LAM PO YEE AND ANOTHER v. DR CHAN YEE SHING also known as DR CHAN YEE SHING ALVIN

HCPI 62/2011

[2018] HKCFI 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 62 OF 2011

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D E C I S I O N

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I. BACKGROUND

1.  On 8 May 2017, I handed down judgment in HCPI369/2010 and HCPI62/2011 (“Judgment”) and also reasons for decision in HCPI62/2011 (“Reasons”). For convenience, unless otherwise stated, I adopt the abbreviations in the Judgment/Reasons. The Reasons concerned the Doctor’s application to strike out parts of the Parents’ claims.

2.  By the Judgment, I awarded $172,500 for the Father Care Claim in the Bosco Action, and $935,920 for the Mother’s claim and $293,211 for the Father’s claim with interest payable on the awards (a) for PSLA in the Parents Action at 2%pa from the date of the Writ of Summons to the date of judgment and (b) for special damages in the Parents Action from 21 August 2009 to the date of judgment at half judgment rate, and thereafter at judgment rate until payment.

3.  I also granted the following costs order nisi in the Parents Action: (a) the Doctor shall pay the Mother’s and Father’s respective costs of the assessment of damages on District Court scale to be taxed if not agreed, and (b) the Parents’ own costs be taxed in accordance with Legal Aid Regulations (“Parents Costs Order Nisi”). I also granted the following costs order nisi in the Bosco Action: (i) the Doctor shall pay Bosco’s costs of the Father Care Claim on District Court scale to be taxed if not agreed, and (ii) Bosco’s own costs be taxed in accordance with Legal Aid Regulations (“Bosco Costs Order Nisi”).

II.  BACKGROUND

4.  In respect of the Incident, Bosco by the Mother as next friend sued the doctor for damages for negligent treatment in the Bosco Action, and the Parents sued the Doctor for damages for nervous shock in the Parents Action. The Actions were consolidated in 2011.

5.  On 31 March 2011, the Doctor made a sanctioned payment of $600,000 for settlement of the whole of the Parents’ claims (“1^st Sanctioned Payment”). On 1 June 2011, Master Roy Yu ordered the Doctor to make interim payment of $200,000 on account of damages for the Parents to be paid out of the 1^st Sanctioned Payment.

6.  On 30 September 2011, Bosco and the Parents filed the Consolidated Revised Statement of Damages (“CRSoD”).

7.  On 30 January 2012, the Doctor made a further sanctioned payment of $1,000,000 (of which $600,000 was for the Parents Action, “2^nd Sanctioned Payment”), so the total amount offered in settlement of the Actions was $2,340,000 by taking into account the interim payment of $160,000 for the Bosco Action on 13 October 2010 (additional to the funds in court) and $200,000 for the Parents Action (out of funds in court). The total sanctioned payments for the Parents Action (ie the 1^st and 2^nd Sanctioned Payments) were $1,200,000 (“Parents Funds”).

8.  The 1^st Trial was heard in November 2012 by DHCJ. By the Bosco Judgment handed down on 20 November 2012, the Actions were practically deconsolidated, and Bosco was awarded damages in the sum of $314,608 with interest/costs. The DHCJ further ordered the Father Care Claim to be considered in the context of the Parents Action. Consequently, by the PTR Decision handed down by this court on 20 August 2013, leave was granted for transfer of the Father Care Claim and also the claim for FDH expenses from the Bosco Action to the Parents Action. The RRSoD and Revised Answer in the Parents Action were subsequently filed on 2013.

9.  By the CA Judgment handed down on 19 February 2014, the CA allowed the appeal against the Bosco Judgment to the extent of (a) increasing the award for PSLA from $175,000 to $275,000, (b) increasing the award for future cost of prostheses from $20,000 to $125,000, and (c) adjourning Bosco’s Father Care Claim to be heard with the Father’s claim in the Parents Action. At the 2^nd Trial before this court (which commenced in November 2014), I granted leave to reinstate the pleaded claim/answer for the Father Care Claim in the Bosco Action on the basis that the Father would not claim for loss of earnings on his own account over the same period in the Parents Action. Thus, the issues for the 2^nd Trial were the Father Care Claim in the Bosco Action and the Parents’ respective claim in his/her own account in the Parents Action.

III.  SUMMONS

10.  By a summons filed on 22 May 2017 (“Summons”), the Doctor applied for the following orders in respect of the Bosco Action:

(a)  the awards for PSLA and special damages with interest (as specified in the Summons) and the Father Care Claim were to be settled out of the sanctioned payments made by the Doctor in the Bosco Action (“Bosco Funds”);

(b)  the balance of the Bosco Funds together with interest thereon be paid to the DLA for settlement of the awards in favour of the Parents with any remaining balance to be paid to the Doctor’s solicitors;

(c)  no interest be awarded to Bosco except as provided above;

(d)  Bosco was to pay the Doctor’s costs of the Bosco Action including all previously reserved costs from 19 May 2011 on High Court scale and on indemnity basis to be taxed if not agreed;

(e)  Bosco was to pay enhanced interest at 10%pa above judgment rate on the Doctor’s costs from 19 May 2011;

(f)  the Bosco Costs Order Nisi in respect of the Father Care Claim be varied such that Bosco was to pay the Doctor’s costs of the Bosco Action relating to the Father Care Claim, including all previously reserved costs, from 19 May 2011 on High Court scale and on indemnity basis to be taxed if not agreed, and Bosco was to pay enhanced interest at 10%pa above judgment rate on the Doctor’s costs of the Bosco Action in respect of the Father Care Claim from 19 May 2011;

(g)  Bosco’s own costs of the Bosco Action to be taxed in accordance with Legal Aid Regulations; and

(h)  the Doctor’s summons dated 26 November 2012[1] as amended by the order of the PI Judge Bharwaney J dated 21 August 2014[2] be dismissed with no order as to costs save and except that Bosco’s solicitors be granted their own costs of and occasioned by such summons on a party and party basis.

11.  By the Summons, the Doctor applied for inter alia the following orders in respect of the Parents Action:

(a)  $1,107,083.15 from the Parents Funds and such part of the Bosco Funds as might be necessary and available (after the payment in paragraph 10(a) above) be paid out of court to the DLA for the benefit of the Parents in full satisfaction of the balance of the principal sums of damages and interest awarded by the court on 20 November 2012 (should be as per the Judgment), but taking into consideration the interim payment of $200,000 (paid out of the Parents Funds) on 1 June 2011;[3]

(b)  no interest be awarded to the Parents except as provided in footnote 3 above;

(c)  the Parents were to pay the Doctor costs of the Parents Action as from 27 February 2012, including all previously reserved costs (“Parents Reserved Costs”) and costs of the Doctor’s strike out application of 7 November 2014 (“Doctor Strike Out Costs”), on High Court scale and on indemnity basis, to be taxed if not agreed;

(d)  the Parents were to pay enhanced interest at 10%pa above judgment rate on the Doctor’s costs from 27 February 2012; and

(e)  the Parents’ own costs of the action to be taxed in accordance with Legal Aid Regulations.

12.  The Summons also sought the following reliefs: (a) costs of the application by the Summons be to the Doctor on an indemnity basis, and (b) Bosco’s and Parents’ own costs in the Actions to be taxed in accordance with Legal Aid Regulations.

13.  On 22 May 2017, the Doctor filed the affidavit of his solicitor Oonagh Toner (“OT 1^st Aff”) in support of the Summons.

14.  The Doctor failed to amend the Doctor Summons (see footnote 1 above), ie his summons filed on 26 November 2012, pursuant to the order of the PI Judge dated 21 August 2014 (see footnote 2(a) above). At the hearing on 6 June 2017, I granted the following orders: (a) there be extension of time for the Doctor to file the amended Doctor Summons, (b) service of the amended Doctor Summons be dispensed with, (c) there be no order as to costs of and occasioned by the Doctor’s application for time extension, and (d) Bosco was to re-file the sealed copy of the order of the PI Judge dated 21 August 2014.

15.  At the hearing of the Summons on 6 June 2017, I also granted inter alia the following directions in relation to the reliefs sought in such Summons in the Parents Action (see paragraphs 11-12 above):

(a)  leave for the Doctor to withdraw his application for the Parents to pay the Doctor Strike Out Costs on High Court scale and on indemnity basis to be taxed if not agreed and to pay enhanced interest at 10%pa above judgment rate on such costs (“Doctor Strike Out Costs Application”);

(b)  costs of the Doctor Strike Out Costs Application and costs of the Doctor’s withdrawal of such application (see (a) above) be reserved;

(c)  leave for the Parents to file/serve affidavit in opposition within 28 days;

(d)  leave for the Doctor to file/serve affidavit in reply within 28 days thereafter;

(e)  no further affidavits shall be filed/served;

(f)  the reliefs sought in the Parents Action set out in paragraphs 11-12 above (subject to (a)-(b) above) be adjourned for argument before this court; and

(g)  costs be reserved.

16.  At the hearing of the Summons on 6 June 2017, I also (a) adjourned the Doctor’s application for the reliefs sought in the Bosco Action set out in paragraphs 10 and 12 above to be heard by the PI Judge at a directions hearing to be fixed with 15 minutes reserved, (b) directed the Doctor to write to the PI Judge with copy to Bosco to seek an appropriate appointment for the aforesaid directions hearing to be heard as soon as practicable, and (c) directed that the issue of reserved costs raised in paragraph 86 of the OT 1^st Aff be reserved for consideration and, where appropriate, directions by the PI Judge at the aforesaid directions hearing.

17.  On 9 June 2017, the Doctor filed his amended Doctor Summons.[4]

18.  On 4 July 2017, the Parents filed the affirmation of Kwan Long Yee Corrina to oppose the Summons (“Kwan 1^st Aff”).

IV.  TIME SUMMONS

19.  On 1 August 2017, the Doctor filed a summons returnable before Master Roy Yu for extension of time until 15 August 2017 to file/ serve his affirmation in reply (“Time Summons”). On 21 August 2017, the Parents filed Kwan’s affirmation in opposition (“Kwan 2^nd Aff”).

