LEE WAI KIN v. SAN XING (CHINA) TRADING LTD AND ANOTHER

HCPI 1323/2015

[2019] HKCFI 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1323 OF 2015

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DECISION

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1.  This is the hearing of the Plaintiff’s Summons dated 1 March 2019.  In summary, the Plaintiff seeks:

1.1   That the figure representing the Plaintiff’s monthly earnings for the purposes of calculating future loss of earnings be rectified from “HK$17,225 per month” to “HK$20,800 per month” in paragraph 87 of the Judgment dated 12 February 2019 (the “Judgment”), and the corresponding calculations and references be rectified accordingly in paragraphs 89, 90, 101 and 110 of the Judgment;

1.2   That the issue of costs as between the Plaintiff and the 2^nd Defendant be reconsidered and that the costs order under paragraph 114.2 of the Judgment be reviewed and revised as “the 2^nd Defendant shall pay the Plaintiff’s costs of these proceedings from the date of application for joinder, to be taxed if not agreed”;

1.3   If necessary, leave to the Plaintiff to appeal on the issue of costs. 

2.  In the present case, the order that is sought to be rectified and/or varied has not yet been sealed. 

A.   Legal principles on revisiting previous orders and reconsidering judgments

3.  The Court has the power to revisit a previous order (even where it has been sealed) where:

3.1   It amends a previous order so as to reflect the Court’s manifest intention. 

3.2   It amends a previous order in order to correct a clerical error or accidental slip. 

3.3   It clarifies, amends or supplements a previous order for the working out of the order where necessary under either express or implied “liberty to apply” provisions. 

3.4   Additionally, statutory rules may be applicable. For example, the Court has power under Order 3 rule 5 of the Rules of the High Court to extend the time stipulation in a previous order. 

See Poon Ching Man v. Lam Hoi Pun[2015] 3 HKLRD 57 at paragraphs 13, 23 to 30, 34 and 46.

4.  Pursuant to Order 20 rule 11 of the Rules of the High Court, clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on summons without an appeal. 

5.  In addition, a Court has jurisdiction to reconsider its judgment before its order has been perfected, and can permit argument to be reopened.  Nevertheless, the Court should exercise its power cautiously and sparingly, and there must be exceptional circumstances or strong reasons to reconsider its judgment.  See Noga v Abacha [2001] 3 All ER 513, paragraphs 12, 14 and 43; Yau Wah Hing and Or v Yuen Kay Ming, CACV 46/2012, 19 March 2013, paragraphs 52 and 54; Sun Jianqiang v Trans-Island Limousine Service Limited [2004] 1 HKC 533, paragraphs 24 to 30. 

6.  Mr Lim has drawn my attention to the English case of In re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] 1 WLR 634, in which Baroness Hale held that the overriding objective must be to deal with a case justly, rather than to focus on whether there are exceptional reasons for reconsidering a judgment.  See paragraphs 27 and 29 of the judgment.  However, Hong Kong Court of Appeal decisions are clearly binding upon me (see the second and third cases I have referred to in the preceding paragraph), and given that the term “exceptional circumstances” has been used by the Hong Kong Court of Appeal, I do not consider it open to me to disregard such terminology.  In any event, the Hong Kong Court of Appeal has referred not only to “exceptional circumstances”, but also to “strong reasons”, as being sufficient for a Court to exercise its reconsideration jurisdiction. Thus, either of those formulations would suffice, and the Court is not restricted to exercising its reconsideration jurisdiction only where there are exceptional circumstances. 

B.   Whether any rectification should be made for the figures and calculations relating to the Plaintiff’s future loss of earnings

7.  With respect to the question of whether any rectification should be made for the figures and calculations relating to the Plaintiff’s future loss of earnings, it comes down to the question of what the Court’s manifest intention was, and also whether there was a clerical error or accidental slip. 

8.  Although the Board[1] submits that the Court has not made any clear or express finding of fact that the Plaintiff’s notional earnings (as opposed to a production worker’s monthly earnings) would have been HK$20,800 at around the date of the assessment of damages had the Accident not occurred,[2] in my view that is not correct on a fair reading of paragraphs 57 to 61 of the Judgment.  In paragraph 59 of the Judgment, I had stated that “For the purposes of calculating the current notional wages of the Plaintiff, I am prepared to use a daily rate of HK$800”, and as explained at paragraphs 57 and 60 of the Judgment, on the basis of a daily rate of HK$800 and 26 working days per month the monthly salary of a production worker in the recycling industry would be HK$20,800.  I then used the figure of HK$20,800 to calculate the Plaintiff’s pre-trial loss of earnings at paragraph 61 of the Judgment.  Thus, I clearly applied the figure of HK$20,800 to the Plaintiff. 

