LO YUK SUI v. FUBON BANK (HONG KONG) LTD formerly known as INTERNATIONAL BANK OF ASIA LTD

HCA 409/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 409 OF 2005

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D E C I S I O N

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Introduction

1.  On 8 January 2016, this court handed down a judgment (“Judgment”) in favour of the Plaintiff in the sum of HK$51,719,000 (“Judgment Sum”) togetherwith “interest at the commercial rate of prime plus 1% from 30 September 2004 to the date of judgment, and thereafter at judgment rate until payment”: para 126.  At para 127, this court made an order nisi (“costs order nisi”) that costs of the action be to the Plaintiff, to be taxed if not agreed, with certificate for two counsel. The judgment order has yet to be sealed pending the parties’ present applications.

2.  There are before this court two applications in relation to interest and costs.

(a)  By summons dated 21 January 2016, the Plaintiff seeks an order that paras 126 and 127 of the Judgment be varied as follows:

“1. The Defendant shall pay the Plaintiff the judgment sum of HK$51,719,000 together with interest thereon:

(a) at the commercial rate of prime plus 1% from 30 September 2004 to 31 December 2014; and

(b) at the enhanced interest rate of 18% (or at such other rate as the Court determines not exceeding 10% above judgment rate) from 1 January 2015 until payment.

2. The Defendant shall pay the Plaintiff’s costs of the action herein as follows:

(a) costs up to and inclusive of 31 December 2014 to be taxed (upon a party and party basis) if not agreed with certificate for two counsel; and

(b) costs since 1 January 2015 until payment to be taxed (upon an indemnity basis) if not agreed with certificate for two counsel.

3. The Defendant shall pay to the Plaintiff interest on those costs at para 2(b) above at the enhanced interest rate of 18% (or at such other rate as the Court determines not exceeding 10% above judgment rate).”

(b) By summons dated 22 January 2016, the Defendant seeks an order that para 126 of the Judgment be varied as follows:

“1. There shall be judgment in favour of the Plaintiff in the sum of HK$51,719,000 with interest thereon:

(a) at 2.5% or such other rate as the court considers appropriate for the periods from 9 March 2005 to 7 July 2008 and 19 November 2012 until date of judgment; and

(b) thereafter, at judgment rate until payment.”

3.  The Plaintiff’s application is made on the basis of a sanctioned offer dated 3 December 2014 to the Defendant (“Sanctioned Offer”) which was not less than 28 days before the commencement of the trial on 14 January 2015 for the purpose of RHC O 22 r 5 (7). Under the Sanctioned Offer, the Plaintiff was prepared to accept payment of the sum ofHK$50,000,000 (inclusive of interest) by the Defendant in full and final settlement of his claims. The Defendant did not accept the Sanctioned Offer.

4.  After trial, this court made an award in favour of the Plaintiff which is much more advantageous in comparison with the Sanctioned Offer. Hence, the present application.

5.  The grounds for the Defendant’s application are as follows:

(a)  The evidence shows that the Plaintiff was a high net worth individual and would have been able to borrow the amount of the Judgment Sum at a rate of interest much lower than prime plus 1%.

(b)  The Plaintiff has been guilty of inordinate delay in prosecuting the present Action and interest should not be awarded for such periods of undue delay.

6.  It seems to this court the arguments on both sides regarding interest are so intertwined that it is not practicable to deal with the two summonses entirely separately. Hence, this court intends to deal with all arguments on interest in one section before dealing with the arguments on costs. But before that, this court should determine a preliminary issue ie whether the court can re-open its decision on interest.

Re-opening decision on interest

7.  Concerning the Plaintiff’s application for enhanced interest, there is no dispute that the court can do so since the Plaintiff was not in a position to inform this court about the Sanctioned Offer prior to Judgment. There is, however, an issue as to whether the Defendant can similarly vary this court’s decision on interest.

8.  On the law, Mr Smith SC submits as follows.

(a)  The court can revisit its judgment and amend it as long as the order has not been sealed, after which time he would be functus officio: Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise, unrep, HCAL 113/2012 & HCAL 82/2013, 16 April 2015, McWalters JA (sitting as an additional High Court Judge) at [2]. This discretion extends to modifying or even reversing a decision which the court has already made, and which it has communicated to the litigants: Wan Chi Hing v Strong Master Corp Ltd, unrep, HCA 1554 & HCA 1555/2013, 8 December 2015, DHCJ Eugene Fung SC at [9].