20.  On 5 September 2017, the Doctor filed Toner’s affirmation in reply (“OT 2^nd Aff”) without leave of the court.

21.  At the hearing of the Time Summons on 7 September 2017, Master Roy Yu adjourned such summons to 20 September 2017, and granted an order that “[the] Court will make enquiry with DHCJ Marlene Ng if Her Ladyship intends to have the [Time Summons] heard before herself or before a PI Master”. On 20 September 2017, Master Roy Yu adjourned the Time Summons to be heard together with the Doctor’s application to vary the Parents Costs Order Nisi, and directed the “[parties] …… to prepare the application for varying the costs order nisi on de bene esse basis”.

V.  SETTLEMENT OF THE AWARDS

22.  Turning back to 1 September 2017, the Parents filed a summons for the following reliefs supported by Kwan’s affirmation filed on the same date:

(a)  the Parents Funds together with interest accrued thereon be forthwith paid out of court to the Parents through the DLA in partial satisfaction of the Judgment in favour of the Parents; and

(b)  the Doctor do pay costs of the application to be taxed if not agreed, and the Parents’ own costs be taxed in accordance with Legal Aid Regulations.

23.  At the hearing on 13 October 2017, I ordered that:

(a)  without prejudice to either party’s position in respect of the Summons and Time Summons, leave to pay the sum of $1,107,728.25 out of the sums paid into court by the Doctor[5] to the Parents through the DLA in partial satisfaction of the Judgment for the Parents Action in respect of (i) damages awarded in the Parents Action and (ii) undisputed interest on damages awarded in favour of the Parents under the Judgment calculated up to 27 February 2012 (28 days after the 2^nd Sanctioned Payment on 30 January 2012);

(b)  interest accrued on the Parents Funds be paid out to the Doctor; and

(c)  costs of the Parents’ summons filed on 1 September 2017 be paid by the Doctor and summarily assessed at $5,000 to be paid within 14 days.

VI.  HEARING

24.  The Summons and Time Summons came before this court for substantive hearing on 1 November 2017 (“Hearing”). At the Hearing, I adjourned the application set out in paragraph 11(c) above insofar as it sought an order that the Parents do pay the Parents Reserved Costs on High Court scale and on indemnity basis to be taxed if not agreed to be heard by the PI Judge at a directions hearing to be fixed with 15 minutes reserved, and I granted further case management directions for bringing such matter before the PI Judge.

25.  On 15 November 2017, the Doctor’s solicitors wrote to the PI Judge on the matter of the Parents Reserved Costs, and sought approval of draft orders on costs said to have been granted by the DHCJ on 7 and 9 November 2012 (“15/11/17 Letter”).

26.  On 22 November 2017, the Parents’ solicitors filed a summons for an order inter alia that the 15/11/17 Letter be struck out on the ground that the Doctor disobeyed this court’s directions on 1 November 2017 on how the orders for the Parents Reserved Costs should be drawn up and presented to the PI Judge. On the same day, the Parents filed Kwan’s affirmation in support of such application.

27.  On 23 November 2017, the Parents’ solicitors wrote to urge the PI Judge to refrain from giving directions pursuant to the 15/11/17 Letter pending disposal of the Parents’ summons filed on 22 November 2017 (“23/11/17 Letter”).

28.  On 27 November 2017, the Doctor’s solicitors wrote to the PI Judge disagreeing they had disobeyed my directions at the Hearing (“27/11/17 Letter”).

29.  On 1 December 2017, this court by written directions informed the parties it was for the PI Judge to deal with case management on how to resolve the aforesaid disputed matters seized by him and no longer seized by this court. I therefore vacated the hearing returnable on 20 December 2017 in respect of the Parents’ summons filed on 22 November 2017, adjourned such summons to be heard by the PI Judge on 18 January 2018, and reserved the costs of and occasioned by the 23/11/17 and 27/11/17 Letters for consideration and, where appropriate, determination by the PI Judge.

VII. ISSUES AT THE HEARING

30.  At the Hearing, Ms Mok SC, senior counsel for the Parents, accepted that for the Time Summons, subject to the question of costs, this court could refer to the OT 2^nd Aff on de bene esse basis for the purpose of the Summons. I proceeded on such basis accordingly.

31.  For the Summons, the remaining issues were as follows:

(a)  whether the Parents should pay the Doctor’s costs of the Parents Action from 27 February 2012, including the Doctor Strike Out Costs, on High Court scale and on indemnity basis to be taxed if not agreed;

(b)  whether the Parents should pay enhanced interest at 10%pa above judgment rate on the Doctor’s costs from 27 February 2012, including the Doctor Strike Out Costs;

(c)  whether the Parents should pay the Doctor his costs of the applications in (a)-(b) above, and if so, whether such costs should be paid on indemnity basis; and

(d)  which party should pay the costs for the withdrawal of the Doctor Strike Out Costs Application.

VIII.  DISCUSSION

32.  The 1^st and 2^nd Sanctioned Payments made by the Doctor on 31 March 2011 ($600,000) and 30 January 2012 ($600,000) were in the total sum of $1,200,000 (ie the Parents Funds). The 28-day deadline for acceptance of the last sanctioned payment expired on 27 February 2012. Under Order 22 rule 26 of the Rules of the High Court (“RHC”), “the defendant has to pay into court a sum in satisfaction to cover not only the …… damages claimed but also any interest which might be awarded in respect of the period down to the date of payment in ……”[6] The Doctor did not expressly state in the Notices of Sanctioned Payment for the 1^st and 2^nd Sanctioned Payments that such payments “do not include interest”. In the circumstances, the Parents Funds were inclusive of all interest on PSLA and special damages in favour of the Parents (see paragraph 2 above) calculated up to 30 January 2012.

33.  Under the Judgment, the Parents were awarded a total sum of $1,229,131 with interest as set out in paragraph 2 above. The awards in favour of the Parents under the Judgment with interest thereon calculated up to 27 February 2012 was $1,307,278.25 being $1,107,728.25 (see paragraph 23(a) above) plus $200,000 (see interim payment in paragraph 5 above). The judgment sum in favour of the Parents with interest calculated up to 30 January 2012 was $1,304,789.30,[7] which meant the Parents Funds failed to beat the Judgment by about $100,000. In my view, in light of the overall quantum of the awards, such difference was genuine, not insignificant, and certainly not di minimus.

(a)  Order 22 rule 23 of the RHC

34.  Order 22 of the RHC  I first turn to consider the Summons in the context of Order 22 of the RHC. According to Hong Kong Civil Procedure 2018,[8]

“…… O.22 provides a self-contained statutory procedure for settlement which is complete in its own right and by itself without the need to have recourse to other measures. …… The characteristics of …… a sanctioned payment under O.22 are as follows: (i) wholly procedural in nature, (ii) not contractual in nature, (iii) not analogous to a settlement made between the parties out of court which does not constitute a contract …… and (iv) matching payments to claims as opposed to identifying a payment as an offer made to the Plaintiff personally ……”

35.  Order 22 rule 23 of the RHC  Order 22 rule 23 of the RHC provides as follows:

“(1) This rule applies where a plaintiff –

(a) fails to obtain a judgment better than the sanctioned payment; or

(b) fails to obtain a judgment that is more advantageous than a defendant’s sanctioned offer.

(2) The court may by order disallow all or part of any interest otherwise payable under section 48 of the Ordinance on the whole or part of any sum of money awarded to the plaintiff for some or all of the period after the latest date on which the payment or offer could have been accepted without requiring the leave of the court.

(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(4) The Court may also order that the defendant is entitled to –

(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and

(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.

(5) Where this rule applies, the Court shall make the orders referred to in paragraphs (2), (3) and (4) unless it considers it unjust to do so.

……

(7) The power of the Court under this rule is in addition to any other power it may have to award or disallow interest.”
(my emphasis)

36.  Doctor’s claim The Doctor prayed in aid Order 22 rule 23 of the RHC to seek (a) costs of defending the Parents Action from 27 February 2012 (and the Doctor Strike Out Costs) on High Court scale and on indemnity basis to be taxed if not agreed, (b) enhanced interest at 10%pa above judgment rate on such costs, and (c) an order that the Parents should not be entitled to interest on their final award of damages after 27 February 2012.

37.  Parents’ stance But Order 22 rule 23(1)(a) of the RHC expressly provides that such rule applies when the plaintiff fails to obtain a “judgment” better than the sanctioned payment. Here, as explained in paragraphs 32-33 above, the Parents being the successful parties were awarded damages/interest under the Judgment that were better than the Parents Funds. So Ms Mok SC submitted the Doctor could not invoke Order 22 rule 23 of the RHC, and the Parents Costs Order Nisi should be confirmed.

38.  Doctor’s stance But Mr Huggins SC, senior counsel for the Doctor, submitted that even though the Parents Funds failed to beat the damages (plus undisputed part of the interest on damages) awarded in favour of the Parents under the Judgment, the legal consequences under Order 22 rule 23 of the RHC should still follow.

39.  Onus of proof  In my view, given the express provision in Order 22 rule 23(1)(a) of the RHC and the discussion in paragraphs 32-33 above, the onus must be on the Doctor to satisfy this court the legal consequences of Order 22 rule 23 of the RHC were applicable.

40.  Doctor’s arguments  Mr Huggins SC’s essential argument was that the award of incurred/future FDH expenses in favour of the Mother under the Judgment should be entirely deducted ($262,405) and the award for incurred medical expenses in favour of the Parents ($43,476) under the Judgment that exceeded the amounts pleaded in the CRSoD and/or RRSoD ($3,000) should be discounted ($40,476) from the judgment sum with interest calculated up to 30 January 2012 ($1,304,789.30), ie $1,304,789.30 - $262,405 - $40,476 = $1,001,908.30, before comparison was to be with the Parents Funds ($1,200,000). On such basis, it was said the Parents failed to obtain relevant awards/interest better than the Parents Funds.

