ANJALI AMBER SOFIA SINGH (a minor) BY RAMINDER SINGH, her father and next friend v. THE MATILDA & WAR MEMORIAL HOSPITAL AND OTHERS

HCPI 717/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 717 OF 2003

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R U L I N G

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1. This is an application by Summons by the 1^st defendant for an order that, subject to the authorization of the Chief Justice, the trial of this action takes place at the Royal Courts of Justice, London, England.

2. This application of the 1^st defendant is opposed by the plaintiff.

3. The plaintiff, an infant, was born on 2 July 1998.  When born, the plaintiff was diagnosed to have severe cerebral palsy of a dyskinetic/ athetoid nature affecting her whole body.  She is doubly incontinent.  She suffers from epilepsy.  She has a wide range of secondary behavioural and psychiatric problems.  She has learning disabilities.  She will require total care and assistance in all aspects of her daily life.  It is unlikely that she will ever be gainfully employed due to such disabilities.

4. It is the plaintiff’s case that these disabilities of the plaintiff were occasioned at about the time of her birth by the combined negligence of the 1^st defendant hospital, where the plaintiff was born, and by her mother’s treating obstetrician, the 2^nd defendant, who was at that time the servant or agent of the 3^rd defendant.

5. An order for split trial having been made for the issue of liability to be separately tried from the issue of quantum, the trial referred to in this application refers to the trial on liability.

6. The estimate length of the trial is 20 working days, and dates have been tentatively fixed for the trial on liability to be from mid-April to mid-May 2007.

7. The application is made under Order 33, rules 1 and 4 of the Rules of High Court.  The application seeks for the entire trial on the issue of liability be held at the Royal Courts of Justice in London.

8. As already stated this application is opposed by the plaintiff.

9. As for the 2^nd and 3^rd defendants, who are jointly represented in this matter, they take a neutral stance as to whether the trial is to take place entirely in London or in Hong Kong, but would not agree to having it partly in London and partly in Hong Kong.

10. None of the parties concerned are asking that the trial be heard partly in London and partly in Hong Kong.  In fact it is agreed by all concerned that the trial should not be held partly in London and partly in Hong Kong.

11. Therefore what is in dispute here is that while the 1^st defendant, by its application, is asking for the trial to be held in the Royal Courts of Justice in London, the plaintiff wants the trial to be held in the High Court Building in Hong Kong.

12. The plaintiff has already engaged leading counsel from London to lead both a leading counsel and junior counsel from Hong Kong.

13. The 1^st defendant will be represented by leading and junior counsel from Hong Kong.

14. The 2^nd and 3^rd defendants will be represented by leading counsel from London leading a junior counsel from Hong Kong.

15. As for factual witnesses, the plaintiff will have two, being both parents of the plaintiff who are now resident in Huddersfield in England.

16. The 1^st defendant intends to call four factual witnesses, three of whom are based in Hong Kong and the fourth based in New Zealand, although there is some doubt as to that witness who is now in New Zealand.  I am told that she may not want to travel outside New Zealand to give evidence for the 1^st defendant, whether in Hong Kong or in London.

17. The 2^nd and 3^rd defendants will be calling four factual witnesses, including the 2^nd defendant himself, all of whom are presently based in Hong Kong.

18. As for expert witnesses, there are altogether 12 expert witnesses to be called by the parties.  Of these12 experts, only one is based in Hong Kong.  The rest are all based in the United Kingdom.

19. The plaintiff will be calling four experts all of whom are based in England.

20. The 1^st defendant will be calling two experts, one based in England and one in Scotland.

21. The remaining six experts are to be called by the 2^nd and 3^rd defendants.  Of those, one is based in Hong Kong while the other five are based in England.

22. The primary consideration in the exercise of the court’s discretion as to where a trial should be held is that the place of trial should be that which best promotes the fair disposal of the action.

23. In this respect, consideration need be given to two important factors, being costs and convenience.

Costs

24. I have been supplied with a table of the overall comparative costs of the parties.  These figures are the best estimates arrived at by the parties taking into account all the circumstances of the case.

25. The most recent figures estimated by the parties show that the overall costs to be expanded if the trial were to take place in London to be $17,514,000 but if the trial is to be in Hong Kong, the overall costs comes to $16,877,500.

26. Those same figures, after adjustment is made to the plaintiff’s estimate taking into account the Order 39 and the venue costs, the overall costs of the trial in London is toned down to $17,326,500.

27. Although the table also provides for estimates of the costs of the trial being partly in Hong Kong and partly in London, it is not necessary for me to deal with those estimates since none of the parties advocate that course.

