WONG KING CHEUNG v. CHAU KAM CHOI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 101 OF 1998

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JUDGMENT ON COSTS

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1. By judgment dated 22^nd September 1998, I dismissed the Plaintiff's claim for damages for personal injuries sustained in a traffic accident that occurred on 21^st April 1987. In the same reserved judgment, I made an order nisi that each party bears its own costs. I heard counsel for the parties on 17^th December 1998 when the Defendant sought costs against the unsuccessful Plaintiff.

2. On the issue of costs, Miss Sze for the Defendant very helpfully prepared detailed skeleton arguments. In essence, Miss Sze relied on the case of Ritter v. Godfrey [1920] 2 K.B. 47 where Atkin, L.J. held that a court must award costs in favour of a successful defendant unless the defendant:-

Miss Sze submitted that the Defendant did not fall within any of the three exceptions and hence costs should follow the event.

3. I must confess that at the time of making the order nisi I had not researched into the law governing the subject. An order for costs to follow the event naturally came into my mind as the first option. But, knowing the circumstances of the successful Plaintiff, I thought that an order for costs against him may well turn out to be academic. Nonetheless, the Defendant is entitled to an appropriate order as a matter of principle. So I took into account all the factors and circumstances in this case. This case was peculiar in that each side put forward a different version of facts as to how the accident occurred. In the case of the Plaintiff, he changed his version during the course of trial and Miss Lau, his counsel, argued on liability on alternative bases of facts. At no time did either party concede that the other side's version of facts was true. At the end of the trial, I found that the accident happened in a manner markedly different from that respectively canvassed by the parties. In effect, I found that the Defendant lied. The Plaintiff contradicted himself too, but bearing in mind he did lose his memory for a significant period of time as a result of the accident, I would not say he deliberately lied to bolster his claim.

4. In the light of my findings of fact, rightly or wrongly, Miss Lau for the Plaintiff suggested that this case falls within exception (b) in the test laid down by Atkin, L.J. I think Miss Lau must be right. I do not think a Defendant who deliberately fought a case on false premises should be awarded costs. The Defendant won, but not on the merits of its case. The Plaintiff lost, but he may be forgiven for not getting the facts right.

5. In the premises, this is one of those cases where the court, in exercise of its discretion to do justice, should order each side to bear its own costs. Accordingly, the order nisi for costs was made absolute.

6. Ironically, Miss Lau submitted that since the Defendant failed to have the order nisi varied, the Defendant should bear the costs for the hearing of arguments on costs. Miss Sze, naturally, objected. In my view, the hearing of arguments over the costs order nisi must be treated as part of the trial. Had the court heard arguments before making an order for costs, that order would cover the costs of the arguments too. In this respect, I agreed with Miss Sze. Therefore, I ordered that each side also bears its own costs for the hearing on costs.