41.  In relation to the claim for FDH expenses, Mr Huggins SC submitted that when the Parents Funds were paid into court on 30 January 2012, there was no pleaded claim for FDH expenses in the Parents Action. Such head of damages was added almost 19 months later by “transfer” from the Bosco Action and amendment of the CRSoD pursuant by my order dated 20 August 2013 (see paragraph 50 of the RRSoD). It was said that had there not been such late addition of a fresh “cause of action” to the Parents Action, the Parents would not have been able to beat the Parents Funds of $1,200,000 (see above paragraph). Mr Huggins SC drew attention to Hong Kong Civil Procedure 2018 as follows:[9]

“Where the defendant makes a payment into court in satisfaction of the plaintiff’s claim which then comprises only one cause of action, and thereafter the plaintiff by amendment adds a further cause or causes of action, the payment in stands as a payment in in respect of the original cause of action, and not in respect of those added by amendment, because the amendment does not affect the nature or character of the payment into court nor the notice given to the plaintiff (Tingay v. Harris & Another [1967] 2 Q.B. 327; [1967] 1 All E.R. 385, CA, decided under the comparable English County Court rules). The payment in must be judged by the circumstances in relation to the number and types of causes of action obtaining at the time of the payment in (ibid., per Russell L.J.)” (my emphasis)

42.  Cause of action In my view, the key issue was whether the inclusion of the claim for incurred/future FDH expenses in the Parents Action amounted to addition of a further “cause of action”. But neither Mr Huggins SC nor Ms Mok SC directly addressed the meaning of “cause of action” or refer to relevant authorities on the subject.

43.  In my view, a cause of action is a combination of material facts (not the pieces of evidence) that would be necessary for the plaintiff to prove, if traversed, that would entitle him to judgment, but the same set of facts may give rise to 2 or more causes of action.[10]

44.  In Letang v Cooper,[11] Diplock LJ said “[a] cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. The learned judge went on to say as follows:[12]

“……. If A., by failing to exercise reasonable care, inflicts direct personal injury upon B., those facts constitute a cause of action on the part of B. against A. for damages in respect of such personal injuries.  …… If A., by failing to exercise reasonable care, inflicts direct personal injuries upon B., it is permissible today to describe this factual situation indifferently, either as a cause of action in negligence or as a cause of action in trespass …… but no procedural consequences flow from the choice of description by the pleader …… They are simply alternative ways of describing the same factual situation …… That factual situation was the plaintiff’s cause of action. It was the cause of action for which the plaintiff claimed damages in respect of the personal injuries which she sustained ….. But that …… does not mean that there are two causes of action [of negligence and trespass to the person]. It merely means that there are two apt descriptions of the same cause of action. It does not cease to be the tort of negligence because it can also be called by another name. An action founded upon it is nonetheless an action for negligence because it can also be called an action for trespass to the person.” (my emphasis)

45.  In Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei,[13] the Court of Appeal considered whether the proposed amendments to the statement of claim introduced a new cause of action for limitation purposes. In that case, the plaintiff’s liquidators sued the defendant (former director, legal advisor and member of its audit committee) on the basis that had she complied with her contractual, common law and fiduciary duties and identified the plaintiff’s true financial position, the plaintiff would not have paid out substantial dividends (Dividends Claim) and tax/bank fees. By the proposed amendments, the plaintiff’s liquidators sought to extend the action to claim for payments for share repurchases (Share Repurchases Claim) and early redemption of convertible notes (Convertible Notes Claim).

46.  Kwan JA at pages 759-760 said as follows:[14]

“38. In identifying a cause of action founded on breach of duty for present purposes, it is also helpful to have regard to the words of May LJ in Steamship Mutual Underwriting Association Ltd v Trollope & Colls (City) Ltd (1986) 33 BLR 77, 98:

In the light of the definitions of a cause of action already referred to [Cooke v Gill; Reed v Brown (1889) 22 QBD 128; and Letang v Cooper], I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon.[15]”

It was held in Moulin Global Eyecare Holdings Ltd that the Share Repurchases Claim and the Convertible Notes Claim were new causes of action for limitation purposes as each of the payments in these claims and the Dividends Claim was made in independent transactions unconnected to each other and involved a distinct breach of duty and a different loss. The facts and circumstances relevant to these claims were necessarily different, and the present case “bears no resemblance to Aldi Stores Ltd v Holmes Buildings Plc or Berezovsky v Abramovich [2011] 1 WLR 2290 ……”[16] (my emphasis)

47.  In Berezovsky v Abramovich,[17] the claimant alleged he had been induced by threats on the part of the defendant to dispose of a beneficial interest held by him in a Russian oil and gas company Sibneft to the defendant or companies controlled by the defendant at a substantial undervalue, and claimed damages for the tort of intimidation. Subsequently, the claimant applied for permission to amend his claim by substituting for references to a “beneficial interest” in Sibneft with references to interests arising under contractual arrangements and adding alternative restitutionary claims in respect of Sibneft.

48.  Longmore LJ at pages 2309-2311 said as follows:[18]

“59. …… A cause of action is that combination of facts which gives rise to a legal right. A cause of action in tort has, as it essential ingredients, a plea of duty, breach of duty and consequent damage to the claimant. If it happens to be the case that an element of one of those essential ingredients is misstated, misdescribed or omitted, it does not mean that a correct statement, description or inclusion is a new cause of action; ……

63. It may indeed be the case that if a claimant, suing in tort, substitutes by amendment a different kind of loss from that originally pleaded, he will be asserting a new cause of action, but that will not always be so. One needs to know more of the facts of the case before one can confidently assert that the claimant is proposing to substitute a new cause of action. If an act of violence constituting a single breach of duty causes the loss of both a cat and a dog, the claimant would not be substituting a new cause of action if he substituted the word “dog” for the word “cat” but would be relying on the original cause of action which had caused loss. He would be substituting a new loss for the old loss but would not be substituting a new cause of action for the original cause of action. If on the other hand the claimant was relying on a second and distinct act of violence causing a loss at some different time from the loss originally caused to the cat, he would no doubt be relying on a different cause of action.

64. Thus the addition or substitution of a new loss is by no means necessarily the addition or substitution of a new cause of action. For a cause of action to arise in tort there must be a breach of duty which causes loss but it is permissible to add or substitute further losses if they all stem from an original breach of duty which has caused some loss. This happens every day in personal injury claims in which a loss of earnings claim may be added to (or substituted for) a claim for loss of suffering, even after the original time bar has expired; there is no question of a new cause of action being added or substituted because the loss all stems from the negligent act of the car driver or other tortfeasor ……” (my emphasis)

Thus, it was held in Berezovsky that the amended pleading either claimed the same loss as had originally been claimed under a different label, or a different kind of loss caused by the same alleged intimidation, and the reframing of the loss as loss of a contractual or other interest instead of a beneficial interest did not raise a new claim.

49.  In the present case, there was only one cause of action by the Parents, ie the Doctor’s breach of duty in respect of the Incident, and the remedy sought under such cause of action was the Parents’ loss and damages as a result thereof. Indeed, the Doctor had admitted liability in respect of the Parents’ sole cause of action, which had merged in the judgment on liability dated 28 April 2011. There was no second or distinct breach of duty, and the claim for FDH expenses and medical expenses all flowed from the Incident and the Doctor’s breach of duty in relation thereto. In the circumstances, the heads of damages in the Parents Action resembled those in Berezovsky rather than those in Moulin Global Eyecare Holdings Ltd.

50.  On such analysis, I now turn to Tingay v Harris[19] cited by Mr Huggins SC and followed in Hong Kong in Ng Pok Leung v Ng Pok Man.[20] In Tingay, the plaintiff architect sued the defendant for his professional fees (£166), and the defendant paid £75 into court and gave notice it was in full satisfaction of the plaintiff’s claim. Subsequently, the plaintiff obtained leave to join the 2^nd defendant in the proceedings and to amend his claim to allege he owned copyright in the plans and to seek damages from the defendants for infringement/conversion in relation to the plans. After the trial, the judge ordered the defendant to pay the plaintiff £75 for his professional fees and £2 for conversion of the plans.

51.  It was held that since the plaintiff had only one cause of action when the defendant paid £75 into court, he could not have been in doubt that the payment into court was in respect of his professional fees, and in respect of such claim the defendant was the successful party and he was entitled to his costs after the date of payment into court. As Davies LJ said at page 335, “I think it was a payment in in respect of the then existing cause of action, and I cannot see that the amendment subsequently made by the plaintiff should be held to redound to the disadvantage of the defendant”. On such rationale, I am unable to see how Tingay took the matter further for the Doctor. Plainly the claim for professional fees and the subsequent claim by amendment on infringement/conversion of the plaintiff’s plans must necessarily be distinct and separate causes of action resembling those in Moulin Global Eyecare Holdings Ltd and not those in Berezovsky.

52.  It was further held in Tingay that although it was found the defendant converted the plaintiff’s plans, the award of £2 damages was di minimis and should not affect the order as to costs. Thus, the plaintiff was entitled to costs up to the date of payment into court on scale 3, and thereafter the defendant was entitled to his costs on scale 4. However, as I have explained in paragraph 33 above, the award of damages and interest calculated up to 30 January 2012 ($1,304,789.30) exceeded the Parents Funds of $1,200,000 by about $100,000 which could not be said to be di minimus.

53.  In Ng Pok Leung, the plaintiff succeeded on his claim at trial, but the 1^st defendant also won part of his counterclaim. In fact, the plaintiff had made a sanctioned offer to accept $300,000 in full and final settlement of his claim, taking into account any counterclaim or set-off and to waive claims for interest and costs. The 1^st defendant argued his successful set-off meant the plaintiff only recovered $125,000, so he had not beaten the sanctioned offer.

54.  It was held that the 1^st defendant’s set-off or counterclaim should not be taken into account when assessing whether the plaintiff had bettered the offer, and that a sanctioned offer indicating it had taken into account any set-off and counterclaim in the action must have referred to the set-off and counterclaim as they stood at the time such offer was made, but not those subsequently added to the action, unless specifically provided for. DDJ M Lam at page 241 referred to Tingay, and reiterated the rationale that “…… where the defendant makes a payment into court in satisfaction of the plaintiff’s claim which then comprises only one cause of action, and thereafter the plaintiff by amendment adds a further cause of action, the payment in stands as a payment in respect of the original cause of action, and not in respect of those added by amendment, because the amendment does not affect the nature or character of the payment into court nor the notice given to the plaintiff” (my emphasis). As explained in paragraph 49 above, this would not take the Doctor’s any further.

55.  I agree with Ms Mok SC that the discussion in Tingay and Ng Pok Leung concerned different causes of action, but there was only 1 cause of action here, ie breach of duty arising from the Incident, and the heads of loss flowed from such breach. Although Seepersad v Persad[21] cited by Ms Mok SC did not directly address the point about sole and separate causes of action, it was clearly supportive of my conclusions above.

