023.

67.  By the order of the court on 28 February 2017, the parties were to settle their joint instruction to their forensic accounting experts within 21 days of the completion of the supplemental joint psychiatric report mentioned above, ie by the end of May 2018. The parties failed to agree on the joint instruction.

68.  On 11 October 2018, those acting for the Parents wrote to the court for directions. On 29 October 2018, the court directed the parties to lodge the draft joint instruction with mark ups and comments together with the relevant documents and submissions for the court’s consideration. After multiple extensions of time, this was done by mid-December 2018.

69.  As mentioned, the court handed down her decision on 31 January 2019 in relation to the joint instruction to the forensic accounting experts. The parties were ordered to finalise the joint instruction within 14 days, and to despatch the joint instruction to the forensic accounting experts within 7 days thereafter.

70.  Again, that proceeded far from satisfactorily.

71.  Since November 2022, the parties had attempted to engage this court by way of a series of correspondence. Subsequent to my directions made in late November 2022 and May 2023, the parties finally wrote to this court confirming that they were able to finalise the joint instruction to the forensic accounting experts and to have the same dispatched in mid-June 2023.

72.  Those acting for the Parents criticised the defendants for, amongst other things, last minute changes to the draft joint instruction, with contradicting comments, after confirming readiness to finalise; refusing to finalise the joint instruction pending further disclosure, unreasonable query on the legibility and completeness of documents that were provided and requesting unnecessary documents; demanding disclosure of third party tax documents not in their possession, custody or power; demanding affidavit in explanation of gaps in disclosure which had no relevance to the instruction to the experts; proposing the experts to meet before finalising the instruction, which was not contemplated by the court’s direction; and refusing to consent to the filing of the Parents’ further witness statement.

73.  The defendants disagreed. Instead, they attributed the delay to the Parents. The Parents are said to have provided fluctuating, inconsistent and contradictory evidence on quantum, which is evident from the extensive corrections to the financial information by the Father’s second witness statement adduced in mid-May 2023.

74.  The correspondence since early 2019 recorded the parties’ discussion and disagreement relating to the terms of the draft joint instruction to the forensic accounting experts. In the meantime, they also recorded that those acting for the Doctor, and subsequently both defendants, had chased for discovery of documents pertaining to the alleged earnings and financial losses of the Parents for the forensic accounting expert consideration. Discovery of relevant tax demand relating to the Mother was still happening in early 2020. Affidavit to correct the financial information previously provided and to verify the state of possession of financial documents was still filed by the Father at the end of October 2021.

75.  As mentioned, I was alerted by both sides to the situation in November 2022. By then, the Parents were still seeking to adduce further witness statements and making further discovery of documents pertaining to quantum. Hence my direction dated 23 November 2022. As explained in my direction, the further witness statement and discovery of documents were bound to impact on the pending forensic accounting expert consideration.

76.  Correspondence relating to the finalisation and issuance of the joint instruction to the forensic accounting experts ensued until early March 2023. By the direction dated 18 May 2023, I set out in detail the readiness of the draft joint instruction for finalisation without issue requiring further clearance except for 6 specific aspects. I gave the parties the liberty to jointly apply but, as mentioned, forewarning them the possibility of this court dictating the finalisation after considering their representation. The joint instruction was eventually issued to the experts in mid-June 2023.

77.  That said, the experts’ consideration gave rise to queries, actually a whole list of queries, arising out of the financial information discerned from the documents provided by the Parents. The liaison between the experts, and those instructing them, began with a view to a joint list of requests for information and clarifications to the Parents for the purpose of their further consideration and compilation of the joint expert report. This lasted until late December 2023.

78.  Then came the judgment in Paul handed down in January 2024. Those acting for the Doctor alerted those acting for the Parents to that judgment a week later. What followed as mentioned above refers.

79.  Apart from their disagreement on the terms of the joint instruction to the forensic accounting experts, much delay arose out of the parties’ argument on the relevant financial information necessary for the experts to complete their task. Both had to do with the basis of the Parents’ claims for their respective financial losses including the projected loss of income of the Father as a managing director and majority owner of a business in excess of HK$30 million and that of the Mother as the founder of another business in excess of HK$15 million. In my written direction dated 18 May 2023, I referred to the discussion of the scenarios and approach for the forensic accounting expert evidence by Hon Marlene Ng J in her decision dated 31 January 2019. It is not difficult to detect certain degree of complexity in the exercise.

80.  Both sides had their parts to play in contributing to the delay. Their disagreement as to the reasonableness of requests and answers aside, both sides attributed their delay to various other circumstantial factors at different points of time such as lack of possession of the requested documents and the inconvenience caused by the intervening COVID-19 pandemic during 2019-2022. In view of the amounts claimed for expected loss of earnings and earning capacity, the vigilance of those acting for the defendants in seeking what were considered to be relevant financial information, in my view, was not out of proportion. The preliminary views formed by the forensic accounting experts of the information eventually provided to them tend to serve as retrospective verification of the complexity and difficulty in this respect. All of those considered, and in view of what eventually came about in terms of substantive steps to address those requests and answers, I do not consider my mind changed about the mutual responsibilities of the parties for the delay.

81.  If necessary, which is not any more, I would have ordered now that the costs occasioned by the parties’ paper applications to this court in late 2022 and early 2023, which had been reserved, to be in the cause in these circumstances.

