RAMOS MIRAZUL A. v. PRO SEARCH (ASIA) LTD

DCCJ5878/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5878 OF 2002

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J U D G M E N T

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1.  This is an application by the plaintiff for a variation of my costs order nisi which had been varied once already.

2.  The application asks for a certificate for counsel in this action, which is for the benefit of both sides, and also that the costs of the parties be taxed on the High Court scale from the start of the action in the High Court from 2 September 1998 to 10 September 2002, when the case was transferred to the District Court, and on the District Court scale from 11 September 2002 onwards.

3.  The plaintiff in this case only recovered $18,822.37, and on the strength of the judgment in M Beraha & Company Limited v Ng Wai Lun CACV256/2003,the applicable scale of costs for the plaintiff should be that of the Small Claims Tribunal.   However, after the claim was instituted in the High Court, the defendant launched a counterclaim for the sum of $61,015.34. That counterclaim should have been brought in the District Court but for the fact that the claim was then instituted in the High Court.

4.  I therefore take the view that despite the fact that the judgment in favour of the plaintiff was within the Small Claims Tribunal’s jurisdiction, the applicable scale of costs should be that of the District Court because of the existence of the counterclaim.  Therefore the costs of the parties should be taxed on the District Court scale from 2 September 1998 onwards.

5.  Regarding certificate for counsel, Mr Fung submitted that if the plaintiff was desirous to ask for its inclusion in my costs order, they should have done so long ago.  I appreciate the strength of that.  However, I am told and I accept that the Legal Aid Department has already paid the costs to the defendant and those costs included the defendant’s costs for engaging counsel.

6.  In the circumstances, I see no reason why the plaintiff should not have the benefit of the same provision, and for this reason, I reopen my costs order and include a certificate for counsel in this action for the benefit of both parties.

7.  Before concluding, I should also say a few words about Mr Cheung’s submission for the plaintiff that the High Court scale of costs should apply.  He says that even if a plaintiff who starts an action in the High Court and the action is dismissed at the end, the plaintiff, if successful in interlocutory matters, would still get costs and those costs would still be taxed on the High Court scale.

8.  My response to this is that when costs orders are made on interlocutory applications, normally attention would not be focused on the quantum of the ultimate judgment or whether the plaintiff or the defendant would succeed in the end.  The costs order made on those instances would normally be based on matters happening in those applications, and therefore is not a guide on considering what scale the court should adopt for a costs order made at the end of the case.

9.  Since each side has succeeded to some extent on this application, I propose not to make any order of costs on this application.