鍾秀玲 訴 峻億有限公司以聚寶海鮮酒家名義經營

DCPI 362/2001 & DCEC857/1998

香港特別行政區

區域法院

人身傷亡訴訟案件2001年第362號及

僱員補償案件1998年第857號

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判案書

1. 原告人在1997年6月12日因工作遇到一宗意外。於1999年12月2日，她在區域法院向被告人展開一宗僱員賠償申索訴訟，在2000年1月22日，她復於高等法院原訟庭向被告人展開一個個人傷亡賠償訴訟。在2001年9月10日，孫國治法官將高等法院的案件轉介區域法院，兩案然後共同處理。

2. 原告人在處理此案時，曾得到法律援助署之協助。

3. 被告人不同意原告人因該意外，而蒙受到原告人所稱之損傷和痛苦。在案件進行期間，原告人曾被自己及被告人聘用之醫務專家評估。原告人的專家在評估報告中，認為原告人有將意外的後果誇大，被告人延聘的醫務專家評估報告對原告人更為不利。

4. 在案件進行期間，被告人曾兩度根據區域法院規則第22號命令，將款項繳入法庭，第二批款項是在2001年11月28日繳付的，而款項的總數是325,000元，但原告人並沒有接受上述款項。其實在興訟前，被告人已根據僱員賠償條例，給予原告人$183,347.60。

5. 在2002年8月7日，法律援助署撤回對原告人的資助，但在2002年10月4日，原告人以不得損害權益的原則下向被告人表示，稱願意接受在$183,347.60額外的530,000元，作為上述兩案的和解條件，但被告人拒絕了這項條件。至2004年1月26日，原告人致電被告人所聘用的律師行，向該行闡明原告人較早前之530,000元和解建議已無效，而原告人會為案件的聆訊作準備。

6. 案件經過六天的審理，本席最後決定不接受原告人的申請，本席亦不接受差不多所由她提出的證據。本席認為她故意地和嚴重地誇大了意外對她產生的後果，而她用以支持論點的證據亦是捏造出來的。她在進行這兩宗案件時，是違反了她自己的醫務專家的意見，不理會法律援助署的撤出，更罔顧被告人向法庭繳付的款項。她在進行這兩宗虛假的申索時，態度是堅決和無情的，她明顯地是被貪婪所驅使。相反地，被告人處理這兩宗案件的態度是合理的。

7. 本席參照案例Sung Foo Kee Ltd. v. Pak Lik Co (a firm) [1996] 3 HKC 570第574 to 576頁Godfrey, J. A.所說的內容：

“Why an order for indemnity costs should have been made

The whole point of an award of costs is to afford an indemnity to the party incurring them: see Gundry v. Salisbury [1910] 1 KB 645.  But to protect the paying party those costs have to be taxed. Since April 1986, the judge, in England and Wales, has had power to direct such a taxation to proceed either on the standard basis, or on the indemnity basis.  On a taxation of costs on the standard basis there is to be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts as to whether the costs were reasonably incurred or were reasonable in amount are to be resolved in favour of the paying party (this is equivalent to the common fund basis here).  On a taxation on the indemnity basis all costs are to be allowed except insofar as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the taxing master may have as to whether the costs were reasonably received or were reasonable in amount are to be resolved in favour of the receiving party: see Order 62 r.12(1) and (2) of the Rules of the Supreme Court there applicable.

In Bowen-Jones v. Bowen-Jones [1986] 3 All ER 163, the judge, Knox J, referring to the reforms instituted in April 1986, declined to review the basis on which orders for taxation should be made in favour of successful litigants.  He said:

“It seems to me there have been a rationalization of the different bases of taxation rather than a complete re-statement of the rules in such a way as to place the matter entirely at large as to how costs should, in general, be dealt with between a successful and unsuccessful litigant.”

But, whatever be the way in which “cases should, in general, be dealt with between a successful and unsuccessful litigant” (which here, in Hong Kong, will normally be by an award of costs to be taxed as between party and party) there will always be cases outside the general rule.

