YAM YUEN LAI v. BOARD OF GOVERNORS OF THE PRINCE PHILIP DENTAL HOSPITAL AND ANOTHER

HCPI 218/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 218 OF 2010

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DECISION ON COSTS

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Introduction:

1.  In these proceedings the Master dismissed an application by the Board of Governors of the Prince Phillip Dental Hospital (PPDH) to strike out the proceedings as being statute barred by limitation, and allowed Madam Yam to amend the statement of claim to join the University of Hong Kong (UHK) as a defendant in the proceedings.

2.  Both PPDH and UHK appealed against those decisions, but were unsuccessful.  Upon dismissing the appeals, I made an order nisi that Madam Yam was entitled to costs, both here and below.  I have now received and considered written submissions from the parties in respect to those costs.

3.  All parties acknowledge that there is no fixed formula or rule by which costs should be awarded, although the usual practice is that costs follow the event.  All parties acknowledge that costs are in the discretion of the court.

Costs against PPDH:

4.  The order made by the Master against PPDH in respect of costs below was in the following terms:

“The Plaintiff shall pay the 1^st Defendant’s costs of the 1^st Defendant’s Summons up to and including 9 September 2011 and the 1^st Defendant shall pay the Plaintiff’s costs of the 1^st Defendant’s Summons thereafter with a Certificate for Counsel in any event.”

5.  The basis of that order was that there was no dispute that Madam Yam’s claim was time barred in 2004, and accordingly, PPDH was justified in taking out its summons.  The Master was entirely justified and exercised his discretion on that basis, and that order will stand.

6.  PPDH accepts that the proper order for costs of the appeal should be costs to Madam Yam.  Counsel suggests that the time spent by counsel for the defendants during the hearing of the two appeals was equal and treat Madam Yam’s costs incurred in the two appeals as equal.

7.  I agree.  The costs order nisi against PPDH is made absolute.  There will be an order of that the time spent on the two appeals was equal.

Costs against UHK:

8.  The Master awarded Madam Yam costs on the joinder summons against UHK, and apportioned the time between the two summonses at 50% each.  There is no argument on the time apportionment.

9.  Mr Sakhrani says that on the joinder summons before the Master, UHK should have its costs, and that there should be no order for costs on the appeal against the joinder.

10.  First, he says that by §27 of my decision I rejected the contention by PPDH that it merely provided facilities, but based my conclusion that the joinder should be allowed upon different grounds to that of the Master.  Although Mr Sakhrani asserts that proper pleading and amendment is still required I was of the view that the pleadings were sufficient to permit joinder.  It will be for those advising Madam Yam to consider whether or not further amendment is necessary. Otherwise, Mr Sakhrani’s submission is correct.

11.  Mr Sakhrani next refers me to Yip Lai Fong v Sin Tung Hin & Ors [2004] HKLRD 230, §7, where the Court Appeal referred to the decision in Take Harvest Ltd v George H Liu & Anor [1994] 1 HKLR 32, where the appeal succeeded on a point not canvassed below, and the Privy Council ordered each party to pay its own costs in respect of costs below as well as costs of the appeal. At §8, the Court of Appeal said:

“The cases showed that there is no fixed rule or formula for this type of situation. The main consideration is that there is a certain element of unfairness if a successful party on a new point on appeal should get all of the costs in respect of the hearing below as well as the appeal. In our judgment, such unfairness can be mitigated either by depriving successful party the whole or part of the cost of the appeal or the costs of the hearing below. In some cases, it might even be appropriate to order the successful appellant to bear the other party’s costs below.”

12.  I accept that in an appropriate case that principle should be applied.

13.  Next, Mr Sakhrani points out that Madam Yam lost the point on constructive knowledge in the limitation argument, and in order to avoid the effect of the s 27 LTO time bar, it was necessary to exercise the discretion under s 30. 

14.  Finally, Mr Sakhrani relies upon the length of the delay.

15.  Had PPDH and UHK both, correctly and fairly, set out to the court, in clear terms the manner in which they conducted and administered the facilities which provided dental care to Madam Yam, it would have been plain that UHK would be properly joined, and the contention of PPDH that they merely provided facilities, was no answer to the claim.  That said, I acknowledge that Madam Yam has succeeded on the point led by the court.

16.  However, counsel for Madam Yam is right when she says that UHK should not have resisted the joinder application beyond the time when all evidence had been served, (9 September 2011).  It was then clear that the argument that there was no reasonable cause of action or the UHK was the wrong defendant was quite untenable.

17.  As to limitation, it will always be open to a plaintiff when faced with a limitation argument to rely upon the s 30 discretion.  That discretion is merely a part of the whole limitation argument, and the fact that a plaintiff has to have resort to that discretion cannot by itself be a basis to refuse costs.

18.  Weighing these matters into account I am satisfied that the proper order for costs on the joinder summons below should be that Madam Yam should pay 50% of UHK’s costs up to 9 September 2011, and Madam Yam should have her costs from UHK after that date, with a certificate for counsel.

19.  As to the costs on the appeal, in the particular circumstances of this case, the “new point” principle is not such in my view as to disentitle Madam Yam from her costs on the appeal.  All the evidence was in, and the points were obvious, even if not taken in terms suggested by the court. 

20.  Madam Yam’s costs on the appeal by UHK must be paid by UHK.

21.  Madam Yam’s own costs will be taxed on Legal Aid Regulations.

22.  The costs of the submissions on costs are part of the costs in the appeals.