XCHRX WAI YIN WA v. LAMINATE ENTERPRISES LTD.

H.C.P.I. No.514 /1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 514 OF 1997

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REVIEW OF NISI COSTS ORDER

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Application

On 8th November 1999, I made a nisi costs order in the following terms:

"1. The Defendant do pay 80% of the total costs of the assessment to the Plaintiff, to be taxed if not agreed.

2. The Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

3. There will be certificate for counsel."

The Plaintiff applied to review the said nisi order.

Variation made

1. After hearing submissions from Mr. Budge for the Plaintiff and Mr. Kwok for the defendant, I decided to vary the said costs order to the extent that the Defendant do pay the costs of the assessment to the Plaintiff on a Common Fund basis, to be taxed if not agreed.

Reasons for the variation

2. As for the variation from 80% to total costs of the assessment, I accepted Mr. Budge's submission that the Plaintiff did have the support of an imminent medical expert who had assessed her case to be that of MDD. The fact that the court eventually found in favour of the Defendant on this issue is not a ground to deprive her of the costs in putting this argument forward.

3. As to the variation from "Party to Party" basis to that of "Common Fund" basis, I also agreed with Mr. Budge's submission. The Plaintiff, who is undoubtedly suffering from mental illness, is suing through a next friend. She is legally aided. After considering the authority of Tai Chau Yung and Chu Yau v Ng Jim et al (HCPI No. 753 of 1997), I am of the view that a court in exercising its discretion should award costs on a Common Fund basis to safeguard the interest of an aided Plaintiff who is under a disability. I am also of the view that the same approach should be adopted whether the case was compromised by settlement or concluded after a full assessment.

Costs of the application

4. The Plaintiff will also have the costs of this application on a Common Fund basis, to be taxed if not agreed.