Here, as in England and Wales, the judge has a discretion, in a case which does fall outside the general rule, to direct the taxation of the receiving party’s costs on the basis which he considers to be appropriate to that case.  This is not a discretion limited by indications in previous cases, such as, e.g., the observations of Godfrey, J. in Overseas Trust Bank Ltd. v. Coopers & Lybrand [1991] 1 HKLR 177 (in which he declined to order the successful party’s costs to be taxed on the indemnity basis), as to the sort of special or unusual feature (there does have to be some special or unusual feature) which could justify an award of indemnity costs.  Although the examples given in the judgment of Godfrey, J. at pp.182J to 183C may be of assistance in other cases in which indemnity costs are claimed, his judgment does not purport to be and is not to be taken as determinative of the sort of case in which indemnity costs may be ordered.

In Disney v. Plummer, 16 November 1987, in the Court of Appeal (England and Wales), unreported, it was submitted that indemnity costs would only be appropriate where there had been deception or underhand conduct.  Kerr, LJ in his judgment said:

“I entirely reject that submission.  On the contrary, I wholeheartedly agree with the course which the judge took in relation to this ill-advised and, if I may say so, stupidly conducted piece of litigation. It is the sort of robust attitude which should be taken to pieces of litigation of this kind. The defendants still suffer, even when they win.  But they should at any rate have been given such assistance as can be provided by the rules.  I do not accept, as counsel submitted, that indemnity costs are only appropriate if there is some deception or underhand conduct on the part of the losing party, but not if the litigation is merely fought bitterly or even unreasonably.  In the latter type of cases judges can still exercise their discretion under RSC Ord 62, r3(4).”

Eastham, J. in his judgment said :

“The judge having listened to the various submissions which are summarised, clearly took the view that this was one of the cases in which he could, and should, make a robust order so as to discourage other plaintiffs from pursuing litigation in the way in which this litigation has been pursued on behalf of this particular plaintiff.  In my judgment he had ample material on which he could find that it was appropriate to order costs on the indemnity basis and indeed, after the defendants had been exposed to the very serious consequences of this bitterly conducted litigation, they would have felt a sense of considerable injustice if their costs had been whittled away down to the costs on a standard basis.”

In Macmillan Inc. v. Bishopgate Investment Trust Ltd, 10 December 1993, unreported, Millett, J., in the Chancery Division, said:

“The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be ‘appropriate’.””

8. 本席亦參照案例Choy Yee Chun (The representative of the estate of Chan Pui Yiu) v. Bond Star Development Ltd. [1997] HKLRD 1327。該案的被告人以虛假的逆權佔有權作為答辯理由，以抗衡發展商的收樓申請，目的是要搾取發展商鉅款。該案第1337 to 1338頁Stock, J.所說的內如下：

“This was no ordinary possession action defended by a person in possession of property who asserted that he was or was not in breach of an agreement, or disputed the terms of the agreement.  It is not a case where there was a tenable or respectable argument which might support a finding of adverse possession but which in the event failed - for example, a case in which the alleged tenant had in fact been in occupation but where the circumstances in which he came to be in occupation were at issue, or a case in which his animus possidendi was the key matter for determination.  It is difficult to come to a conclusion other than that the defence was not simply unreliable and false, but deliberately so.  Nor was this just an attempt by a person in possession to retain possession to avoid the cost and inconvenience of having to move.  This was a defence where there was no objective to retain possession at all. The objective was an ulterior one, namely, to place the landlord under the greatest possible pressure to pay compensation well above that which was otherwise merited, well knowing that the very act of litigation and the passage of time which the pursuit of that litigation necessarily involved, itself placed substantial pressure upon a landlord anxious to redevelop the property, unable to do so solely because of the tenant’s continued presence or hold on the premises in question.  It is clear that to that end the appellant fabricated a defence and colluded with other witnesses to strengthen that defence.  The conduct of the litigation for this purpose was but the tail end of a campaign in aid of the same objective, a campaign which had commenced months before the proceedings were instituted, as evidenced by the correspondence between the parties and by the purported registration of a lis, where no lis was in fact pending.  In my judgment, this is a type of oppressive and vexatious conduct to which the power to award indemnity costs is designed.  It is conduct which could well leave a court with a sense of indignation at the appellant’s behaviour.