(b)  Such a power must be exercised judicially and not capriciously and only where extraordinary or exceptional circumstances demanded recourse to it in the interests of justice. In considering whether recourse should be had to the power, the court has to balance the need for certainty and finality in a court's decision with the duty of the court to do justice between the parties and avert an unnecessary appeal: Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise at [3].

(c)  There is no special meaning to be given to “exceptional circumstances”. It is not a term of art and simply means strong reasons. Examples of strong reasons include inter alia a failure of the parties to draw to the court’s attention facts or points of law which are plainly relevant: Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533 at pp 543I-544A; Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise at [4]; Wan Chi Hing v Strong Master Corp Ltd at [9].

9.  Baroness Hale JSC recently reiterated that in deciding whether to exercise this power, the court should be guided by its overriding objective of dealing with the case before it justly and that every case is going to depend upon its particular circumstances: re L (Children) [2013] 1 WLR 634 (UK Supreme Court) at [27].

10.  This court agrees with Mr Smith SC that, in the particular circumstances of this case, it can and should exercise its power to revisit the interest rate as well as the period of interest. The reasons are these.

11.  First, as a matter of procedural fairness, this court cannot see how it can be just to allow the Plaintiff to reopen the issue on interest without similarly allowing the Defendant to do so.

12.  Second, it is wholly impractical to allow one side but not the other to reopen the issue of interest. This is because the arguments on interest from the parties are almost inseparably intertwined. Further, and importantly, each party’s arguments in support of its own summons are also deployed in opposition to the other side’s summons – this is especially pronounced in the case of the Defendant, as can be seen later in this decision.

13.  Third, the issue(s) concerning interest was not canvassed at any great depth at trial. On the last day of trial, Mr Smith briefly raised the point that certain pre-trial periods should be excluded from the award of interest by reason of the Plaintiff’s undue delay in prosecuting the Action. The point was not argued, though. This was because Mr Jat SC said he was taken by surprise and he might need to refer to the evidence in order to deal with the point. He therefore suggested this court to defer the question for further submission. That was a very sensible suggestion at the time which this court accepted. Once the issue(s) on interest had been deferred, it had been deferred to enable both parties (instead of just one) to re-open the issue(s) at a later stage.

14.  Fourth, at trial, neither party has filed the necessary evidence on the appropriate rate of interest and the court could have done no better than adopting the convention of prime plus 1% laid down by the Court of Appeal in Komala Deccof v Pertamina [1984] HKLR 219, 223. On that basis, the amount of pre-judgment interest at stake is substantial - HK$38.6 million. After the Judgment had been handed down, the parties had consented to each other filing evidence in opposition to the other’s summons, resulting in a consent Order dated 7 March 2016. The relevant evidence is now before this court and no one will suffer prejudice or will be taken by surprise if it were to allow both of them an opportunity to address this court on interest.

15.  This court emphasizes that this decision must not be taken as an encouragement to litigants in all subsequent cases to follow the footsteps of the parties in the present case. On the contrary, this court strongly discourages litigants to defer the question of interest until after judgment has been handed down. Such a practice, if established, will split trials into two parts: (i) liability and amount of the principal claim(s) and (ii) interest. In some cases, it may split trials into three parts: (i) liability, (ii) quantum and (iii) interest. It goes without say that this is highly undesirable for the administration of justice.

16.  To conclude, this court is satisfied that, on the exceptional circumstances of this case, it should reopen the issues on interest to which it shall now turn.

Interest

Interest rate prior to 1 January 2015

17.  It is a well-established principle that interest is awarded to compensate a plaintiff for being kept out of money which ought to have been paid to him:  London, Chatham and Dover Ry Co v South Eastern Ry Co [1893] AC 429 at 437 (Lord Herschell LC).

18.  The convention of awarding pre-judgment interest at the commercial rate of prime plus 1% was laid down in Komala Deccof v Pertamina and has since been consistently applied by the courts, with occasional exceptions. The commercial rate has been affirmed by the Court of Final Appeal as the “theoretical cost to the plaintiff of borrowing the sums withheld. This is a rate taken to be prime plus 1% unless the evidence in a particular case makes adoption of another rate appropriate”: Polyset Ltd v Panhandat Ltd,unrep, FACV No 28 of 2000; Determination dated 25 April 2002 at [13].