56.  FDH expenses Turning to the claim for FDH expenses, paragraphs 20 and 30(a) of the Statement of Damages filed on 28 January 2011 in the Bosco Action averred inter alia that “[from] February 2011 (exact time to be confirmed), a [FDH] will be employed to assist [Bosco’s] mother in looking after [Bosco] and attending to his daily needs ……” Later, paragraphs 34, 43 and 47(a) of the CRSoD filed on 30 September 2011 averred inter alia that “[in] May 2011, a [FDH] was employed to assist the Mother in looking after [Bosco] and attending the household chores ……” By the Bosco Judgment handed down on 20 November 2012, the DHCJ dismissed the claim for FDH expenses in the Bosco Action.

57.  By a letter dated 22 April 2013 from the Doctor’s solicitors to the PI Judge, the Doctor objected to the Parents being given another opportunity to bring a head of loss (ie FDH expenses) in the Parents Action. But by my Decision handed down on 20 August 2013, I ordered the claim for FDH expenses be transferred to the Parents Action (see paragraphs 112-115 and 116(a)(iii) and (d) of such Decision). There was no appeal against such order. Consequently, paragraphs 43 and 47(a) of the CRSoD were deleted and transferred to the Parents Action (see paragraphs 50 and 73(g) of the RRSoD filed on 3 September 2013 that set out the incurred/future damages for this head of claim). The Doctor did not raise further objection to such transfer of the claim for FDH expenses to the Parents Action at the pre-trial review hearing on 25 September 2014 and/or at the 2^nd Trial that commenced on 11 November 2014.

58.  The Doctor, who was all along legally represented, had about 13 months (ie from the filing of the RRSoD to 28 days before the 2^nd Trial) to consider whether to increase his sanctioned payments in light of the transfer of the claim for FDH expenses to the Parents Action, but had chosen not to increase his sanctioned payments, or to make any increased without prejudice or Calderbank offer even though all along he had ready funds for such purpose. The awards (including interest) in favour of Bosco were crystallised by the Bosco Judgment (20 November 2012) and CA Judgment (19 February 2014), which clearly showed there was surplus in the Bosco Funds even after satisfying the judgment in Bosco’s favour. However, the Doctor did not make any application to withdraw such surplus in respect of the Bosco Funds out of court or to transfer such surplus to the Parents Action to stand as further sanctioned payment. In fact, it was only after the Judgment was handed down that the Doctor applied by the Summons for leave to satisfy the awards and undisputed interest in favour of the Parents partly from the Parents Funds and partly from the surplus in the Bosco Funds. On 13 October 2017, I granted an order to such effect (see paragraph 23(a) above). This meant the Doctor kept monies idling in court as surplus that were quite unnecessary for the Bosco Action, but chose not to utilise them for the Parents Action.

59.  Mr Huggins SC argued it would not have been helpful to make further sanctioned payment into court in the Parents Action because such further sanctioned payment would have extended the timeline for the Doctor’s liability for costs under Order 22 rule 23 of the RHC, ie the Doctor would have been liable for the Parents’ costs of the action up to the latest day on which such new sanctioned payment could have been accepted without requiring leave of the court.

60.  I am not persuaded this argument amounted to any sufficient answer. First, if Mr Huggins SC’s proposition was correct and the Doctor’s position could not have been protected by the Order 22 regime,[22] there was nothing to stop the Doctor (had he so wished) from making a without prejudice save as to costs or Calderbank offer by offering topped-up payment for full and final settlement of the whole of the Parents’ claim (inclusive of the FDH expenses and interest thereon) on condition that his position on costs were met/accepted. Order 62 rule 5(1)(d) of the RHC provides that:

“The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account –

……

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22; ……” (my emphasis)

So if Mr Huggins SC were right in that the Doctor could not have protected his position on costs by a further sanctioned payment under Order 22 of the RHC, the Doctor could have made a without prejudice save as to costs and/or Calderbank letter to urge the court to exercise its discretion in its favour, but the Doctor did not do so.[23] I also refer to the discussion in paragraphs 80-84 below that in any event the Summons appeared to be an application under Order 22 rule 23 rather than under Order 62 rule 5 of the RHC.

61.  Secondly, Order 22 rule 2(4) of the RHC provides as follows:

“Nothing in this Order prevents a party from making an offer to settle in whatever way he chooses, but if that offer is not made in accordance with this Order, it does not have the consequences specified in this Order, unless the Court so orders.” (my emphasis)

The Doctor could have made topped-up payment into court in the Parents Action and at the same time qualified his position on costs. Even though such payment would not have amounted to a proper sanctioned payment that met the strict requirements of Order 22 of the RHC, the Doctor could have at the same time invoked the “unless the Court so orders” proviso under Order 22 rule 2(4) of the RHC to forewarn the Parents that if they failed to obtain a judgment better than the increased payment into court, he would ask for the legal consequences of Order 22 rule 23 of the RHC to apply.

62.  In Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd,[24] Poon J (as he then was) dealt with a similar proviso (ie “unless the Court otherwise orders”) under Order 22 rule 20(1) of the RHC (“Otherwise Proviso”), and held that such Otherwise Proviso can be invoked if the defendant discharges the burden of showing exceptional circumstances that justified a departure, and he has given prior warning to the plaintiff that he will apply to invoke the Otherwise Proviso upon acceptance of the sanctioned payment or sanctioned offer. Yim Wai Ling & anor v Yuen Chik Wah & anor[25] was concerned with the “unless the Court so orders” proviso under Order 22 rule 2(4) of the RHC. There was no suggestion that the defendants in that case could not have invoked such proviso, but it was held in the particular circumstances of that case that it would not be just and/or appropriate to exercise discretion to order costs against the plaintiffs on indemnity basis with enhanced interest as the defendant’s behaviour in the conduct of the litigation was unreasonable. But here, the Doctor did not make any topped-up payment into court or invoke the proviso under Order 22 rule 2(4) of the RHC.

63.  Since the Doctor took neither step in paragraphs 60-62 above that was well open to him, I am not persuaded he could now complain the claim for FDH expenses ought to be excluded in considering whether the Judgment in the Parents’ favour had beaten the Parents Funds.

64.  Excess medical expenses  Next, the Parents pleaded that the claim for incurred medical expenses in the CRSoD was $3,000. Mr Huggins SC submitted it was on the basis of much later evidence at the assessment of damages (ie long after the Parents Funds had been paid into court and not accepted) that the Parents were awarded $43,476 for incurred medical expenses. It was said that if one were to deduct the difference of $43,476 - $3,000 = $40,476 from the Parents’ final total award of $1,229,131 (ie $1,229,131 - $40,476 = $1,188,655 being $11,345 less than the Parents Funds of $1,200,000), this itself would result in the Parents failing to meet the amount of the Parents Funds.

65.  Again, I am not persuaded by such contentions. First, as explained in paragraph 33 above, the awards in favour of the Parents with interest thereon calculated up to 30 January 2012 were in the total sum of $1,304,789.30. The so-called “excess” incurred medical expenses of $40,476 and interest thereon from the date of the Incident on 21 August 2009 to 30 January 2012 (see paragraph 64 above, but for convenience ignoring the pro rata deduction from such principal sum as a result of the interim payment of $200,000 on 1 June 2011 – see footnote 3(b) above) were $40,476 plus ($40,476 x 4%pa x 893/365) = $3,961.10, totalling $44,437.10. But even when $44,437.10 is deducted from $1,304,789.30 (ie the awards in favour of the Parents with interest thereon calculated up to 30 January 2012), the net balance ($1,260,352.10) still beat the Parents Funds ($1,200,000).

66.  Secondly, and more importantly, it is necessary to approach this issue with a modicum of common sense. Where a plaintiff suffers psychiatric injury requiring continued psychiatric/psychological treatment, such ongoing treatment will continue irrespective of the progress or outcome of the litigation against the defendant. The plaintiff’s psychiatric condition and treatment will not remain static for nice presentation of pleadings and/or evidence. Thus, the initial pleadings as to damages of such a plaintiff in his personal injuries action against the tortfeasor filed shortly after the subject incident may aver a smaller amount of incurred medical expenses and a greater claim for future medical expenses. But in line with the above practical understanding, a plaintiff in personal injuries action is always given an opportunity to revise/update his pleadings in damages after close of discovery of documents, compilation of expert evidence and completion of witness statements, and with progression of time it will be natural/logical for incurred medical expenses to increase if there is need for the plaintiff to receive continued treatment, ie what used to be part of the future medical expenses claimed in the original statement of damages is now claimed as incurred expenses of medical treatment received in the revised statement of damages. But the amount of such incurred medical expenses in the revised statement of damages would not be exactly the same as the relevant portion of future medical expenses in the original statement of damages. After all, future medical expenses are unliquidated general damages, and the purpose of particulars in respect of such claim was to properly put the defendant on notice of the nature/extent of the loss rather than to straitjacket the plaintiff on the exact sum that was eventually incurred.

67.  Even after such a plaintiff files the revised statement of damages, there may be still further increase of incurred medical expenses up to the trial if there is need to receive continued treatment. It must be remembered that damages are assessed down to the trial, so special damages would include incurred medical expenses up to the trial. But as explained in the above paragraph, it is nothing more than conversion of anticipation (ie what used to part of the claim for future medical expenses) to reality (ie a crystallised claim for incurred medical expenses) given the passage of time, but it does not really alter the case of such a plaintiff because he has always claimed for both incurred and future medical expenses.

68.  The above rationale explained why at the pre-trial review hearing for the 1^st Trial on 14 September 2012, the DHCJ ordered that “[any] changes or up-dating to the Revised Statement of Damages should be done by way of a letter to the [Doctor]”. It also explained why in paragraph 119 of my Decision handed down on 20 August 2013 this court also said “[if] it is merely a matter of updating special loss incurred to date, one expects the ongoing obligation of discovery and eventual production of such discovered invoices and receipts would take care of the documentary evidence”. Thus, it is common practice in personal injury litigation to update special damages by providing updated lists with supporting documents close to trial for consideration and, where appropriate, agreement by the defendant rather than to apply for formal amendment of the revised statement of damages. Such approach, however, would not be apt for substantive amendments that put the plaintiff’s case on quantum on a different tangent or that would take the defendant by surprise, which is not the situation under discussion.