Proposal for trial of preliminary issue

82.  This in my view may be disposed of briefly.

83.  Those acting for the Parents cited another instance of the alleged delaying tactic on the part of those acting for the defendants (or precisely the Doctor). This happened in March 2023 when those acting for the Doctor proposed to those acting for the Parents to explore the possibility of a trial on the preliminary issue of whether the Doctor owed a duty of care to the Parents as secondary victims pursuant to O14A, r1 and O33 rr3-4 of the RHC. Those acting for the Parents viewed the proposal as late. They went further to suggest a sinister view of that episode as a design by those acting for the Doctor to delay issuing the joint instruction to the forensic accounting experts, actuated by their prayer for the outcome of Paul which was due to be heard by the UK Supreme Court in May 2023.

84.  The proposal for the determination of the duty of care between the Doctor and the Parents as a preliminary issue at that stage was arguably late. Whether costs would have been saved was also arguable. As such, the suggestion by those acting for the Doctor might be liable to be rejected. It indeed was. However, I refuse to take the sinister view of the episode as suggested. Objectively there was no circumstantial evidence in support of the alleged design. The proposal was made with relevant explanation in legitimate terms, albeit not likely shared by the court.

85.  Upon the rejection by those acting for the Parents, no argument followed. Nor did those acting for the Doctor insist. The parties returned to finalising the joint instruction. No delay resulted from that episode as a matter of fact.

The Parents’ delay in lodging submission

86.  Those acting for the Doctor raised this. This too may be disposed of briefly.

87.  It is unnecessary to repeat or dive into further details of the Parents’ repeated delay in lodging their written submission for the present purpose. At one point, those acting for the Parent adopted what I described above as odd interpretation of my explanation of the way forward in this respect. However, none of these has significant, if any, bearing for the present purpose.

Pro bono basis

88.  Pursuant to the 23/6/2025 Direction, the parties were to address the issue raised on behalf of the defendants as to whether those acting for the Parents have been doing so on a pro bono basis in their affidavits filed for the present purpose. The parties did, including the affirmation filed by the solicitor acting for the Parents.

89.  The soliciting acting for the Parents chose not to confirm one way or the other, as she took the view that the query was irrelevant so long as any costs recoverable from the defendants would not extend to work done on a pro bono basis, if any.

90.  Those acting for the defendants argued to the contrary. They argued that if those acting for the Parents have indeed been doing so on a pro bono basis, a ruling of no order as to costs between the parties would in effect mean only the defendants would be bearing costs out of pocket. That, they argued, would be unjust.

91.  I see that the defendants may feel sour about no order as to costs if the defendants would be footing their own bill of costs while the Parents would not need to do so as at the same time because their legal representatives have been acting on a pro bono basis. However, an order of no order as to costs is made in circumstances where it is just not to impose liability on either side to pay the other’s costs. This is in principle an inter partes consideration of the incidence of costs liability. Whether or not either party happens to have had legal representation on a pro bono basis should not affect.

92.  When the costs issue remains open, no order as to costs is but one possible outcome which the court may arrive at. The fact that one side had legal representation on a pro bono basis will not give rise to the sour feeling which the defendants now have, if any order other than no order as to costs is made by the court. In the event that the defendants were to be ordered to pay the Parents’ costs, their pro bono legal representation would certainly have had bearing on the amount payable, if any, but not the incidence of liability to pay. As mentioned, to that extent, the issue will be taken in taxation.

93.  In the circumstances, this argument of the defendants does not feature in my consideration of the appropriate order as to costs, including my refusal to make no order as to costs as proposed by the Parents. As it now turns out, the Parents have failed to convince this court to depart from the norm whereby it would be them who should be liable for the defendants’ costs upon discontinuance of the action. The issue of possible pro bono legal representation on the part of the Parents does not have actual bearing.

COSTS OF THE DS’ SUMMONS

94.  The Parents argued that Ds’ Summons was admittedly defective, and asked for no order as to costs of it.

95.  The circumstances surrounding the summons, and the problems of the summons, were referred to in the background summarised above. As mentioned, in view of the known stance of the Parents, this court put aside technical and procedural irregularities, and gave leave at the hearing on 23 April 2025 for the discontinuation of this action notwithstanding the lack of a formal summons of the Parents.

96.  Be it under the Ds’ Summons or the application by the Parents to discontinue, which was accepted verbally, there would be the same consequential costs issue, which has been the real issue between the parties ever since the indication by the Parents of their intention to discontinue in early 2025. In the circumstances, I am prepared to make no order as to costs of the Ds’ Summons itself but not those occasioned by it, including the hearing on 23 April 2025 and, of course, those occasioned by the order made on that day for the parties to argue as well as the paper disposal of the costs issue.

ORDER

97.  I make the following order.

98.  In respect of the Infant’s Summons, there be an order in terms, and that such costs shall be taxed if not agreed.

99.  In respect of the Ds’ Summons:

(1) between the Parents and the defendants, the former do pay the latter’s respective costs of the action, including any costs between them which have been reserved;

(2) save that there be no order as to costs of the Ds’ Summons, the Parents do pay the defendants’ respective costs occasioned by the summons, including the hearing on 23 April 2025 and the paper disposal of the consequential costs issue;

(3) costs under (1) and (2) above shall be taxed, if not agreed, with certificate for counsel.