WONG SHU KEUNG v. KAM LUEN CONSOLIDATOR LTD AND OTHERS

DCEC 638/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 638 OF 2010

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DECISION

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Introduction

1.  By my judgment delivered on 12 November 2015 (“the judgment”), I dismissed the applicant’s claim against the 1^st respondent. I also made a costs order nisi that the applicant should pay the costs of the 1^st respondent, to be taxed if not agreed.

2.  The applicant initially wrote to apply to vary the said costs order nisi.

3.  At the direction of this court, the applicant took out a summons on 1 December 2015 seeking leave to vary the said costs order nisi to the effect that the 1^st respondent should pay the applicant’s costs of this action.

Legal principles

4.  Order 62 rule 3(2) of the Rules of the District Court provides :

“(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 party of the costs.”

5.  “A party seeking to displace the general rule that costs should follow the event naturally bears the burden of showing that the circumstances justify the exceptional course of such displacement” : see Mariner International Hotels Ltd v Atlas Ltd (No 2) (2007) 10 HKCFAR 246 at para 18.

6.  In considering if and how to apply the principles derived from the leading case of Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, the court should always bear in mind that fairness is the touchstone. That is to say, the court must exercise the discretion to achieve a just result having regard to the overall circumstances of the case : see the Court of Appeal decision in Siu Kai Ming v Lau Sai Hing, CACV 143/2013, 21/5/2014 at para 11.

The applicant’s grounds

7.  The applicant submitted that the 1^st respondent had acted improperly or unreasonably which led to costs unnecessarily incurred.

8.  Basically, the applicant is saying that the 1^st respondent had misled the applicant into believing that it was his employer since the time the accident happened up to the filing of its Answer to the proceedings on 21 September 2010.

Discussion

9.  For the reasons stated in paras 19 to 47 of the judgment, I have no doubt that the applicant was coached to believe that he was employed by the 1^st respondent.

10.  I am satisfied that based on the information at hand before the commencement of the proceedings, the applicant should not be blamed for suing the 1^st respondent alone at the beginning.

11.  That being the case, I am satisfied that exceptional circumstances exist justifying a departure from the usual rule of costs to follow the event.

12.  Having said that, however, I am not persuaded that the 1^st respondent should be ordered to pay the applicant’s costs. After all, the 3^rd respondent is already ordered to pay the applicant’s costs of the proceedings.

13.  For the above reasons, I order that the costs order nisi is varied to the extent that there be no order as to costs between the applicant and the 1^st respondent.  I am satisfied that in doing so, a just result is achieved in the circumstances of this case.

Costs of summons

14.  The applicant is not asking for costs of this summons. Accordingly, there be no order as to costs of this application.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.