19.  In two recent decisions, the Court of Appeal refused to depart from the convention and re-confirmed that prime plus 1% was an appropriate starting point. This is so notwithstanding the argument that, in the currently prevailing low-interest economic and lending environment, prime rate was no longer the appropriate benchmark and a more appropriate approach would be to use HIBOR as a starting point: Waddington Ltd v Chan Chun Hoo Thomas & Ors, unrep, CACV 10/2014; 20 May 2016 at [175] - [180]; Tadjudin Sunny v Bank of America, National Association,unrep, CACV 12/2015; 20 May 2016 at [174] – [184].

20.  In Tate & Lyle Food and Distribution Ltd v Greater London Council [1982] 1 WLR 149 at 154, Forbes J observed as follows:

“...One looks, therefore, not at the profit which the defendant wrongfully made out of the money he withheld - this would indeed involve a scrutiny of the defendant's financial position - but at the cost to the plaintiff of being deprived of the money which he should have had. I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow money at a very high rate or, on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money. This does not, however, to my mind, mean that you exclude entirely all attributes of the plaintiff other than that he is a plaintiff.” (emphasis added)

21.  Mr Smith SC submits that the Plaintiff is a high net worth individual and would have been able to borrow at a rate of interest much lower than prime plus 1%. In this regard, he further submits that this court should prefer the evidence of Mr Cormie for the Defendant rather than that of Ms Young for the Plaintiff. On that basis, he urges this court to adopt the 12-month HIBOR from time to time plus 1.5% as the pre-judgment interest rate.

22.  In this court’s view, the affirmations of Mr Cormie and Ms Young are in the nature of expert evidence and it is quite extraordinary to expect the court to resolve conflicting expert evidence which has not been tested in cross-examination. Further, while Mr Cormie is a high ranking banker with experience in handling applications for unsecured loans by wealthy private individuals, his experience is limited to two Canadian banks in Hong Kong viz Canadian Imperial Bank of Commerce (Hong Kong) and then Bank of Montreal (Hong Kong) after the latter acquired the private banking business of the former.

23.  It is well-known that private banking or the so-called “wealth management” is a highly lucrative and competitive business in wealthy economies. There is no suggestion or evidence that all private banks and all private banking arms of investment banks such as Goldman Sachs or high street banks such as HSBC adopt a uniform lending policy towards high net worth individuals. Even Mr Cormie accepted that it is rare, though possible, for banks in Hong Kong to lend to a high net worth individual tens of millions of dollars without security. At the risk of stating the obvious, the approval (or otherwise) of each application depends on the particular circumstances of not just the borrower but also the lender at the time of the application – as far as the lender is concerned, it rather depends on the sort of business strategy it adopts at a particular time and how eager it is to solicit the custom of the borrower at that time.  Hence, it would be a gross over-generalisation to conclude that because the Plaintiff was a high net worth individual, he would necessarily have been able to borrow at less than prime plus 1% at all times.

24.  For the above reasons, this court is not satisfied that the evidence in the present case justifies a departure from the convention of awarding interest in commercial cases at prime plus 1%. That deals with pre-judgment interest rate prior to 1 January 2015.

Enhanced Interest rate from 1 January 2015 to Judgment

25.  The relevant parts of RHC O22 r24 are as follows:

(a)  Sub-para (1) provides that the rule applies where a defendant is held liable for more than the proposal contained in a plaintiff’s sanctioned offer or the judgment against a defendant is more advantageous to the plaintiff than the proposal contained in a plaintiff’s sanctioned offer.

(b)  Sub-para (2) provides that the court may order interest on the whole or part of any sum of money (excluding interest) awarded to the plaintiff at a rate not exceeding 10% above judgment rate for some or all of the period after the latest date on which the defendant could have accepted the offer without requiring leave of the Court (“Cut-off Date”). In the present case, the Cut-off Date was 31 December 2014.

(c)  Sub-para (4) provides that where this rule applies, the court shall make the orders at (2) unless it considers it unjust to do so and the court is required to take into account all the circumstances, including those set out in sub-para (5) (a) to (d). There is no dispute that the losing party who fails to beat the sanctioned offer bears the burden of proof in showing why it would be unjust to make the orders prescribed.

