IP HIU YING v. THE HOSPITAL AUTHORITY

HCMP 2164/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2164 OF 2005

(On an intended appeal from HCA NO. 9 OF 2001)

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REASONS  FOR  JUDGMENT

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Hon Tang JA (giving the reasons for judgment of the Court)

1.  In HCPI 252/2000, the plaintiff sued the Hospital Authority (“the HA”) for medical negligence on 29 May 2001.  HA admitted liability on 29 May 2001 and judgment was entered on 22 June 2001.

2.  This action was commenced on 2 January 2001 and was based on the plaintiff’s allegation that HA and Deacons, their solicitors at the time, had obstructed the plaintiff’s attempt to interview Dr Lau Man Kam, a doctor employed by HA.

3.  On 19 January 2001, the plaintiff applied for an interim injunction which was refused.  The plaintiff filed a Notice of Appeal but the appeal was not pursued.  In the meantime, both defendants applied to have the claim struck out on the ground that they were frivolous and vexatious and disclosed no reasonable cause of action.  That went before the Registrar on 3 May 2001 who adjourned the matter to a judge.

4.  The action went to sleep until 26 March 2004 when the plaintiff applied for leave to discontinue.  The sole issue before Deputy Judge Muttrie was costs.  He made no order as to costs.  The plaintiff was dissatisfied with the order and applied for leave to appeal from the judge.  That was refused on 30 September 2005.  The plaintiff applied for leave to this court under section 14(3)(e) of the High Court Ordinance, Cap. 4.

5.  Rogers VP refused leave on 12 October 2005 with the comment that:

“This was an exercise of discretion as to costs which appears to have been made on the particular facts of the case.”

6.  Mr Sarony SC, who appeared for the plaintiff, submitted that the judge had applied the wrong test.  Mr Sarony referred to the judgment where the judge said that plaintiff had failed to show that she was bound to win.  That he said was the wrong test.  However, it is obvious that the judge was there dealing with the plaintiff’s contention that this was a case where it was obvious the plaintiff would have won had the substantive issues been fought to a conclusion.  As Schiemann LJ in R (on the application of Kuzeva & another) v Southwark London Borough Council [2002] EWCA Civ 781, 30 May 2002, said at para. 18:

“At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion.  In between, the position will, in differing degrees, be less clear.  How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.”

So, we do not believe the judge could be faulted for trying to decide whether this was a case which fell into that end of the spectrum.  Indeed, Mr Sarony has rightly accepted that had the judge concluded that the plaintiff was bound to succeed in the action, he would have made an order for costs in favour of the plaintiff.

7.  We believe the judge had identified the correct tests and applied them.  He said at para. 15:

“But the discretion is wide and Order 21 Rule 3 gives the court a complete discretion to do justice between the parties.  See Trend Publishing (HK) Ltd. v Vivien Chan & Co. (A Firm) [1996] 3 HKC 433.”

Again at para. 21:

“ If a plaintiff discontinues in circumstances where the matter has become academic, rather than because he acknowledges defeat or likely defeat, the general rule that the defendant is entitled to costs may again be departed from.”

The judge then went on to deal with the particular circumstances of the case, and decided that no order as to costs should be made.  It is obvious from the judgment that there were reasons not to give the plaintiff her costs and reasons for not giving the defendants their costs.

8.  Mr Sarony also submitted that the judgment was inconsistent, when the judge said at para. 55:

“It is probable that the plaintiff would establish that Ms Ng of the HA was trying to prevent Dr Lau from giving a statement to Masons and certainly Masons got that impression.”

9.  Mr Sarony said that was a finding of fact that the plaintiff would be able to establish her case on a balance of probability.  That, he said, is inconsistent with the judge’s earlier finding that the plaintiff was not bound to win.  So, he argued, the judge must have thought that the plaintiff had to prove beyond reasonable doubt that she would win.  We do not agree.  We believe the judge was saying no more than that the plaintiff might succeed (so it was not a case where the plaintiff acknowledged defeat or likely defeat) and not that she would.

10.  This is not a case where one could say that the judge had applied the wrong test.  We agree with Rogers VP that this is a case where the judge had exercised his discretion on the particular facts of the case.

11.  For the above reasons, we refused leave.  We also ordered that the plaintiff’s costs be taxed in accordance with the Legal Aid Regulations.