CHRISTOPHER GORDON YOUNG v. LEE CHU

CACV131/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2003

(ON APPEAL FROM HCPI NO.1484 OF 2000)

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D E C I S I O N

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1. This is an application by summons dated 1 December 2003 by the defendant for discovery in relation to an appeal which is due to be heard early next year.

2. On 25 March 2000, an accident occurred in which the defendant who was driving a motor car along Tai Tam Road collided with the plaintiff who was at the time riding a motor cycle. In the subsequent action for personal injuries, on 15 April 2003, Deputy High Court Judge Wright found in favour of the plaintiff in terms of liability and awarded damages amounting to $4,147,384.76 together with interest. The defendant has appealed from that decision.

3. One of the aspects of damages that the learned judge had to consider was the question of loss of earnings of the plaintiff both pre and post trial. Here, the judge had to consider the actual earnings of the plaintiff (who is a practicing barrister). In the course of this exercise, he had to take into account the fees received by the plaintiff prior to the trial.

4. In the consideration of the aspect of fees, one case in which the plaintiff had been instructed, which is FCMC454 of 1996, had been completed in the sense that the plaintiff had earned his fees but his fees had yet to be taxed under the Legal Aid Regulations. Taxation had not taken place at the time of the trial.

5. The present summons taken out by the defendant asks for documents relating to the taxation itself; alternatively if taxation had not taken place, relating to any settlement or agreement as to counsel's fees. This summons must be dismissed. The documents requested do not exist as no taxation has occurred and there has not been any agreement on the settlement of counsel's fees. More important, the summons was not necessary:- see RHC Order 24 rule 8. The application was not necessary because in correspondence the defendant had been told as early as 17 September 2003 that there had been no taxation. This information had come from the plaintiff's solicitors and this information was further confirmed by a letter from the Registrar of the Family Court dated 5 November 2003. As to the question of the settlement or agreement of counsel's fees, this enquiry had not been made of the plaintiff prior to the taking out of the summons. On the same day as the summons was taken out, however, an inquiry was made of the plaintiff's solicitors to which there was a reply the very next day stating that there had been no agreement in relation to counsel's fees.

6. In these circumstances, the summons had to be dismissed.

[After hearing submissions on costs]

7. I award costs to the plaintiff on a solicitor and own client basis. The reason for this is that it was completely unnecessary to take out the summons. Simple inquiries should have been made and indeed were made to which there was a simple answer. The plaintiff has been put to unnecessary expense by reason of this application, which borders on, if not actually, constitutes an abuse.