9.  Further, whilst the Board has referred me to paragraphs 29 to 31 and 45 and 46 of its Closing Submissions in support of its suggestion that its position and submission has always been that future loss of earnings should be based on the Plaintiff’s current monthly earnings and not the current monthly earnings of a production worker,[3] in fact it is clear from paragraphs 27 to 32, 44 and 45 of the Board’s Closing Submissions (especially paragraph 30) that the Board has all along proceeded on the basis that the Plaintiff’s monthly earnings as at the date of the assessment of damages but for the occurrence of the Accident should be the monthly earnings of a production worker at that time.  In particular, the Board has never argued that the Plaintiff’s monthly salary for the purposes of computing the Plaintiff’s future loss of earnings should be the pre-trial average between what the Plaintiff had been earning as at the time of the Accident and the Plaintiff’s notional salary as at the date of the assessment of damages. 

10.  Although the Board has suggested various possible reasons for why I might have found that the Plaintiff’s notional wages as at the date of the assessment of damages should not be HK$20,800,[4] those are not reasons that I had given in the Judgment, and on the contrary, at paragraphs 57 to 59 of the Judgment I had expressly accepted the Plaintiff’s evidence by way of advertisements in calculating the notional wages of the Plaintiff as at the date of the assessment of damages. 

11.  It was clearly not my intention to proceed on a basis that neither party had argued for, and it was a clerical error or accidental slip that in paragraph 87 of the Judgment, I had referred to the figure of HK$17,225 per month rather than HK$20,800 per month. 

12.  In the premises, the reference in paragraph 87 of the Judgment should be rectified from “HK$17,225 per month” to “HK$20,800 per month”.  In addition, the corresponding calculations and references should be rectified accordingly in paragraphs 89, 90, 101 and 110 of the Judgment as follows (and the Board has helpfully confirmed the following calculations as a matter of arithmetic):

12.1   In paragraph 89 of the Judgment, the figure “HK$17,225” shall be rectified to “HK$20,800”, and paragraph 89 shall read “I award future loss of earnings to the Plaintiff as follows: (HK$20,800-HK$10,000) x 12 months x 12.89 = HK$1,670,544.”.

12.2   In paragraph 90 of the Judgment, the figures “HK$1,117,563” and “HK$55,878” shall be rectified to “HK$1,670,544” and “HK$83,527.20” respectively, and the “Total Loss of MPF: HK$105,946” shall be rectified and read as “Total loss of MPF: HK$133,595.20”.

12.3   In paragraph 101 of the Judgment, the summary of award shall be rectified and read as:

PSLA	HK$550,000
Pre-trial loss of earnings	HK$1,001,352.50
Future loss of earnings	HK$1,670,544
Loss of MPF	HK$133,595.20
Loss of earning capacity	HK$100,000
Special damages	HK$22,700
Total (before taking into account employees' compensation and advanced payment)	HK$3,478,191.70
Less employees' compensation and advanced payment received by the Plaintiff	HK$656,543
Total	HK$2,821,648.70

12.4   In paragraph 110 of the Judgment, the phrase “I have awarded HK$2,241,018.50 plus interest” shall be rectified and read as “I have awarded HK$2,821,648.70 plus interest”.  Further, in the same paragraph the reference to “1.5 times” shall be rectified to “1.23 times”. 

C.   Whether the costs order in the Judgment should be reconsidered and/or varied

13.  As explained in Section A above, I have jurisdiction to reconsider my earlier costs order, but I should only do so if there are exceptional circumstances or strong reasons. 

14.  In summary, having taken into consideration the points raised by Mr Lim, I do not consider that those points (whether individually or taken together) constitute sufficiently strong reasons or exceptional circumstances for me to reconsider my costs order and to order costs against the Board. 

15.  First, Mr Lim relies upon the correction of the Plaintiff’s monthly earnings for the purposes of calculating his future loss of earnings, and the resulting impact on quantum.[5] In that regard, as explained in Section B above, the quantum awarded to the Plaintiff is now HK$2,821,648.70 plus interest (rather than HK$2,241,018.50 plus interest), and the Plaintiff’s claim is 1.23 times what I have awarded (rather than 1.5 times).  In other words, the Plaintiff has been able to obtain around 81.25% of his claim. 