26.  Sanctioned offers are part of the new regime introduced by the CJR to encourage litigants to take settlement offers seriously and to avoid protracted legal proceedings, with all their ramifications on legal costs, the courts’ time and resources, as well as to avoid undue delay. The powers under the new regime are not penal in nature - the aim is to achieve a fairer result for the winning party, in this case the Plaintiff, and to redress the perceived unfairness of the fact that it will not be fully compensated for by costs orders on the ordinary basis (whether party and party or indemnity), statutory interest and damages: CEP v Wuxi Jiacheng Solar Energy Technology [2016] 1 HKLRD 960at [31].

27.  This court would take the opportunity to add that the purpose of the CJR generally and the underlying objectives of the rules are inter alia to ensure that a case is dealt with as expeditiously as is reasonably practicable, to facilitate the settlement of disputes and to ensure that the resources of the courts are distributed fairly. Since these are the general and underlying purpose and objectives of the rules, there is no reason why RHC O 22 r 24 is an exception. Hence, while achieving a fairer result for the winning party is important, it is equally important that the power under that rule should be so exercised that the courts’ time and resources will not be unnecessarily spent and incurred by the rejection of a serious sanctioned offer which the losing party eventually fails to beat.

28.  Mr Wong SC has cited various authorities to support his submission that in the past, courts in Hong Kong have awarded enhanced interest at between 2% to 6% above judgment rate. Mr Wong SC submits in the present case the appropriate enhanced interest should be 6% above judgment rate as from the Cut-off Date. In support, he has cited four factors:

(a)  The Sanctioned Offer was very generous in comparison with the Judgment.

(b)  There were few disputes of fact on liability – most of the evidence relied on by the parties was documentary instead of oral.

(c)  The experts have agreed on all the figures (hence there were also few disputes on quantum) – the only dispute between them was the basis of valuation.

(d)  The Defendant raised a new point on the first day of trial which required amendment to pleadings. Since the Defendant deliberately took a risk at the beginning of trial, it had to accept the consequences.

29.  This court agrees with Mr Wong SC on the relevance of the first three factors but does not agree that they justify an enhanced interest rate of 6% over judgment rate. The fourth factor is of minimal significance – every defendant who rejects a sanctioned offer takes a risk, the consequences of which are set out in RHC O 22 r 24. It is not clear to this court why taking such a risk necessarily justifies an enhanced interest rate of 6% over judgment rate, as opposed to a lower or higher figure.

30.  Under RHC O 22 r 24 (5)(a), the court shall take into account of the terms of any sanctioned offer. In this case, the offer of HK$50 million (all inclusive) was indeed very generous to the Defendant in comparison with the Judgment of HK$51.7 million plus interest at prime plus 1%. Under RHC O 22 r 24 (5)(c), the court shall take into account the information available to the parties at the time when the sanctioned offer was made. In the present case, since most of the evidence relied upon by the parties was documentary in nature and the experts were in agreement on the figures, the information available to the parties before trial should have been sufficient to enable an informed decision be made on whether or not to accept the Sanctioned Offer.

31.  However, this court must also take into consideration the stage in the proceedings at which any sanctioned offer was made: RHC O 22 r 24(5)(b). In the present case, the Sanctioned Offer was made on 3 December 2014, just over 1 month before trial. In the ordinary course of events, and there is no evidence to suggest otherwise, by then, the bulk of the legal costs would have been incurred for a claim of this size. Hence, relatively little in terms of legal costs would have been saved by the offer: McPhilemy v Times Newspapers (No.2) [2002] 1 WLR 934 at [12]. This court must also take into account the conduct of the Defendant as part of the circumstances of the case. In this regard, there is no suggestion that the Defendant has acted mala fide in defending the claim and it seems to this court no criticism can be laid on the Defendant or its legal team for so doing: Petrotrade Inc v Texaco Ltd [2002] 1 WLR 947 at [76] (Lord Woolf MR).

32.  In his written submissions in opposition to the Plaintiff’s summons and in support of the Defendant’s summons, Mr Smith SC made the following points:

(a)  It would be unjust to impose enhanced interest (and indemnity costs) by reason of the Plaintiff’s substantial delay in prosecuting the Action. He invited this court to award interest only in respect of the periods from 9 March 2005 to 7 July 2008 and from 22 August 2012 to Judgment. In other words, interest should be disallowed for the 4-year period from 8 July 2008 to 21 August 2012 (“Excluded Period”).

(b)  It would be unjust to impose the full uplift of 10% (or 6% as now proposed by the Plaintiff) above judgment rate.