1^st defendant’s contentions

28. Mr McLeish, appearing for the 1^st defendant submits that since the difference between the costs estimated for the trial in London and the trial in Hong Kong is only $449,000, when the total estimated costs is in the region of some $16 million or $17 million, the costs factor is somewhat neutral and does not point strongly in favour of either Hong Kong or London and is therefore not a decisive factor.

29. It is submitted by Mr McLeish that it is the convenience factor which justifies holding a trial in London.  His submission can be summarized as follows:

(1)     Managing the attendances of the 11 experts who are resident in the United Kingdom (including their hearing of the factual and other expert evidence) would be simpler if the trial was held in London.

(2)     Disruption to the lives of the experts would be reduced.

(3)     The legal teams of the parties would have easier access to their respective experts during the course of the trial.

(4)     There will be less disruption to the lives of the plaintiff’s father and mother who are the two factual witnesses of the plaintiff.

(5)     It would be of benefit to the plaintiff and the 2^nd and 3^rd defendants who have both instructed London silks.

(6)     The 1^st defendant, not having instructed London silk, is already at a disadvantage, since the London silks of the other two parties would have easier access to those experts now in the United Kingdom.  Therefore the 1^st defendant would be doubly disadvantaged if denied the greater ease of access to its experts by having the trial in London.

Plaintiff’s contentions

30. Miss Remedios, appearing for the plaintiff, submits that the difference in costs for the trial being in London or in Hong Kong, although presently estimated to be under $500,000, that estimate was given based on a 20 day trial, but if the trial should overrun, that difference in costs could be greater since the whole legal team of the parties from Hong Kong as well as the court and its supporting staff will have to be continuously accommodated in London during such times as the trial may overrun.

31. Moreover, this being a legally aided case for the plaintiff, a difference in the costs of some half a million dollars is not to be sneezed at considering that it is taxpayer’s money that is being used, and therefore should not be wasted.

32. As for the factual witnesses, they will have to be transported and accommodated in London if the trial takes place there when most of the factual witnesses of the defendants are based in Hong Kong.

33. The plaintiff’s parents will still have to find baby sitter to look after the plaintiff whether the trial is in Hong Kong or London since they live in Huddersfield.

34. As for the expert witnesses, there are no good reasons why they cannot come to Hong Kong to give their expert evidence here.

Decision

35. It is quite clear from the costs estimates prepared by all the parties that the costs of holding the trial in London, assuming 20 days will be sufficient for the entire hearing, will be more expensive by about $450,000.  Therefore there is no advantage to be gained where costs is concerned for the trial to be in London.

36. As for the question of convenience, which is the main thrust of the argument put forward by the 1^st defendant, whether the trial takes place in London or in Hong Kong, there will surely be some disruption to the lives of either the factual witnesses or the expert witnesses since most of the factual witnesses are based in Hong Kong but most of the experts are based in the United Kingdom.

37. In that sense, the disruption which will be caused to witnesses generally will probably balance out.

38. That really leaves the managing the attendances of the expert witnesses as the one important factor in the determination of this application.

39. In this respect, I have heard nothing from the plaintiff or the 2^nd and 3^rd defendants that they will have difficulty in managing the attendance of their experts if the trial takes place in Hong Kong.  Indeed both of them are happy for the trial to be in Hong Kong.

40. It should also be noted that nine out of the eleven experts who are resident in the United Kingdom are the experts of the plaintiff and of the 2^nd and 3^rd defendants.  There are only two experts to be called by the 1^st defendant being Dr Peter Daniellian (from Aberdeen) and Dr Janet Rennie (from London).

41. Nor have I heard any submission by the 1^st defendant that the two experts to be called by the 1^st defendant are in any kind of difficulty in coming to Hong Kong on the dates that the trial is set down for.  Indeed the trial dates were made known to the parties as early as 29 November 2005, albeit as tentative dates for the trial.  However I would have expected that all the experts involved in this case would have been appraised of those trial dates at the earliest possible moments to ensure their availability at the trial itself.

42. Once the 1^st defendant can ensure the attendance of its two experts in Hong Kong at the start of the trial (or shortly before the trial starts if that should be deemed necessary) I cannot see the difficulty submitted by Mr McLeish materializing.

43. Moreover the costs of the trial if it takes place in Hong Kong can be lessened by about $450,000.

44. For these reasons, I am not persuaded that this trial should be held in the Royal Courts of Justice in London.

45. Accordingly, the 1^st defendant’s application is refused and the Summons is dismissed with costs (order nisi) to the plaintiff and the 2^nd and 3^rd defendants in any event.