16.  As Mr Phang has rightly pointed out however, the level of quantum was only one of the factors that I had taken into account when exercising my discretion against ordering the Board to pay the Plaintiff’s costs of the action.  I had considered a range of factors, in particular: 

16.1   The Board’s special position, and that it is not the case that whenever the Board intervenes to contest claims, it should be liable to pay the plaintiff’s costs when judgment is in favour of the plaintiff (see the Judgment, paragraphs 106, 107 and 109);

16.2   the matters set out in Order 62 rule 5(1) of the Rules of the High Court, especially the conduct of the parties as per rule 5(1)(e) and rule 5(2) (see the Judgment, paragraph 108);

16.3   the Plaintiff’s claim was too high, in particular because of Dr. Chan’s diagnosis that I have rejected (see the Judgment, paragraph 110; see also paragraphs 28 to 33, 35 and 37 of the Judgment, in which I explained the various difficulties that I encountered in understanding the basis for Dr. Chan’s views and the reasons for my rejecting his diagnosis);

16.4   the Board took a “filtering” role and not a positive adversarial stance (see the Judgment, paragraph 111); and

16.5   the Board’s participation was of assistance to the Court, both with respect to the expert evidence and also on factual matters such as the reason why the Plaintiff’s contract as a school caretaker was not renewed by the school (see the Judgment, paragraph 111; on the question of why the Plaintiff’s contract was not renewed by the school, see also paragraphs 74 to 76 of the Judgment). 

17.  As I explained at paragraph 111.2 of the Judgment, I did not find the Board’s conduct to be such that the Board should bear the Plaintiff’s costs, and I remain of that view. 

18.  Mr Lim relies upon DHCJ To’s view in Wo Chun Wah v Chau Kwei Yin [2018] 3 HKLRD 897, paragraph 51, that the parties may reasonably differ within a range of which the upper limit is an amount not exceeding the Court’s award by one-third and the lower limit is an amount not less than two-thirds of the award.  Mr Lim emphasises that the award is now within the one-third / two-thirds guideline given by DHCJ To. 

19.  However, as Mr Lim very properly accepted, the range referred to by DHCJ To was only a guideline.  DHCJ To himself described these upper and lower limits as being “set arbitrarily and are neither absolute nor conclusive, and they may be varied in the light of the factual circumstances” (see paragraph 51). 

20.  Further, in the same case the Court of Appeal held at Wo Chun Wah v Chau Kwei Yin and Other [2019] 1 HKLRD 48 [2018] HKCA 789, paragraph 35:

“What the Judge said about the range of reasonable differences (not exceeding one-third and not less than two-thirds of the award) was merely a range ‘at random’ (as the Judge had made clear), not an absolute or decisive range, but may be adjusted in light of the circumstances as required.”

21.  In light of the way that both DHCJ To and the Court of Appeal described the one-third / two-thirds range of reasonable differences, in my view those particular proportions are clearly not decisive, especially where: (1) I did not decline to award costs against the Board on the basis that the award fell outside the one-third / two-thirds range of reasonable differences; and (2) my decision on costs was not based either solely or even mainly on the quantum of the award. 

22.  The second matter which Mr Lim relies upon to invite me to vary my costs order is the fact that the Board made an offer pursuant to section 29 of the Employees Compensation Assistance Ordinance, Cap. 365 (the “Ordinance”).[6] Section 29 states:

“(1) Notwithstanding any other law where, in proceedings to which the Board is a party under this Part, the Board makes a written offer to any other party in the proceedings which is expressed to be ‘without prejudice save as to costs’ and which relates to an issue in the proceedings, then in deciding the question of costs the court shall take into account any such offer which has been brought to its attention.

(2)    An offer made under subsection (1) shall not be communicated to the court until the question of costs falls to be decided.”

23.  As Mr Lim put it, the effect of section 29 of the Ordinance is to enable the Board to make an offer that is similar to a Calderbank offer.

24.  In the present case, by a letter dated 11 October 2017, the Board had through its legal representatives made a section 29 offer and had offered to pay the Plaintiff a sum of HK$958,924.70 (all inclusive but net of the amount of employees’ compensation and advanced payment in the sum of HK$656,543 awarded to the Plaintiff in DCEC 421/2014) in full and final satisfaction of the Plaintiff’s claim against the 1^st Defendant in these proceedings and also of the Plaintiff’s prospective application to the Board for assistance under section 20A of the Ordinance.  In the aforesaid letter dated 11 October 2017, the Board’s legal representatives expressly referred to section 29 of the Ordinance and stated that “In this regard, we put your client on notice that a copy of this letter will be produced to the Court hearing the assessment of damages when the question of costs comes to be argued.” 

