ELIJAH SAATORI v. RAFFLES MEDICAL GROUP

CACV184/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.184 of 2009

(On Appeal from HCPI No.1114 of 2006)

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J U D G M E N T

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Hon. Yuen JA (giving the judgment of the court):

1. On 29 January 2010 judgment was given in CACV184/2009 (“the Appeal”), allowing the Plaintiff’s appeal from Deputy Judge Carlson’s order dismissing HCPI1114/2006 but dismissing the Plaintiff’s appeal from the Restricted Applications Order (RAO) and Restricted Proceedings Order (RPO) made by the judge.  The parties having agreed that costs of the Appeal should follow the event, and as each party had succeeded in half of the appeal, an order was made that there should be no order as to costs of the appeal.  As for the costs before the judge, an order nisi was made for the Plaintiff to bear half of the costs.  There was no application from either party to vary that order nisi and so it became absolute after 14 days (Order 42 rule 5B(6) Rules of the High Court).

2. On 9 February 2010 the Plaintiff issued a Notice of Motion for leave to appeal to the Court of Final Appeal.  The Plaintiff sought first to overturn the orders on costs.  He also contended in the Notice of Motion that there was an “inherent weakness in upholding the RAO judgment” as he considered that all the applications he made to the court were warranted. 

3. The Notice of Motion was first heard on 12 March 2010 during which it was pointed out to the Plaintiff that he had not applied to vary the costs order nisi.  The Plaintiff said that he was not aware of the effect of a costs order nisi and indicated that he wished to apply to vary it even though the time for doing so under the Rules of the High Court had expired.  The hearing was adjourned to enable the Plaintiff to issue a summons for variation of the costs order nisi out of time, on condition that he pay the Defendants’ costs of the adjournment of $4,000, which he did (incidentally insofar as is necessary, we make an order for payment out of that sum to the Defendant).

4. On 31 March 2010 the Plaintiff issued a summons to vary the costs order nisi out of time.  He sought an order that he be entitled to 95% of his costs before the judge as he alleged that that was the proportion of time taken for the Strike-out application and he also proposed a similar proportion of costs of the Appeal.  He further provided a statement of his costs.  The Defendant disputed the Plaintiff’s assessment of the time taken and also objected to the Plaintiff’s estimate of his costs. 

5. Accordingly on 27 April 2010 this court dealt with two matters: (1) the Plaintiff’s summons to vary the costs order nisi out of time and (2) his Notice of Motion for leave to appeal to the Court of Final Appeal.

6. First as to costs, we consider that our order regarding the costs of the Appeal was correct on our estimate of the time taken to argue the Strike-out and the RAO/RPO and the parties had also agreed that the costs of the Appeal should follow the event.  However as to the costs for the hearing before the judge, we consider that in light of the parties’ dispute as to the time taken (and this would include not only the actual hearing time but also the costs of preparation), this court has no alternative but to vary the order nisi as follows: the costs of the Strike-out summons be to the Plaintiff and the costs of the RAO and RPO summons be to the Defendant, such costs to be taxed if not agreed. 

7. Secondly, as to leave to appeal to the Court of Final Appeal, the Hong Kong Court of Final Appeal Ordinance Cap. 484 provides that leave may be given only where the application falls within s.22(1).  However it is clear that the Plaintiff’s application does not fall within either s.22(1)(a) or s.22(1)(b). 

8. It would appear from the Notice of Motion that the Plaintiff is not relying on s.22(1)(a) and in any event he would not succeed under this subsection.  The claim in the action is for unliquidated damages and the Court of Final Appeal has held that the monetary criterion under s.22(1)(a) does not encompass costs (Peter PF Chan v Hong Kong Society of Accountants [2001] 1 HKLRD 779).

9. Section 22(1)(b) requires the applicant for leave to identify a question of great general or public importance involved in the appeal.  We have considered the contents of the Notice of Motion and the Plaintiff’s submissions both written and oral.  We do not see any such question in the Appeal.  Nor do we see any other reason why leave should be given to appeal to the Court of Final Appeal.  Accordingly the application for leave is dismissed.

10. As to the costs of the summons to vary the costs order nisi and of the Notice of Motion, an application to vary a costs order nisi is regarded as part of the original hearing itself, in this case the hearing of the Appeal.  Accordingly we make an order nisi that there should be no order as to the costs of the summons (the costs of the adjournment having been provided for).  As for the costs of the Notice of Motion, we would make an order nisi that the Plaintiff should pay the costs of the Notice of Motion to the Defendant to be taxed if not agreed.  In this connection we would note that the application for leave to appeal to the Court of Final Appeal was concerned with the costs order and the RAO/RPO, and neither matter satisfies the requirements of s.22(1)(b).