69.  Consequently, the Parents provided to the Doctor updated lists of Parents’ medical expenses for the purpose of the 2^nd Trial.[26] At the 2^nd Trial, the Doctor did not request for formal amendment of the RRSoD to reflect such updated incurred medical expenses, and for the reasons explained above it would have been quite unnecessary. Such updated incurred medical expenses were nothing more than the necessary result of the passage of time and in the meantime the Parents received ongoing treatment, which transformed what used to be part of the Parents’ claim for general damages for future loss into incurred liquidated damages for special loss. In my view, they were part and parcel of the same cause of action, and there was no justifiable basis for excluding such incurred medical expenses in considering whether the Parents obtained a judgment that was better than the Parents Funds.

70.  In my view, the Judgment in favour of the Parents was plainly better than the Parents Funds, which failed to beat the awards (including relevant interest) under the Judgment. In the circumstances, the legal consequences under Order 22 rule 23 of the RHC had no application.

(b)  Inherent jurisdiction

71.  The Doctor also invoked “inherent jurisdiction”, but I am unable to see how the inherent jurisdiction of the court could assist when Order 22 of the RHC was a self-contained code for specified legal consequences without need to have recourse to other measures (see paragraph 35 above and Etratech Asia Pacific Ltd at p 1189), and when Order 62 of the RHC (if relevant) contained guidance/provisions in the exercise of discretion on costs.

(c)  Order 62 rule 5 of the RHC

72.  Doctor’s stance Mr Huggins SC submitted that even if the legal consequences in Order 22 rule 23 of the RHC could not be triggered, this court as a matter of discretion under Order 62 rule 5 of the RHC should still order:

(a)  the Doctor to have his costs of defending the Parents Action on party and party basis from 27 February 2012 on the basis that the Parents failed to accept the Parents Funds and instead (a) conducted the Parents Action in a manifestly unreasonable manner in a number of material respects,[27] and (b) pursued wildly extravagant and exaggerated claims[28] that caused both the Parents and Doctor to incur further costs that were wholly disproportionate to the value of the Parents’ claim; or

(b)  alternatively, the Parents should not be entitled to any costs after 27 February 2012 nor any interest on their awards of damages after that date having regard to the considerations set out in paragraph 102 below taken either singly or in combination.

Mr Huggins SC submitted that in any event the Parents Costs Order Nisi should be varied by way of a substantial reduction to take into account the alternative considerations in (a) or (b) above as the court would accept as relevant and material. Further alternatively, paragraph 91 of the OT 1^st Aff asked for “any other Order as to costs and/or interest which the Court sees fit ……”

73.  I note the Doctor did not ask for his costs of the Action after 27 February 2012 on indemnity basis. Ms Mok SC submitted it was unsurprising since indemnity costs would only be granted to a successful party if the conduct of the losing party was very unreasonable (eg bringing or defending proceedings which should never have been brought or defended but nevertheless unreasonably and unjustifiably persisted),[29] and she noted Mr Huggins SC did not refer to any authority for awarding indemnity costs to the losing party against the successful party.

74.  Interest  I note at the outset that I am unable to see how I can alter the interest granted on the damages I awarded in the Judgment when I have found the legal consequences of Order 22 rule 23 of the RHC were not applicable. Since the legal consequences of Order 22 rule 23 of the RHC did not apply, the award of interest under the Judgment was a final order. There was no basis either under Order 62 of the RHC (which concerned costs) or inherent jurisdiction (even if it is applicable which I disagree) to disallow any part of the interest awarded under the final Judgment.

75.  Order 62 of the RHC  Order 62 rule 3(1)-(2) of the RHC provides as follows:

“(1) Subject to the provisions of this Order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.

(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

76.  Order 62 rule 5(1)(aa), (e) and (f) and rule 5(2) of the RHC provide that the court in exercising its discretion as to costs shall take into account the following matters:

(a)  the underlying objectives set out in Order 1A rule 1 of the RHC;

(b)  the conduct of all the parties, which would include (i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, (ii) the manner in which a party has pursued or defended his case or a particular allegation or issue, (iii) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim, and (iv) conduct before, as well as during the proceedings; and

(c)  whether a party has succeeded on part of his case, even if he has not been wholly successful.

77.  Under Order 62 rule 7(1) of the RHC, it is only where a successful party raises issues or makes allegations improperly or unnecessarily that he may be ordered to pay a part of the other party’s costs.

78.  In Wang Din Shin v Nina Kung alias Nina T H Wang, [30] Yuen JA summarised the 4 Elgindata[31] principles enunciated by Nourse LJ that had bearing on award of costs as follows:

(a)  costs are in the discretion of the court (Order 62 rule 2(4) RHC);

(b)  costs should follow the event, except where it appears to the court that in the circumstances of the case some other order should be made (Order 62 rule 3(2) of the RHC);

(c)  the general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or part of his costs; and

(d)  where the successful party raises issues or makes allegations “improperly or unreasonably” (in Hong Kong, “improperly or unnecessarily”), the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs (Order 62 rule 7(1) RHC).

79.  Onus of proof The Parents Costs Order Nisi reflected the principle in Order 62 rule 3(2) of the RHC that costs are to follow event. Bokhary PJ in Mariner International Hotels Ltd v Atlas Ltd (No 2)[32] held that a party seeking to displace the general rule that costs should follow event naturally bore the burden of showing that the circumstances justified such exceptional course. In my view, the onus of proof is the same post-CJR as it was pre-CJR. Here, such onus of proof fell on the Doctor.

80.  Preliminary points  I start with the following preliminary points taken by Ms Mok SC:

(a)  The Summons was taken out under “RHC O.22 r.23, O.22A r 1 & Inherent Jurisdiction” and not under Order 62 of the RHC. It was said that since the Doctor did not rely on Order 62 rule 5 of RHC, this court should not consider his application for costs after 27 February 2012 once satisfied the Doctor did not fall within Order 22 of the RHC.

(b)  Even in the body of the Summons, there was no application for the alternative relief for the Parents to pay the Doctor his costs of the Parents Action as from 27 February 2012 on party and party basis.

81.  In my view, there was some force in such preliminary points. First, a careful reading of the Summons showed it was an application premised on Order 22 of the RHC (and on the inherent jurisdiction of the court), especially given the Doctor’s choice of 27 February 2012 (ie 28 days after the 2^nd Sanctioned Payment and the deadline for the Parents to accept the Parents Funds under Order 22 of the RHC without leave) as the watershed date, ie the Doctor agreed for the Parents to have their costs up to that date and asked for his costs after such date. If the Doctor sought costs on the issue-based approach under the Elgindata principles, it made little sense to adopt such cut-off date for determining issue-specific costs. It appeared to me the Doctor’s reliance on Order 62 rule 5 of the RHC was a mere afterthought not envisaged in the Summons.

82.  Secondly, it was the Doctor who applied to vary the Parents Costs Order Nisi. Not only did he carry the onus of proof as explained in paragraph 79 above, it was incumbent on him make clear in the Summons what specific costs order he wished to seek so the Parents would know what they had to meet, and the court to know what precisely he wished to seek.

83.  In Schindler Lifts (Hong Kong) Limited v Ocean Joy Investments Limited, Ma JA (as he then was) considered it inappropriate to apply for variation of costs order nisi by letter to the court, and held that such application should have been made by summons.[33] In PCCW-HKT Telephone Limited v Telecommunications Authority,[34] Ma CJHC (as he then was) reiterated it was unsatisfactory (and incorrect) to seek variation of costs order nisi by letter to the court, and “[the] reason for [the requirement to do so by summons] is to enable the other side and the Court to understand exactly the nature and extent of what is being asked for. Otherwise, there is a danger that it becomes unclear just what is being sought from the Court, thereby allowing parties to ask for relief in a haphazard manner. ……” Plainly, the courts are anxious for an applicant seeking to vary a costs order nisi to “exactly” frame the costs order absolute he is asking for and to persuade the court to accept the proposed “specific” costs order, and it was not for the court or the other party to speculate or formulate such costs order for the applicant.

84.  Given the burden was on the Doctor to displace the general rule that costs are to follow event and to make clear what costs order absolute he wished to seek, it was not for this court on its own motion to frame the costs order absolute for the Doctor. I tend to agree with Ms Mok SC that it was not open for the Doctor to ask for variation of the Parents Costs Order Nisi by “any other Order as to costs …… which the Court sees fit ……” Further, it was also difficult to see how the Doctor could by the Summons ask for his costs of the action after 27 February 2012 (a) on party and party basis (b) pursuant to Order 62 rule 5 of the RHC. I am not persuaded I should allow variation of the Parents Costs Order Nisi in the terms sought by Mr Huggins SC in paragraph 72(a)-(b) above.

85.  But in case I am wrong and it is open for the Doctor to seek to vary the Parents Costs Order Nisi to displace the general rule that costs are to follow event with a cost order absolute pursuant to Order 62 of the RHC that as from 27 February 2012 the Parents (a) shall be deprived of their costs of the Parents Action and (b) shall pay the Doctor’s costs of the Parents Action on party and party basis, I shall go on consider Mr Huggins SC’s propositions.

86.  Costs: displacing the general rule  Costs is a matter of discretion of the court. The starting point is that costs are to follow event. Hong Kong Civil Procedure 2018 states as follows:[35]

“A successful plaintiff who recovers more than nominal damages against the defendant should in normal circumstances have an order for costs against the defendant. ……”

Such starting point does not cease to apply simply because the successful party raises issues or make allegations on which he fails although in appropriate cases he may be deprived of any costs increased significantly because of failing such issues. As explained above, the burden is on the losing party to show there is good reason to depart from the general rule and to deprive a successful party of costs of his failure on a discrete issue which has significantly increased the costs. Hong Kong Civil Procedure 2018[36] states that “…… in Seepersad v. Persad [2004] U.K.P.C. 19, Lord Carswell held that in order to justify a reduction in costs to the successful party on the basis of an issue unsuccessfully litigated, that issue must be something so distinct and separate in itself that the decision of it constitutes an “event”.” But even though Lam J (as he then was) cited Seepersad in Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No 4),[37] the Court of Appeal in Chan Shun Kei trading as Chan Shun Kei Construction Works v Hong Kong Construction (Hong Kong) Limited (formerly known as Hong Kong Construction (Holdings) Limited) held “that is a too narrow interpretation of the issue based approach after the introduction of [the CJR]. Order 62 Rule 5(2)(a) and (b) particularly directs the court to consider the conduct of the parties including whether it was reasonable for him to raise, pursue or contest a particular allegation or issue and the manner in which a particular allegation or issue was pursued. We do not think that the “issue or allegation” in such context should be so narrowly confined. Such narrow construction is not in line with Order 1A Rule 1”.[38]

87.  Mr Huggins SC referred to Pfeiffer GmbH v Cheung Hay Kit trading as Sun Wai Construction.[39] In that case, the Court of Appeal referred to the amendments to Order 62 rules 3(2), 5 and 7 of the RHC brought about by the CJR, and noted Woolf MR in AEI Rediffusion Music Ltd v Phonographic Performance Ltd[40] commented on their English equivalents, which comments had been adopted by Cheung JA in Wong Kam Tong v Tin Shing Court, Yuen Long (IO) (No 2):[41]

“…… while the “follow the event principle” will still play a significant role in Hong Kong, it will nonetheless only be a starting point from which the Court can depart, the rationale being that a mechanistic adoption of the “follow the event principle” may result in parties incurring unnecessary costs in civil litigation. …… In our view O.62 r.7 enables the Court to address the costs issue when there are improper or unnecessary acts or omissions but it does not confine the Court’s power only to such situations.”