25.  The sum offered by the Board under the section 29 offer was the same as the total quantum agreed to in the Board’s Answer to the Revised Statement of Damages dated 10 August 2017 (which sum was later revised by the Board in its Answer to the Re-Revised Statement of Damages dated 5 October 2018 to HK$1,493,553.25 in response to the Plaintiff’s amendments to his Statement of Damages made shortly before the assessment of damages). 

26.  Mr Lim points out that the Board’s section 29 offer was substantially below what the Plaintiff has been awarded, and Mr Lim relies upon paragraph 44 of Kwan Kam Pui v Fung Man & Ors [2014] 6 HKC 361, where Bharwaney J stated:

“ It would be an incongruous state of affairs if the Board could take advantage of section 29 of the ECAO [i.e. the Ordinance] and obtain an order for costs in its favour, from the date of any offer of settlement made by letter pursuant to that provision, but not be liable to pay any costs of defending the proceedings should the plaintiff succeed in obtaining a larger sum by way of an award of damages than that offered by the ECA Fund Board under such letter.”

27.  I expressly asked Mr Lim whether his submission is that where the Board is involved, an offer that the Board makes under section 29 of the Ordinance is essentially “make or break”, and he replied in the affirmative.  According to Mr Lim’s submission and on his reading of paragraph 44 of Kwan Kam Pui v Fung Man & Ors, supra, whenever the Board makes a section 29 offer, the section 29 offer essentially becomes determinative of whether costs are awarded against the Board or not. 

28.  However, in my view, paragraph 44 of Kwan Kam Pui v Fung Man & Ors, supra, does not assist the Plaintiff in the way that Mr Lim suggests.  Importantly, paragraph 44 must be read in context.  As can be seen from paragraphs 38 and 40 of that case, Bharwaney J was considering the provisions of the Ordinance, including section 29, in the context of considering the question of whether the Court has jurisdiction to award costs against the Board which has joined as a party to the proceedings.  It is one thing for a Court to take the view that as a matter of jurisdiction, it should be possible for the Court to order costs against the Board since it is possible for the Board to take advantage of section 29 of the Ordinance and obtain costs in its favour.  However, it is quite another to say that the statement by Bharwaney J should be taken to mean that whenever a plaintiff succeeds in obtaining an award that is greater than a section 29 offer by the Board, the Board should pay the plaintiff’s costs. 

29.  Section 29 states that in deciding the question of costs the Court “shall take into account” any section 29 offer which has been brought to its attention, but section 29 does not dictate precisely how a Court should take into account such an offer.  Section 29 does not, for example, state that a section 29 offer outweighs all other factors that a Court should take into account when considering the question of costs pursuant to Order 62 rule 5.  Nor is such a position borne out by any authority that either parties have been able to cite to me.  I would add that both parties have confirmed to me that they are not aware of any authorities on the application of section 29 other than what has been cited to me, namely paragraph 44 of Kwan Kam Pui v Fung Man & Ors, supra. 

30.  Indeed, when Mr Lim was making oral submissions on Order 62 rule 5(2) during his reply submissions, he accepted that if the Plaintiff had beaten the Board’s section 29 offer by for example only HK$50,000, then the question of the Board’s conduct would need to be considered.  This does not seem entirely consistent with his earlier confirmation that his position is that a section 29 offer is “make or break”. 

31.  In addition, I agree with Mr Phang that at paragraph 43 of Wo Chun Wah v Chau Kwei Yin and Other [2019] 1 HKLRD 48 [2018] HKCA 789, where the Court of Appeal specifically endorsed certain paragraphs in Kwan Kam Pui v Fung Man & Ors, supra, paragraph 44 (which Mr Lim relies on) was not amongst the endorsed paragraphs. In my view, the Court of Appeal has not said anything which supports Mr Lim’s reading of paragraph 44 of Kwan Kam Pui v Fung Man & Ors, supra. 

32.  Under the circumstances, in considering the question of costs, I take into account the section 29 offer made by the Board in the present case, but on the facts of this case, such offer does not cause me to change my view that this is not an appropriate case for ordering costs against the Board.  I refer to the summary of my views at paragraph 16 above. 

