CHAN TAK CHUN v. CHAN WAN LEI

HCMP 1501/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1501 OF 2009

(ON AN INTENDED APPEAL FROM HCPI NO. 432 OF 2008)

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BETWEEN

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D E C I S I O N

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Hon Rogers VP:

1.  This is an application for leave to appeal from a decision of Burrell J given on 8 July 2009. Coupled with that was an application for leave to appeal out of time.

2.  The order made by the judge was that:

“ 1. The plaintiff be at liberty to accept a total sum of HK$760,000 (“the Settlement”) paid into Court by the Defendant in satisfaction of the Plaintiff's claim in this action;

2. Credit be given to the sum of HK$200,000 being interim payment already received by the next friend for the benefit of the Plaintiff;

3.  All interest earned from the payment into court of HK$600,000 on 20 March 2007 be paid to the Defendant through his solicitors, Messrs Tsang, Chan & Woo;

4.  The Defendant do pay the Plaintiff’s costs of and incidental to this action including but not limited to all costs reserved and all costs of and incidental to the engagement of experts Dr. Tommy Chan and Mrs Shelley Chow, but excluding orders for costs already made, to be taxed on the common fund basis and on High Court scale.”

3.  The draft notice of appeal seeks to raise two grounds of appeal. The first ground is that the order made by the judge would have the effect that costs incurred whilst the action was alive in the District Court would be taxed on the High Court scale despite the fact that the claim as set out in the Statement of Damages was within the District Court jurisdiction.

4.  The second ground set out is that it was said that it was unfair that the costs payable by the plaintiff to the defendant would remain on the District Court scale whereas the order for costs made makes the costs payable by the defendant to the plaintiff in respect of matters which took place whilst the case was proceeding in the District Court were to be on the High Court scale.

5.  In the first place, orders for costs are very much a matter in the discretion of the judge making the order. In this case I do not consider that the judge has made any error in principle. It would be standard for all existing orders to remain undisturbed unless there were special reasons for altering them. Furthermore, unless there were special circumstances it would have been impossible for the judge to vary any order for costs made by another judge. Costs orders made previously could only have been altered on appeal. There would have to be strong grounds for any such appeal.

6.  As regards the scale for the costs ordered by the judge, the judge would normally order those costs on the scale appropriate to the court to which the case had been transferred. In so far as the costs had been incurred before transfer, it would still be appropriate to award those costs on the basis of the scale of the court to which transfer had been made, because the fact of transfer is a good indication of the importance of the case and the level of attention and difficulty attributable to it.

7.  I regret that I consider this application is totally without merit and I would make an order that no party may request the determination to be reconsidered at an oral hearing inter partes.

Hon Le Pichon JA:

8.  I agree.