(c)  Enhanced interest could only be awarded until date of judgment, not thereafter ie until date of payment as the Plaintiff sought.

(d)  The enhanced rate of interest should be inversely proportional to the size of the claim: Petrotrade Inc v Texaco Ltd at [77] (Lord Woolf MR).

33.  Regarding unfairness caused by undue delay, since the Excluded Period pre-dated 1 January 2015, it is irrelevant to the issue of enhanced interest.

34.  Importantly, if there had been undue delay on the part of the Plaintiff, the appropriate remedy is to identify the period(s) of undue delay and consider whether the delay justifies disallowing interest altogether or reducing the rate of interest for the period(s) in question. These issues will be canvassed later in a separate section.

35.  Regarding post-judgment interest rate, as it raises an issue on the court’s jurisdiction under section 49 of the High Court Ordinance, this will also be canvassed later in a separate section.

36.  As to whether it is unjust to impose the 6% uplift above judgment rate as enhanced interest, this court accepts that the Judgment Sum is already quite substantial. To put the matter in its proper perspective, the Defendant has calculated that the amount of pre-judgment interest ie from 30 September 2004 to 8 January 2016 is over HK$38.6 million on the basis of prime plus 1%. But that is largely because the period in question is very long - over 11 years and 3 months. The interest per year at that rate is on average slightly over HK$3.4 million. The interest per year at the rate of 6% over judgment rate from 1 January 2015 would be around HK$7.2 million.

37.  To give enhanced interest at the rate of 14% from 1 January 2015 to 8 January 2016 would indeed overcompensate the Plaintiff for being kept out of the money which ought to have been paid to him earlier. On the evidence, it is quite inconceivable that the Plaintiff had to borrow at the rate of 14% p.a.. But that is only part of the picture. As this court said earlier, it is important that the power under RHC O 22 r 24 should be so exercised that the court’s time and resources will not be unnecessarily spent and incurred by the rejection of a serious sanctioned offer which the losing party eventually fails to beat. Awarding interest at the conventional rate of prime plus 1% means interest is not enhanced at all and will be defeating the purpose and underlying objectives of the CJR in general, and RHC O 22 in particular.

38.  Looking at the matter in the round, and giving due regard to the size of the claim and the amount of interest at stake, it seems to this court that awarding interest to the Plaintiff at the rate of 10% as from 1 January 2015 is appropriate to strike a balance between the various competing factors for and against departing from the conventional commercial rate and this court shall so order.

Exclusion of interest for undue delay

39.  The relevant principles are set out by Au J in Hong Kong Electric Co Ltd v Commissioner of Rating and Valuation, unrep; LDGA No 224 of 2004; LDRA No 358 of 2004; 12 April 2010 at [19]:

“...it is trite that interest can be disallowed if the claimant is guilty of delay:

(1) As said by Watkins LJ in Birkett v Hayes [1982] 1 WLR 816 at 825:

‘It is ... wrong that interest should run during a time which can properly be called unjustifiable delay after the date of the writ. During that time the plaintiff will have been kept out of the sum awarded to him by his own fault. The fact that the defendants have had the use of the sum during that time is no good reason for excusing that fault and allowing interest to run during that time.’ (emphasis added)

(2) These principles are further stated by Jackson J in Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452 at 460:

‘(1) Where a claimant has delayed unreasonably in commencing or prosecuting proceedings, the court may exercise its discretion either to disallow interest for a period or to reduce the rate of interest.

(2) In exercising that discretion the court must take a realistic view of delay. In the case of business disputes, litigation is for all parties an unwelcome distraction from their proper business. It is not reasonable to expect any party to take every litigious step at the first possible moment, or to concentrate on litigation to the exclusion of all else. Delay should only be characterised as unreasonable for present purposes when, after making due allowance for the circumstances, it can be seen that the claimant has neglected or declined to pursue his claim for a significant period.

(3) When determining what disallowance or reduction of interest should be made to mark a period of unreasonable delay, the court should bear in mind that the defendant has had the use of the money during that period of delay.’”

40.  In the present case, the Writ of Summons was issued on 9 March 2005.  The Defendant has divided the Excluded Period into two phases, during which the Plaintiff took no steps in the Action save for the filing of two notices of intention to proceed.