It has been suggested by Mr Hung that there was in fact no finding by the judge of a base motive or of a bogus claim; none in any event to be found in the judgment itself.  I do not agree.  A reading of the judgment, in the context of the transcript as a whole and of submissions, demonstrates quite clearly that the judge must have found the defence to have been deliberately fabricated.  There could be no other basis for his findings. It could not be, in the circumstances, a case of mistake or honest error.  Mr Chan had either lived at the premises since 1983 or not.  He had not, even though he said so.  The witnesses were either lying or not.  There was no room in this particular case for misinterpretation by them of the same given facts.  The judge had expressly referred to a “try on” when canvassing the question of indemnity costs, and then made that very order.  He quite clearly found the defence to be bogus.

It has been suggested further in argument that the order in its effect is to penalise a tenant for not succumbing to proposals for compensation put by the landlord respondent, proposals which the appellant was not obliged to accept, and that the proceedings which were instituted were proceedings which the respondent, if it wished to redevelop was, in any event, obliged to pursue.  That is not, in the circumstances as they developed, to the point.  The proceedings launched were not in fact based on a desire to redevelop.  The entire hearing, lasting some five days, was devoted to defeating the appellant’s contention that he was not a tenant at all.  The appellant chose to stop paying rent and to deny the landlord’s title.  He himself provided the parameters of the claim, and the grounds upon which the respondent wished to obtain possession were not in dispute.  It was admitted that no rent had been paid, and that the title had been denied.  So the sole issue was an issue created by the tenant.  Nor was it a case of a tenant saying “I do not wish to move until such time as you have a possession order”.  Furthermore, it was not just a case of a fabricated defence.  It was a case of a fabricated defence which, if successful, was the very one defence which the supposed landlord could in no circumstances which might thereafter arise tackle. It was not even a question of lying about one of the grounds for possession prescribed by the Ordinance. It was a fabrication of a ground about which, in the future, the landlord would have no recourse.  The choice of that defence was, in my judgment, a deliberate choice of a ground which was, in the circumstances, a ground which the judge was quite entitled to find was particularly oppressive and threatening, and which entitled him to award costs on an indemnity footing.

Then it is said that somehow the judge ought not to have taken into account events prior to the institution of the proceedings.  I do not agree.  In determining whether the conduct of proceedings or the motive behind that conduct is or is not of a particular colour, the court cannot put on blinkers and shut out earlier behaviour by a litigant which might well explain conduct within the litigation itself.  In any event, in the course of normal litigation, whilst “the grounds upon which costs are awarded must be connected with the case, this may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further” (See Scherer v. Counting Instruments Ltd. [1966]1 WLR 615 per Buckley LJ at 619).”

9. 本案並非一個因錯誤理解而提請的案件，而是由原告人堅決地進行的兩宗虛假的索償訴訟。原告人在處理這兩宗案件時，並沒有聽取她自己的醫務專家的意見，也沒有理會到法援署的退出，亦罔顧被告人預先繳付入法庭的大筆款項。在這情況下，法庭一定要清晰地表示不贊同這些行為，所以本席認為彌償基準計算方式，用於此兩個案是合適的。所以本席現在修改早前頒布的臨時訟費令，改為要原告人以彌償基準繳付這兩宗案件的訟費予被告人，本席亦判令原告人須要付予被告人今天所作的申請的訴訟費，而這筆訟費亦要以彌償基準評估。本席更裁定被告人延聘大律師，以處理這兩宗案件及今天所作的申請，是合適的。