TSUI KIN KEUNG v. A.S. WATSON & CO LTD AND ANOTHER

HCPI 508/2015

[2020] HKCFI 1982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 508 OF 2015

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DECISION ON COSTS

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The Judgment

1.  By my judgment (the “Judgment”) handed down on 28 May 2020 (the “Date of the Judgment”), I dismissed P’s claim against both Ds. I made a costs order nisi (the “Costs Order Nisi”) that D1 and D2 shall have the costs of the action (including for avoidance of doubt the costs of the contribution proceedings between them), to be taxed if not agreed. 

2.  Both Ds have since filed submissions before me seeking variation of the Costs Order Nisi — those of Messrs Fairbairn Catley Low & Kong (“FCL&K”) for D1 dated 11 June 2020, and those of Messrs Clyde & Co (“C&C”) dated 4 June 2020.

Ds’ applications

3.  In relation to D1:

 (a)  it seeks to vary the Costs Order Nisi to the extent that P shall pay D1’s costs of the action on an indemnity basis at High Court Scale on the basis that P’s claim was hopeless (which he knew it or should have realized it to be so); and

 (b)  alternatively, P should pay D1’s costs from 19 December 2017 on an indemnity basis given a letter marked “WITHOUT PREJUDICE SAVE AS TO COSTS” and “SANCTIONED OFFER” FCL&K issued to P that day (“D1’s 19/12/17 Letter”). In that letter, FCL&K commented on the lack of merits in P’s claim and made reference to the employees’ compensation already paid by D1 to P.  FCL&K made an offer that P “do wholly discontinue the captioned action against [D1] forthwith, and to bear [D1’s] costs in this action to be taxed if not agreed”.

4.  In relation to D2:  

 (a)  D2 similarly seeks its costs of the action (including the contribution proceedings) on an indemnity basis.  The basis is also that P’s claim is doomed to fail and P knew or ought to have known about it;

 (b)  D2 has 2 fallback positions, that D2’s costs:

 (i)  from 24 June 2015 onwards be borne by P on an indemnity basis given a letter of 24 June 2015 from C&C demanding P to discontinue the action against D2, or

 (ii)  from 30 December 2015 (the “Cut‑off Date”) onwards be borne by P on an indemnity basis given a sanctioned offer made to P via letter of 1 December 2015 (“D2’s 1/12/15 Letter”) whereby P was invited to discontinue the action against D2 with no order as to costs between them;

 (c)  in relation to D2’s costs incurred from the Cut‑off Date, D2 further seek interest:

(1)  at an enhanced interest rate not exceeding 10% above the judgment rate as this Court thinks fit for the period from the Cut‑off Date to 27 May 2020, and

(2)  at judgment rate for the period from the Date of the Judgment till payment.

5.  P has filed no submissions in reply.

Discussion

6.  I dismissed P’s claim because I did not accept his evidence.  That was based on my finding of his credibility and reliability as a witness. I cannot conclude that P knew or ought to have known that his case was hopeless or doomed to fail.

7.  On the above basis, I refuse Ds’ applications that all of their costs should be borne by P on an indemnity basis.

8.  However, in so far as D1 is concerned, I take into account D1’s 19/12/17 Letter. I accept the submissions of FCL&K that had P accepted D1’s without prejudice offer, the action would not have proceeded to trial and substantial costs would have been saved.  In the exercise of my discretion, I order that D1 should be awarded indemnity costs from 19 December 2017 onwards.

9.  In so far as D2 is concerned:

 (a)  I take into account D2’s 1/12/15 Letter.  In the exercise of my discretion, I order that D2 should be awarded indemnity costs from the Cut‑off Date onwards;

 (b)  on the question of interest, I have considered Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273 cited to me.  I accede to the submissions of C&C and order that in relation to D2’s costs incurred from the Cut‑off Date, D2 should:

 (i)  have interest at the enhanced interest rate of 4.5% per annum above the judgment rate from the Cut‑off Date to 27 May 2020, and

 (ii)  at judgment rate for the period from the Date of the Judgment till payment.

Disposition

10.  For the reasons set out above, I vary the Costs Order Nisi as follows, that:

 (a)  D1 and D2 shall have the costs of the action (including for avoidance of doubt the costs of the contribution proceedings between them), to be taxed if not agreed;

 (b)  D1’s costs of the action (including for avoidance of doubt the costs of the contribution proceedings between them) from 19 December 2017 onwards should be taxed on an indemnity basis at High Court Scale;

 (c)  D2’s costs of the action (including for avoidance of doubt the costs of the contribution proceedings between them) from 30 December 2015 onwards should be taxed on an indemnity basis at High Court Scale;

 (d)  In relation to D2’s costs incurred from 30 December 2015, D2 should:

 (i)  have interest at the enhanced interest rate of 4.5% per annum above the judgment rate from 30 December 2015 to 27 May 2020, and

 (ii)  have interest at judgment rate for the period from 28 May 2020 till payment.

11.  On the basis that P has filed no submissions in opposition, and I have not acceded to all the requests for variation made on behalf of D1 and D2, I make no order as to costs in relation to these applications for variation.