Lord Woolf MR at pp 1522-1523 in AEI Rediffusion Music Ltd observed that “[the] most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. ……” (my emphasis)

88.  Kwan JA at paragraphs 20-21 in Pfeiffer GmbH reiterated that although the general rule that costs will follow event still played a significant part, it is but a starting point from which the court is more ready to depart, mindful that too robust an application of the general rule encourages litigants to increase the costs of litigation since it discourages them from being selective as to the points they take. And it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs of a particular issue on which he has fielded. Kwan JA also referred to Order 62 rule 5(1)(e) of the RHC and the elaboration of “conduct” for such purpose in Order 62 rule 5(2) of the RHC.

89.  But Hong Kong Civil Procedure 2018 states as follows:[42]

“Although reference has been made to Lord Woolf MR’s suggestion in A.E.I. Rediffusion Music Ltd v. Phonographic Performance Ltd [1991] 1 WLR 1507 that courts should be more ready to make separate orders reflecting the outcome of different issues, the courts of Hong Kong have declined to adopt this approach on a number of occasions ……

In making a proper order for costs the judge must exercise his discretion, doing justice in all the circumstances of the case, but bearing in mind the underlying principle that the winner, whoever may be described as the winner, is in general entitled to be paid his costs ……”

90.  In Kwan Siu Wa Becky v Cathay Pacific Airways Ltd,[43] Tang Ag CJHC (as he then was) referred to the Elgindata principles, and took note of what Lam J (as he then was) said in Hong Kong Kam Lan Koon Ltd.[44] The learned judge bore in mind Lord Carswell’s observations in Seepersad, and said at pp 166-167 as follows:

“14. One therefore starts with the premise that a successful party is prima facie entitled to the full costs of the action. The burden is on the losing party to show that there is good reason to depart from the general rule. The exercise is a matter of discretion. It would be wrong to read Elgindata as laying down that as a rule, the court must (instead of may) deprive a successful litigant of costs for his failure on a discrete issue which caused a significant increase in costs. The court has to exercise its discretion to achieve a just result having regard to the circumstances of the case.”

91.  Costs: in favour of losing party  It must be remembered that Pfeiffer GmbH concerned a costs order by which the successful plaintiff was deprived of half of its costs of the action. It is rather different from the present situation when the Doctor went further than seeking to deprive the Parents of their costs of the Parents Action after 27 February 2012 by asking the Parents to pay his costs of the Parents Action for such period.

92.  Hong Kong Civil Procedure 2018 states as follows:

“A successful plaintiff who recovers more than nominal damages against the defendant should in normal circumstances have an order for costs against the defendant. It is an error in principle for a judge to reflect disapproval of the way in which such a plaintiff has conducted the litigation by ordering him to pay the defendant’s costs ……”

A successful party to an action should not be ordered to pay any part of the costs of the hearing simply because he has failed to prove all of the allegations made. The successful party should not pay any of the costs unless he has acted improperly or unreasonably in raising issues ……” (Vol 1 para 62/3/4 at pp 1213)

93.  In Wang Din Shin, Yuen JA at paragraph 40 said as follows:

“The judge had expressly stated his reliance on these [Elgindata] principles.  These principles were discussed by Lord Woolf M.R. in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507, a judgment delivered before the Civil Procedure Rules took effect.  Lord Woolf stated that the position (even prior to the new Rules coming into effect) was that the courts have become more ready to depart from the ‘follow the event principle’ as too robust an application of that principle encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take.  However, I fear I may have overstated the extent of Lord Woolf’s preparedness to depart from the Elgindata principles when in Thomas Vincent v South China Morning Post Publishers Ltd (No. 2) [2004] 3 HKLRD 471, I suggested that where the successful party raises issues on which he fails, he may not only be deprived of his costs but may also be ordered to pay the other party’s costs, even though those issues may not have been raised improperly or unreasonably (§15).  Under Order 62 rule 7(1) RHC, it is only where a successful party raises issues or makes allegations improperly or unnecessarily that he may be ordered to pay a part of the other party’s costs.”

94.  In Wong Ka Ming v Ng Yin King & ors,[45] Master Ko referred to Order 62 rule 5 of the RHC and the aforesaid observations of the Court of Appeal in Kwan Siu Wa Becky, and also the observations by Evans LJ in Charm Marine Incorporated v Elbourne Mitchell as follows:[46]

“…… Should the established rule be qualified, therefore, by reserving to the court some power to order the plaintiff to pay the defendant’s costs after the date of payment in, where the payment in came close to matching the amount of the award, even though it fell short of doing so? I think not, essentially for four reasons:

(1)   If the plaintiff recovers more than was available to him, then he has succeeded on what became the lis or issue at the trial, as described by Somervell LJ. However small the margin, if he does recover more he cannot be said to have failed.

(2)   The advantages of a clear-cut rule outweigh, in my judgment, the consequence of introducing a discretionary element which could lead to uncertainty and give scope for prolonged post-judgment debate.

(3)   ……

(4)   A clear-cut rule means that the defendant must not underestimate the plaintiff’s chances of success, by however small an amount, just as the plaintiff must not be over-optimistic about them. This is consistent, in my view, with the policy considerations described by Denning LJ in Findlay v Railway Executive [1950] 2 All E.R. 696, [1950] WN 570 at 974 of the former report.

……”

95.  In Chan Shun Kei trading as Chan Shun Kei Construction Works, Lam VP said as follows:

“36. We accept there are cases where over and above being deprived of his own costs, a successful Plaintiff could be ordered to pay a specific portion of the costs of the Defendant.  However, there is difference in principle between depriving a successful plaintiff some of his costs due to the outcome on some issues and ordering such plaintiff to pay the costs of the defendant on such issues.  As Longmore LJ observed, in cases of this nature, the most important thing is to identify the party who has to pay money to the other party.  It is only appropriate to order a successful plaintiff to pay the costs of the unsuccessful defendant where the plaintiff has to come to court to get the relief in a case where one can say the successful party has raised issues or made allegations improperly or unreasonably, viz a case falling within principle (iv) in the often cited judgment of Nourse LJ in In re Elgindata (No 2) [1992] 1 WLR 1207 at 1214. 

37. In this respect, at least in a case like the present one where it is essentially a monetary claim arising from cross-accounting in a commercial transaction, the introduction of Order 62 Rule 5(2) under the Civil Justice Reform does not modify this principle.  It is noteworthy that observation of Lord Woolf in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1991] WLR 1507 at p.1523 on the relaxation of In re Elgindata (No 2) was related to the deprivation of a successful plaintiff of costs of an issue on which he had failed.  None of the Hong Kong post CJR cases cited to us suggests that Elgindata principle (iv) is no longer good law in Hong Kong.  There is at least one first instance authority supporting the proposition that principle (iv) has survived the CJR: see Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 16 April 2010 at paragraphs 44 to 47.”

96.  Costs: summary In summary, the starting point is that costs should follow event, and a party seeking departure from that bears the burden of showing a departure is justified or, to put it in another way, it would be unjust to follow the normal rule. The court has a discretion to deprive a successful party of costs incurred on failed issues if the issues in question caused a significant increase in the length/costs of the proceedings. But the court must take into account the realities of the case and the extent to which a party has succeeded, and it would be inappropriate to simply look at the number of issues won and lost. The court can only order a successful party to pay the costs of the unsuccessful party if the former raised some issues or made allegations improperly or unnecessarily. How the discretion is to be exercised in each case depends very much on the particular circumstances of the case.

97.  Acceptance of Parents Funds?  Mr Huggins SC submitted the Parents should have accepted the Parents Funds and should not have incurred disproportionate legal costs to pursue a judgment for damages that exceeded the Parents Funds by a minor amount, and in failing to do so the court should (a) deprive or significantly reduce the Parents’ costs of the Parents Action after 27 February 2012 and (b) order the Parents to pay the Doctor’s costs of the Parents Action after such date. I disagree.

98.  As explained in paragraph 33 above, the difference between the amount of the Parents Funds (inclusive of interest) and the ultimate awards under the Judgment with interest calculated up to 30 January 2012 was about $100,000, which could not be said to be a paltry or di minimus sum. In my view, it is inappropriate to hang the Damoclean sword of depriving a successful party of some of his costs (and further making him pay some of the costs of the unsuccessful party) over his head to thwart his just entitlement to damages. As said in Charm Marine Incorporated, if the plaintiff recovers more than is available to him by however small margin, then he has succeeded on the lis at the trial and cannot be said to have failed, and such clear-cut rule means the defendant must not underestimate the plaintiff’s chances of success by however small an amount, just as the plaintiff must not be over-optimistic about them. As Master Ko put it rather bluntly at paragraph 17 in Wong Ka Ming, the Doctor could have added a bit more to his 2^nd Sanctioned Payment, and the result might be different with the costs consequences under Order 22 rule 23 of the RHC (see paragraph 94 above).

99.  Transfer of claims to the Parents Action  By the PTR Decision handed down by this court on 20 August 2013, leave was granted for transfer of the Father Care Claim and also the claim for FDH expenses from the Bosco Action to the Parents Action. Subsequently on 3 September 2013, the Parents filed the RRSoD to such effect. Mr Huggins SC submitted the Parents should have accepted the Parents Funds, and in failing to do so it was wholly unfair for the Parents to have all of their costs between 27 February 2012 and 20 August 2013 when an appropriate order would be for each party to bear their own costs for such period.