Phase 1 – From 7 July 2008 to 17 May 2010

41.  This court was told that 7 July 2008 was the date when the Defendant filed its 2^nd Supplemental List of Documents (consisting of 8 documents) while 17 May 2010 was the date of a letter from the Plaintiff’s then solicitors to the Defendant’s then solicitors that each of them should file its Timetabling Questionnaire within 14 days. In between, all that the Plaintiff had done was to file a notice of intention to proceed on 18 December 2009.

42.  Mr Smith SC submits the Plaintiff’s explanation for the delay ie “having received [Defendant’s] Supplemental List of Documents in July 2008, my legal team, my assistants and myself took some time to consider the voluminous documents disclosed in this action and prepared various draft witness statements to be filed in this action” and that the Plaintiff’s legal team had to take steps to prepare the Timetabling Questionnaire, is unconvincing.

43.  This court agrees.

44.  Given the Writ of Summons was issued as early as March 2005, it is indeed unreasonable for the Plaintiff not to have finalised, by 2009 or 2010, the preparation [1] of his witness statements. Nor is it reasonable for the Plaintiff’s legal team to take months to prepare his Timetabling Questionnaire which is a fairly standard document. Taking a broad brush approach and giving due allowance to the fact that the Plaintiff’s legal team would need time to consider their next step forward after discovery and at least start preparing witness statements, this court takes the view that there was undue delay in prosecuting the present Action between 1 January 2009 and 17 May 2010. Accordingly, this court will disallow interest altogether for that period.

Phase 2 -  From 13 August 2010 to 22 August 2012  

45.  13 August 2010 was the date when the Plaintiff’s then solicitors sent a letter to the Defendant’s solicitors regarding the time for the exchange of witness statements while 22 August 2012 was the date when the Plaintiff finally issued a case management summons. During that period, apart from exchange of correspondence, the Plaintiff had only filed another notice of intention to proceed on 10 April 2012.

46.  It seems to this court there was again undue delay on the part of the Plaintiff in failing to issue a case management summons much earlier than 22 August 2012. However, the Defendant was also partly to blame. This is because it was the Defendant who suggested that the parties should take out the case management summons after they had exchanged statements, and it was the Defendant who encountered difficulties in locating the relevant witnesses (who had left the Defendant’s employment) and was thus “not inclined to arrange for exchange of witness statements”: paragraph 13 of 3^rd affidavit of Mr Ridgeon. Be that as it may, the Plaintiff had a duty to prosecute the Action with due diligence and must bear the brunt of the consequences of  delay.

47.  Again, taking a broad brush approach and giving due allowance for the Plaintiff’s need to consider how best to respond to the Defendant’s failure to agree a date for the exchange of witness statements, this court takes the view that there was undue delay on the part of the Plaintiff for the 18 months of its inactivity say from 22 February 2011 to 22 August 2012. Instead of disallowing interest altogether for that 18-month period, this court is minded to reduce the applicable interest rate, ie prime plus 1%, by half, and will so order.

Post-Judgment Interest

48.  Section 49(1) High Court Ordinance reads:

“49 (1) Judgment debts shall carry simple interest:

(a) at such rate as the Court of First Instance may order; or

(b) in the absence of such order, at such rate as may be determined from time to time by the Chief Justice by order,

on the aggregate amount thereof, or on such part thereof as for the time being remains unsatisfied from the date of the judgment until satisfaction.”

49.  On this question, since the Defendant paid up the Judgment Sum (plus interest) on 5 February 2016, about 1 month after the Judgment, the financial significance of this issue is relatively small. However, given its legal implications, this court shall endeavour to give a ruling on the question and explain how that is arrived at.

50.  It is a long-standing and common practice for the courts to award, by express order or by default, interest on judgment debts at the judgment rate which is determined by the Chief Justice from time to time: Hong Kong Civil Procedure 2016 Vol 2 para E1/49/3.

51.  Mr Smith SC argues this court has no jurisdiction to grant enhanced interest after judgment and refers this court to two authorities viz McPhilemy v Times Newspapers (No.2) at [24] and Kai Ming Fashion (HK) Ltd v Found Express Logistics Ltd [2013] 1 HKC 563 at [28] to [30] said to be in support.

