XCHRX LILY TSE LAI YIN AND OTHERS v. THE INCORPORATED OWNERS OF ALBERT HOUSE AND OTHERS

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.828 OF 1997

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R U L I N G

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Costs order

1. Judgment in this case in favour of the plaintiffs against the defendants was given on 23 December 1999 on the issue of liability. A costs order nisi was included in that judgment which was handed down. The successful plaintiffs have now applied for me to enlarge my costs order nisi so as to order :

(a) the defendants to pay the costs of this action on liability, to be taxed on a common fund basis; and

(b) there be included in the costs order nisi a certificate for two counsel.

2. The defendants do not oppose a certificate for two counsel, but they do oppose the application for costs of this action on liability to be taxed on a common fund basis. I shall therefore only deal with the disputed part of that application here.

3. There were altogether eight plaintiffs in this trial and six named defendants, of which only three took an active part in the trial on liability. Interlocutory judgment had already been entered against the 6th defendant before the trial started. The trial itself spanned some 27 days.

4. It is accepted by all concerned that the court has a discretion to order costs to be taxed on a common fund basis after trial, if there exists special and unusual circumstances in the case itself. The plaintiffs therefore make this application showing special and unusual circumstances on the following basis :

(1) that three of the eight plaintiffs, namely the 4th, 6th and 8th plaintiffs, are minors;

(2) Seagroatt J on 21 July 1998, when he considered and confirmed the order for a split trial made by Master Woolley on 3 July 1998, commented by saying that this is a case in which the plaintiffs are bound to succeed on liability. (This case concerned the collapse of a canopy from a building resulting in the death of the deceased and injuries to seven of the plaintiffs, all of whom were pedestrians walking beneath the collapsed canopy at the material time); and

(3) because of the stance taken by the defendants at the trial, the plaintiffs were put to strict proof of every point by those defendants.

5. Admittedly, where a court is asked to approve a settlement or compromise in a case in the Personal Injuries List involving a plaintiff under a disability (whether a patient or an infant), costs are normally awarded on a common fund basis. But where the action is tried and disposed of by judgment, the normal rule is that no special consideration is given to the fact that the plaintiff is under a disability and the usual party-and-party costs are awarded. Here, although three of the eight plaintiffs are minors, this case went to trial and judgment was given in favour of the plaintiffs. It therefore comes within the second category as stated above. I was, however, referred to the case of Layzell v. British Portland Cement Manufacturers Limited [1961] 1 WLR 557 where common fund cost was awarded to an infant plaintiff for personal injuries after trial. The reason in that case why common fund cost was awarded after trial was due to the fact that legal aid was only granted to the infant's father and next friend part way through the action and did not cover all the costs. That is not the case here where legal aid was granted to all the plaintiffs at the very outset.

6. As for the second point taken by the plaintiffs, granted that it was difficult to see how the plaintiffs could have lost on liability, however, with the exception of the 3rd and 4th defendants (who did not take part in the trial), the other defendants raised defences which, if it had been successful on the evidence, would have exonerated them or some of them from liability in this case. Moreover, the defences raised were not frivolous and were defences that each of the defendants was entitled to raise. Each defendant was also seeking to put the blame on other defendants. Admittedly each of the defendants was not successful in their defence, but to order costs be taxed on a common fund basis for this reason would be punitive of the defendants for exercising their undoubted rights to defend the plaintiffs' claim.

7. As for the third point, the plaintiffs were put to strict proof of most parts of the plaintiffs' pleaded case. However, I take the view that the award of costs on a common fund basis was meant to compensate a plaintiff for the legal costs that he had been put to and for which he would not be able to recover if the common fund basis had not been ordered. That is why special and unusual circumstances had to be shown where the matter went to trial. Where, as here, the plaintiffs had been put to strict proof of most of its pleaded case by the defendants, reasonable expenses incurred in proving the plaintiffs' case would normally be recoverable under party-and-party costs.

8. Even considering all the points together, I am unable to see the kind of special and unusual circumstances in the present case to merit costs being ordered on a common fund basis. I therefore decline to exercise my discretion to do so.

9. Accordingly, the costs order nisi would only be amended to include a certificate for two counsel. I would further order that the costs flowing from this application to be part of the costs of the action itself.