100.  Such submission, which asked that the Parents be deprived of their costs of the Parents Action after 27 February 2012, was different from the costs order absolute proposed in the Summons as it did not require the Parents to pay the Doctor’s costs of the Parents Action after 27 February 2012. The Doctor did not explain how the reasons put forward in the above paragraph would support deprivation of the Parents’ costs in contra-distinction to payment of the Doctor’s costs. But in any event, I am unable to accept the Doctor’s arguments:

(a)   I cannot see how the Doctor could complain about the Parents’ conduct in relation to the transfer of the Father Care Claim and the claim for FDH expenses from the Bosco Action to the Parents Action when the DHCJ by the Bosco Judgment ordered the Father Care Claim to be considered in the context of the Parents Action, and this court’s PTR Decision granted leave for transfer of the Father Care Claim and also the claim for FDH expenses from the Bosco Action to the Parents Action (see paragraph 8 above). It was only pursuant to the CA Judgment that ordered the Father Care Claim in the Bosco Action to be heard with the Father’s claim in the Parents Action that on the 1^st day of the 2^nd Trial I granted leave to reinstate the pleaded claim/answer for the Father Care Claim in the Bosco Action (not Parents Action) on the basis that the Father would not claim for loss of earnings on his own account over the same period in the Parents Action (see paragraph 9 above). Further, at the end of the day, this court by the Judgment upheld both the Father Care Claim and claim for FDH expenses, and granted awards under both heads of claim. In my view, the Parents could not be faulted for the aforesaid transfers of the Father Care Claim and claim for FDH expenses when there was no appeal against leave granted for such transfers, and when Bosco/Mother succeeded on those heads of claim.

(b)   For reasons explained in paragraphs 97-98 above, the Parents could not be faulted for not accepting the Parents Funds.

101.  CRSoD / RRSoD The Doctor complained the amount the Parents recovered under the Judgment was less than their claim under the CRSOD filed on 30 September 2011 and the RRSOD filed on 3 September 2013 (see footnote 28 above). Mr Huggins SC submitted it would be unjust to the Doctor for the Parents to have the whole of their costs after 27 February 2012. But given my conclusion that the legal consequences under the Order 22 rule 23 of the RHC did not apply (see paragraph 70 above), and that P could not be faulted for not accepting the Parents Funds, I am unable to see any substance in this complaint. After all, the Parents had been sanctioned for recovering a smaller sum by having their costs taxed on District Court scale. I will deal with the issue of conduct below, but suffice to say here I am not persuaded the matter of conduct took the matter any further.

102.  Conduct  Turning to the Doctor’s proposition that not only should the Parents be deprived of their costs of the action after 27 February 2012 but the Doctor should also get his costs of the action for that period, Mr Huggins SC submitted there was broadly speaking “unreasonable” conduct in relation to the Parents’ claim on the following 2 matters:

(a)   before the Actions were deconsolidated – (i) failing to comply with obligations in relation to discovery of documents which the DHCJ considered D was entitled,[47] (ii) application by the Parents to vacate the 1^st Trial and appealing against the court’s discretion to refuse the same,[48] (iii) very late application for Legal Aid Certificate to cover the 1^st Trial and Parent’s counsel at the pre-trial review not having instructions to appear at the 1^st Trial,[49] (iv) discharge of the Parents’ solicitors during the 1^st Trial upon the advice of the Parents’ solicitors on 9 November 2012 causing adjournment/delay of Parents’ claim for 2 years,[50] (v) failing to send draft indices of the trial bundles prior to the commencement of the 1^st Trial and poor preparation for trial;[51] and

(b)   after the Actions were deconsolidated – (i) continuing to claim Father’s loss of earnings in both Actions,[52] (ii) difficulties with documentation, eg changes to trial bundles, revisions to schedules of damages, and refusal to clarify issues relating to financial records,[53] (iii) wasted costs in relation to proposed witness,[54] (iv) Father’s evasive and confusing evidence,[55] (v) unsuccessful attempt by Parents to add 90 pages of irrelevant documents,[56] and (vi) Parents’ unsuccessful attempts to bolster their claims in oral evidence.[57]

103.  Ms Mok SC submitted the Parents’ claims were neither extravagant nor exaggerated. I note the 2^nd Trial was for assessment of damages pursuant to the Doctor’s admission of liability and further admission that the Parents suffered psychiatric injury as a result of the Incident. In the Judgment, I accepted there was a core element of truthfulness in the Parents’ evidence, especially as to their emotional sufferings during and shortly after the Incident. Thus, even though I granted awards for PSLA less than the amount claimed by the Parents, the awards were significantly more than what the Doctor proposed in the CRSoD and RRSoD. Plainly, the Parents had to bring the matter to the 2^nd Trial in order to secure such awards that bettered the amounts proposed in the Doctor’s Answer to the CRSoD and/or Answer to the RRSoD.

104.  Even though I had some reservations over the reliability of the Father’s evidence as to his work/earnings, and the Mother had embroidered some aspects of her evidence as to her work/earnings, I had no doubt the Incident had material impact on their work and earnings. After all, I granted awards for the Father Care Claim and for the Mother’s loss of earnings. Indeed, despite my reservations, I did not find in the Judgment that the Parents acted improperly/unnecessarily or in bad faith. Indeed, I accepted the Mother’s alleged pre-Incident earnings of $2,000 - $3,000/month (consistent with her statement evidence – see paragraphs 20-21 of the Judgment), and also the lower range of her alleged post-Incident earnings at $6,000/month (see paragraphs 22 and 25 of the Judgment), and awarded a sum of $50,000 for her loss of earning capacity (see paragraph 222 of the Judgment). In the end, even though the Mother secured awards in relation to loss of earnings and loss of earning capacity in amounts less than she claimed, such awards were better than the proposed sums in the Doctor’s Answer to the CRSoD and Answer to RRSoD. Plainly, the Mother had to bring her claim to the 2^nd Trial to secure such awards.

105.  As for the Father, notwithstanding my reservations about the quality of his evidence as to his pre-Incident work/earnings, by the Judgment I found he earned $15,000/month prior to the Incident (see paragraph 50 of the Judgment). Ms Mok SC submitted it was not unusual in a personal injury case for a court to adopt a lower range when there was no documentary evidence. I also bear in mind I accepted the Father had to practically give up work to look after Bosco in light of the Mother’s condition. I found it was reasonable for him to give up work at Hom and to dabble intermittently as a part-time hairstylist at Co-Cut, and although I found he earned more at Co-Cut than he claimed, I did accept he lost a significant portion of his own customers and his business was necessarily reduced (see paragraphs 83-85 and 90-96 of the Judgment). I further accepted that despite “…… doubt as to the Father’s veracity as to his assets/earnings, his earnings as found were still significantly less than what he earned as a full-time hairstylist in Central, he had little savings to speak of, he lived partially on debt (which increased after the Incident), and he had to support a family of 4 (and at times a FDH too)” (see paragraph 120 of the Judgment). I also recognised the Father gave up his work at Co-Cut to work as an Attendant at Wilson for the laudable reason of putting his family’s needs for stable income ahead of his own job satisfaction, and he still had psychological issues even though I found that notionally he could have returned to full-time hairstylist work (see paragraphs 106, 111-113 and 244 of the Judgment). Thus, the Father advanced his case on future loss of earnings based on what actually happened as found by the court (ie he had given up the hairstylist work that he preferred to settle for less satisfactory work as an Attendant at Wilson for his family), and he failed on such claims because the court found such reality could not overcome the need to establish causation, ie he was so psychologically impaired that he could not have worked as a full-time hairstylist in Central or elsewhere (see paragraphs 237-245 of the Judgment).

106.  Ms Mok SC referred me to Wong Ka Ming in which Master Ko ordered costs to follow event when the defendant’s sanctioned payment of $250,000 was $16,066 less than the award (plus interest) of $266,066 and when the plaintiff’s claim in the sum of $2,500,000 was 10 times more than the eventual judgment. In that case, “[the] bulk of the difference is accounted for by the failure on the part of the Plaintiff to establish any loss of earnings after his sick leave”. The learned master noted inter alia that (a) the plaintiff attempted to settle by his sanctioned offers, (b) the 2^nd defendant did not succeed on all other issues which required adjudication besides loss of future earnings, (c) there was no finding that the exaggeration was intended or fraudulent, and (d) other than the claim for future loss of earnings the plaintiff would have to prove his case anyway (eg for the purpose of assessing damages for PSLA).

107.  Whilst I accept each case turns on its own facts, it was also correct to say here that other than employment-related matters, eg loss of earnings, loss of congenial employment and loss of earning capacity, the Parents succeeded in bettering the Doctor’s pleaded case on other heads of claim. And even for the Mother’s employment-related matters, her recovery under the Judgment was better than suggested in the Answer to the CRSoD and/or Answer to the RRSoD. Obviously, the Parents had to bring these claims to the 2^nd Trial to secure the awards under the Judgment. I too did not find the Parents’ claims intentionally or fraudulently exaggerated even though the Father could have been more forthcoming.

108.  But more importantly, the Doctor’s use of 27 February 2012 as the watershed date was not understood in the present context. Since I have found the Parents did not act unreasonably in declining to accept the Parents Funds, and since the Doctor’s complaints as to the alleged poor quality of the evidence as to the Parents’ work/earnings were issue‑based rather than date-based, it was not understood why, on the Doctor’s case, the Parents would be entitled to costs of the Action (including these reduced/failed claims) before 27 February 2012, but would be deprived of their costs and would also have to pay the Doctor’s costs on the entirety of their claims (including those claims which the Parents had to bring to the 2^nd Trial to secure awards that bettered the amounts suggested in the Answer to the CRSoD and/or the Answer to the RRSoD) after such date. If an adverse view were to be taken against the Parents’ claim/conduct on particular issues (as discussed by Kwan JA in Pfeiffer GmbH at paragraphs 87-88 and footnote 39 above), the Doctor did not explain why such adverse view would spring up on 27 February 2012 and not on any other date. This added weight to the view that the Doctor’s reliance on Order 62 rule 5 of the RHC was an afterthought that fit like a square peg in the round hole of the Summons.