52.  In McPhilemy v Times Newspapers (No.2) at [24], Chadwick LJ observed:

“ ...In my view paragraphs (2) and (3)(b) of rule 36.21[2] are not intended to confer on the court powers to vary the rate at which interest is payable on a judgment debt pursuant to section 17 of the Judgments Act 1838 (1 & 2 Vict c 110)... The power to fix the rate at which interest is payable on judgment debts has been conferred on the Lord Chancellor by section 44 of the Administration of Justice Act 1970 and is exercisable by him with the concurrence of the Treasury. I can see no reason why Parliament should have intended to confer on the courts, indirectly through rules made by the Civil Procedure Rule Committee under section 1(1) of the Civil Procedure Act 1997, power to vary in individual cases a rate fixed under the 1970 Act; nor any reason why a power to fix the rate at which interest is payable on judgment debts could be required for the purpose of ‘securing that the civil justice system is accessible, fair and efficient’: see section 1(3) of the 1997 Act. Nor can I see why a party who fails to pay a judgment debt, which (ex hypothesi) the court has ordered that he should pay, should pay more, or less, interest on that debt because, in the litigation which has led to that order, the other party has, or has not, made an offer to which rule 36.21 applies.” (emphasis added)

53.  In Kai Ming Fashion (HK) Ltd v Found Express Logistics Ltd at [29] - [30], Recorder Jat SC also concluded that he had no jurisdiction to order enhanced interest after judgment. However, the basis of his conclusion was that Chadwick LJ “observed that the Court probably does not have jurisdiction under Rule 36.21 of the English CPR... to award enhanced rate of interest” after judgment. 

54.  Mr Wong SC, on the other hand, relies on the express terms of section 49(1)(a) High Court Ordinance which, Mr Smith SC is prepared to assume, has no equivalent in England. Mr Wong SC also refers this court to Ryder Industries Ltd v Timely Electronic Company Ltd 2013] 5 HKLRD 343 at [28] and [29] in which Recorder Houghton SC said he was satisfied the court had jurisdiction to order enhanced interest after judgment [3].

55.  In this court’s view, the strict legal position is that section 49 (1)(a) does enable the court to fix a post-judgment interest rate which need not be the judgment rate as determined by the Chief Justice. But the power is discretionary in nature – the fact that such a power exists does not per se means it should be exercised in any given set of facts. In practice, the courts are normally content to award interest at the judgment rate for the sake of inter alia consistency and certainty.

56.  Mr Smith SC argues that, as a matter of discretion, this court should not depart from that practice - it should simply adopt the judgment rate in the present case for post-judgment interest. This court agrees, for the following reasons.

57.  To start with, this court agrees with Chadwick LJ’s observation that it is difficult to “see why a party who fails to pay a judgment debt...should pay more or less interest on that debt just because, in the litigation which has led to that order, the other party has, or has not, made” a sanctioned offer. In this court’s view, that observation applies equally in the Hong Kong context. 

58.  Importantly, it does not seem to this court that early recovery of the sum due to a plaintiff is one of the underlying objectives of RHC O 22 r 24. Mr Wong SC has not put forward any convincing argument in that respect - nor are there authorities in support of such a proposition. As long as the Judgment Sum is not paid, it will, in line with practice, carry interest at judgment rate which, as far as this court is aware, is always higher than the commercial rate. The fact that judgment rate is higher than the commercial rate is itself a sufficient incentive for a losing defendant to make payment early, as the Defendant has done in the present case. While, no doubt, the higher the post-judgment interest rate, the more incentive there is for a losing defendant to pay up the judgment debt sooner rather than later, there has to be a reasonable and proportionate limit to such an incentive. In the absence of special circumstances, this court is not satisfied that any further incentive is justified and no convincing argument has been put forward by the Plaintiff to justify it in this case.

59.  Lastly, as the defendants in Ryder Industries Ltd v Timely Electronic Company Ltd submitted at [27], whatever inconvenience and disruption may have been caused by the diversion of senior management of a plaintiff from their normal duties owing to the litigation, such inconvenience and diversion ends with the judgment. It would therefore over-compensate the Plaintiff in the present case should this court award enhanced interest after the Judgment.

60.  In the premises, this court is not persuaded that it should depart from the long-standing practice of awarding interest on a judgment debt at the judgment rate. It therefore holds that the enhanced interest rate of 10% should only apply up to Judgment, after which the judgment rate applies until payment.

Costs and interest on Costs

61.  RHC O22 r24 sub-paras (3) and (4) provide that:

(a)  The Court may order that the plaintiff is entitled to (a) his costs on the indemnity basis after the Cut-off Date [ ie 31 December 2014 in the present case] and (b) interest on those costs at a rate not exceeding 10% above judgment rate.