33.  Thirdly, Mr Lim has pointed out that the Board “chose not to go to mediation but contest the Plaintiff’s claim in Court”.[7] Mr Lim has not mounted his argument by adducing evidence to show, for example, that the Board refused to go to mediation; rather, he has only stated that the Board “chose not to”, or “did not” (as per Mr Lim’s oral submissions), mediate.  No evidence has been adduced concerning why there was no mediation.  Under the circumstances, I do not consider that this point assists the Plaintiff on the question of costs. 

34.  Fourthly, Mr Lim seeks to reopen the question of whether the Board had acted in an adversarial manner and whether this should cause me to order costs against the Board.[8] At paragraph 111 of my Judgment, I have already given my reasons for why I consider that in the present case, the Board had taken on a “filtering” role rather than a positive adversarial stance.  I see no proper basis for me to reconsider the question of whether the Board has acted in an adversarial manner.  In particular, I am conscious of the reminder in paragraph 47 of Noga v Abacha, supra, and paragraphs 16 and 17 of Bill Chao Keh Lung v Don Xia, HCA 9289/2000, 3 October 2002, that the reconsideration jurisdiction should not be used in such a way as to subvert the appeal process. 

35.  I have discussed in turn the abovementioned factors raised by Mr Lim, but even taking all of Mr Lim’s points together, I do not consider that there are exceptional circumstances or strong reasons which cause me to change the costs order that I have given in my Judgment. 

36.  Finally, I turn to briefly address a point raised by Mr Phang on behalf of the Board.  At the hearing, Mr Phang informed me that in Wo Chun Wah v Chau Kwei Yin, the Board is applying to the Court of Final Appeal for leave to appeal with respect to, inter alia, the question of whether section 29 of the Ordinance applies to situations where the Board is sued as an interested party, and (even if it applies) how it should affect the Court’s decision on costs.  Mr Phang informed me on instructions that since the Board is seeking to make those arguments in Wo Chun Wah v Chau Kwei Yin, even if the Board’s section 29 offer in the present case had exceeded my award, the Board would not have sought to reap the costs benefit under section 29 of the Ordinance.  However, Mr Phang accepted that this is hypothetical in that the Board never wrote to the Plaintiff to withdraw its section 29 offer.  Given that the Board never withdrew its section 29 offer, and bearing in mind the warning about costs that the Board had sounded to the Plaintiff when making its section 29 offer (see paragraph 24 above), I do not consider it appropriate for me to take into account the Board’s suggestion that it would not have sought to rely on section 29 in its favour had its section 29 offer turned out to be greater than my award. 

D.   Leave to appeal

37.  At paragraph 3 of the Plaintiff’s Summons, the Plaintiff had asked for “If necessary, leave to the Plaintiff to appeal on the issue of costs.”  At paragraph 1(c) of his written submissions, Mr Lim had stated in this regard that “If necessary, if the Court maintains the costs order under paragraph 114.2, the Plaintiff will ask for leave to appeal the costs order.” 

38.  However, Mr Lim informed the Court and the Board during the course of oral submissions that he will only be in a position to pursue his application for leave to appeal after having had the opportunity to consider the reasons for my decision with respect to the Summons.  Mr Lim therefore stated that he was not pursuing paragraph 3 of the Plaintiff’s Summons at the hearing.  I expressly sought clarification from Mr Lim as to whether the leave to appeal referred to in paragraph 3 of the Summons was with reference to the costs order in my Judgment, or (as he seemed to be suggesting in his oral submissions) with reference to my decision concerning the Summons.  Mr Lim confirmed that it was the latter, and stated that he was merely laying down a marker with his paragraph 3 of the Summons. 

39.  I agree with Mr Phang that it is most unusual to put a marker down in a summons in this way (namely about a Court decision that is yet to be made), and that there is no need for any such marker.  In any event, under the circumstances, no application for leave to appeal was pursued at the hearing and thus I do not need to deal with paragraph 3 of the Plaintiff’s Summons. 

E.   Conclusion

40.  In conclusion, I make an order in terms of paragraph 12 above, but dismiss paragraph 2 of the Summons.  On the question of costs of the Summons, I invite submissions from the Plaintiff within 7 days, submissions from the Board 7 days thereafter, and submissions in reply from the Plaintiff 7 days thereafter.  I will deal with the question of costs on paper.