109.  Ms Mok SC next submitted the Doctor’s complaints about the Parents’ conduct set out in paragraph 102 above were factually wrong, misconceived and did not amount to any good reason for this court to depart from the general rule of costs are to follow event. Ms Mok SC submitted that the Kwan 1^st Aff demonstrated these complaints by the Doctor were untrue, but in any event those matters in paragraph 102(a) above were minor matters which could not justify departure from the general rule.

110.  A number of matters are of note. First, one must distinguish between costs of discrete applications and costs of the action of which I am now concerned. For the matter referred to in paragraph 102(a)(ii) above, it concerned a discrete application, ie the Parents’ application to vacate the 1^st Trial. As regards the matter in paragraph 102(a)(i) above, the Parents’ alleged failure to comply with discovery obligations culminated in the discrete application for specific discovery of documents. The DHCJ hearing these discrete applications was seized with the issue of costs of and occasioned by such applications. If the DHCJ made a relevant costs order, the Doctor could not revisit the issue of costs by the Summons. If the DHCJ reserved the issue of costs, then such costs would be a matter for the PI Judge as he sees fit (see paragraph 24 above). If the DHCJ did not make any order as to costs in respect of such discrete applications, then there would simply be no order as to costs of and occasioned by those applications which could not be re-opened now. In any event, I cannot see how I can deal with costs of the appeal against the DHCJ’s refusal to vacate the 1^st Trial.

111.  Secondly, it is important to distinguish between inter partes costs of the Parents Action (which the Summons put in issue) and the Parents’ own costs. As regards the alleged late application for Legal Aid Certificate under paragraph 102(a)(iii) above, such application (even if made late) was a matter between the Director of Legal Aid and the Parents and not between the Parents and Doctor. The Parents were represented by assigned counsel when the 1^st Trial commenced even though he was not the counsel who appeared at the pre-trial review. The Parents’ own legal representation by counsel was a matter between them and the DLA, and it was not for a matter for the Doctor as defendant. Even if the Parents’ change of counsel caused any adjournment of the 1^st Trial or some other inter partes event that resulted in wastage of costs, it would be incumbent upon the Doctor to apply to the DHCJ presiding over the 1^st Trial for wasted costs thrown away by the adjournment or other event. As explained in the above paragraph, any cost order granted for such purpose meant such costs issue could not be revisited now; an order that reserved such costs would require the PI Judge to deal with such costs as he sees fit (see paragraph 24 above); and if no order was made as to such costs then seized by the DHCJ, then neither party could seek an order in respect of such costs now.

112.  This also applied mutatis mutandis to the matter in paragraph 102(a)(iv) above. The alleged discharge of the Parents’ assigned solicitors during the 1^st Trial was a matter between the Director of Legal Aid and the Parents and not between the Parents and Doctor. If, as alleged, such discharge led to costs thrown away by adjournment of the Parents Action in the course of the 1^st Trial, then it was incumbent on the Doctor to apply to the DHCJ for costs wasted and/or thrown away by such adjournment. The 3 possible scenarios in relation to such costs as discussed in the above paragraph applied mutatis mutandis.

113.  Thirdly, it is also important to distinguish between matter of liability for costs and matter of taxation of costs. In respect of matters in paragraph 102(a)(v) above, preparation for trial (including preparing and agreeing indices of the trial bundle) must be a necessary step in the litigation and forms part of the costs of the action that a successful party is normally entitled. If there are complaints as to whether any steps taken in relation to preparations for trial that are not necessary or proper on party-and-party basis, that is a matter of taxation of costs and not a matter for variation of the costs order nisi.

114.  As regards the Doctor’s complaints in paragraph 102(b) above which concerned the period after the Actions were deconsolidated, I find these matters also offered no justifiable basis for the Parents to be deprived of their costs of the action as from 27 February 2012.

115.  In my view, these complaints could be dealt with briefly. First, in relation to the allegation that the Parents were continuing to claim the Father’s loss of earnings in both actions in paragraph 102(b)(i) above, it was clear from the submissions made by Mr Ko, counsel for the Parents at the pre-trial review hearing on 25 September 2014 before this court, that notwithstanding the co-existence of (a) the Father Care Claim assessed by the Father’s loss of income and (b) the Father’s claim for loss of earnings over the same period, only one set of loss in respect of the Father earnings over the relevant period would be claimed against the Doctor. In any event, I cannot see how any significant costs had been wasted. After all, common sense dictated (and provided a complete answer) that there could not have been double recovery of damages based on the Father’s loss of earnings over the same period whether such loss be labelled as the Father Care Claim or as the Father’s loss of earnings, especially when at that stage both claims were in the Parents Action. It was after the CA Judgment was handed down that at the 2^nd Trial the Bosco Action was reinstated for the Father Care Claim, and with 2 separate actions it was made expressly clear by my order at the 2^nd Trial that for the avoidance of doubt the Father would not claim for loss of earnings on his own account over the same period in the Parents Action.

116.  As regards paragraphs 102(b)(ii) and (v) above, my observations in paragraph 113 above apply mutatis mutandis. I am not persuaded the so-called difficulties with documentation altered the picture on the question of liability for costs. In paragraphs 64-69 above, I have explained the need for revisions to schedules of special loss (eg medical expenses and sick leave). As for the financial records, notwithstanding extensive discovery sought by the Doctor only limited financial documents were deployed at the 2^nd Trial, and despite having access to such financial records for quite some time the Doctor only made request for clarification quite close to the 2^nd Trial.

117.  As for paragraphs 102(b)(iv) and (vi) above, upon taking a global view of the Parents’ evidence, I am unconvinced the Doctor’s complaints were sufficient to displace the general rule. In this respect, I refer to the discussion in paragraphs 103-108 above. As for the claim for wasted costs in relation to the proposed witness (ie the Cousin), again I am not persuaded it would alter the overall picture on costs. After all, the Parents would not be able to recover costs for preparation of the Cousin’s witness statement and/or other associated costs concerning the Cousin on taxation of costs since this witness was not called to give evidence.

118.  I should add that in an application for variation of costs order nisi, it is inappropriate to call upon the court to revisit all aspects of the litigation and conduct a minute fact-finding exercise to determine the rights and wrongs of all aspects of the conduct of the litigation. Such approach would only add unnecessarily to costs. Having considered both Mr Huggins SC’s and Ms Mok SC’s submissions, I am not persuaded the Doctor’s complaints were sufficient to displace the general rule that costs are to follow event. In any event, the Doctor failed to establish the Parents raised issues or made allegations improperly or unnecessarily such that they should be ordered to pay a part of his costs.

119.  Doctor’s conduct Ms Mok SC in her written submissions complained against the Doctor’s conduct in incurring costs that were disproportionate to the claim by taking out applications that had no merits and sought discovery of little value, thereby increasing costs of the action.[58] I agree the Doctor appeared to have adopted a forceful approach to the Parents Action which might translate into increase in costs, but I need not deal with these complaints specifically since the Parents did not seek any order for costs (eg indemnity costs) against the Doctor beyond the general rule that costs are to follow event.

120.  Ms Mok SC referred to the Doctor’s without prejudice save as to costs letter of 12 November 2012 (ie sent after the 2^nd Sanctioned Payment on 30 January 2012) that only offered a total sum of $300,000 to the Parents and on that basis the Parents were to pay the Doctor’s costs as from 31 March 2011. In my view, in light of the Judgment, it was not unreasonable for the Parents to reject such offer.

(d)  Doctor Strike Out Costs Application and costs of withdrawal of such application

121.  The Doctor made his application to strike out the Father’s claims for pre-trial and post-trial loss of earnings and for loss of congenial employment, and to strike out the Mother’s clam for pre-trial (after July 2012) and post-trial loss of earnings on the 1^st day of the 2^nd Trial. I dismissed the Doctor’s application on the same day and handed down the Reasons in relation to my reasons for such dismissal.

122.  In the Reasons, I note it was a late application, and I was unconvinced there was any good reason for the delay in making the application (see paragraph 3 of the Reasons). In respect of the Father’s claim for loss of earnings, I rejected Mr Huggins SC’s submissions that the pleadings were defective, and found there was evidence before the court that ought to be properly assessed and weighed at trial to resolve such question of fact. I also rejected Mr Huggins SC’s contention that a secondary victim was per se not entitled to loss of congenial employment. This meant the Doctor failed on all aspects of his application. I see no reason to displace the costs order nisi that the Doctor shall pay the Parents the Doctor Strike Out Costs, ie costs of and occasioned by his striking out application.

123.  Even if the legal consequences of Order 22 rule 23 of the RHC were applicable (but they did not apply here), it would not give the Doctor licence to take out any inapt application and then ask the Parents to pay him costs of such application that failed. It was fortunate the Doctor withdrew the Doctor Strike Out Costs Application as early as on 6 June 2017 which minimised the costs of such application, but there was no reason why the Doctor should not pay the Parents the costs of and occasioned by (a) the Doctor Strike Out Costs Application (which had no merit) and (b) the withdrawal of such application.

IX.  CONCLUSION

124.  In the circumstances, I am prepared to grant retrospective leave for the Doctor to file/serve the OT 2^nd Aff to regularise the matter since I have dealt with the affirmation de bene esse. However, since the Doctor failed to vary the Parents Costs Order Nisi and the costs order nisi in paragraph 18 of the Reasons (see paragraph below), such time indulgence was in principle futile, and the Doctor should therefore pay the Parents’ costs of and occasioned by the Time Summons (including all costs reserved, if any) to be taxed if not agreed on High Court scale and party-and-party basis, and the Parents’ own costs be taxed in accordance with Legal Aid Regulations.

125.  The Parents Costs Order Nisi and the costs order nisi in paragraph 18 of the Reasons are made absolute. I grant a costs order nisi that the Doctor shall pay the Parents costs of and occasioned by (a) the Summons (including costs of the Doctor Strike Out Costs Application) and (b) costs of withdrawal of the Doctor Strike Out Costs Application (including all costs reserved, if any) to be taxed if not agreed on High Court scale and party-and-party basis, and the Parents’ own costs be taxed in accordance with Legal Aid Regulations.

126.  Having carefully considered the matter, I am not persuaded that the costs against the Doctor should be awarded on indemnity basis. However, since the Doctor chose to make (a) the application by the Summons in the Parents Action which failed and (b) the application by the Time Summons which was in principle futile, he should pay costs on High Court scale.