(b)  Where this rule applies, the court shall make the orders at (3) unless it considers it unjust to do so. The court is required to take into account all the circumstances including those set out in sub-para (5) (a) to (d).

62.  Dealing with the basis of taxation first, the Plaintiff seeks to vary the costs order nisi to the extent that costs of the action since 1 January 2015 be taxed on an indemnity basis, in line with sub-para (3).

63.  The rationale of awarding costs on an indemnity basis after the Cut-Off Date was set out in McPhilemy v Times Newspapers (No. 2) and endorsed by Lam J (as he then was) in Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2013] 1 HKC 563 at [13]. This court would gratefully adopt that rationale. Like Lam J in Golden Eagle, this court sees no unfairness, and none has been established by the Defendant, in awarding costs on an indemnity basis after the Cut-Off Date. But for the Defendant’s failure to accept the Sanctioned Offer, the Plaintiff need not have incurred legal costs after the Cut-off Date. Policy considerations require the award of indemnity costs to better compensate the Plaintiff for those additional legal costs.

64.  As a matter of principle, only costs incurred after the Cut-Off Date should be taxed on an indemnity basis, irrespective of when they were paid: Golden Eagle at [14]. This much was accepted by Mr Wong SC in his submissions. The practical significance of this principle is that, on the evidence available, the Plaintiff had made 3 payments to his solicitors after 31 December 2014 whereas it would appear that a substantial portion of the payments was to settle costs incurred prior to that date e.g. counsel’s brief fee for the trial, as well as refreshers (used or unused[4]), since briefs had been delivered prior to that.

65.  In these circumstances, and in order to give full effect to the spirit of the CJR and RHC O 22 r 24, this court would vary the costs order nisi to the extent that costs of the action incurred since 1 January 2015 be taxed on an indemnity basis, if not agreed, with certificate for 2 counsel.

66.  This court now turns to the Plaintiff’s claim for enhanced interest on costs.

67.  In KR v Bryn Alyn Community (Holdings) Ltd [2003] PIQR P30 at [22], Waller LJ said:

“If an order is made to pay costs on an indemnity basis, it is unlikely to be unjust to make the party pay interest on those costs for the period when litigation is being funded when acceptance of a Pt 36 offer should have led to it not being funded...”

68.  This court agrees with the observation of Waller LJ and holds that, as a matter of principle and in order to better compensate the Plaintiff for its legal expenses, it should award interest on the costs incurred by the Plaintiff after the Cut-Off Date.

69.  As for the rate of enhance interest, in the absence of considered arguments from the parties, this court is minded to award the same enhanced interest rate of 10% on the costs incurred by the Plaintiff after the Cut-Off Date for the sake of inter alia consistency and ease of application.

70.  Lastly, Mr Wong SC submits that while in principle, enhanced interest on costs should run from the date each item of costs was incurred, this could cause practical difficulties in calculating the amount, with each item of work carrying interest from a different date. He therefore urges this court to adopt the practical approach of Lam J in Golden Eagle at [18] by (i) awarding interest at half the rate which the court would otherwise see fit to order on costs incurred after the Cut-off Date and (ii) ordering interest to run from that day.

71.  This court agrees with the approach and reasoning of Lam J in Golden Eagle. It would therefore award interest at 5% on costs incurred by the Plaintiff after the Cut-off Date and order interest to run as from that day.

Disposition and costs order nisi

72.  This court hereby varies paragraphs 126 and 127 of the Judgment to the extent indicated above.

73.  The parties shall endeavour to agree on the terms of the draft Order for approval by this court. In the absence of agreement within 21 days from the date of this Decision:

(a)  The Plaintiff is directed to file and serve its proposed draft Order within 7 days thereafter.

(b)  The Defendant is directed to file and serve its proposed revision(s) to the Plaintiff’s said draft Order within 7 days thereafter, with a concise explanation of the reasons for the revision(s).

(c)  Unless otherwise indicated, the court will approve the terms of the Order as it sees fit on paper.

74.  Liberty to apply.

75.  On the question of costs of the two applications, this court takes the view that neither party has been completely successful in their own applications or opposing the other side’s.  A fair order would be for each party to bear its own costs and this court shall so order, on a nisi basis.

76.  Lastly, this court thanks counsel for their helpful assistance.