LAM CHIK CHEUNG v. THE SECRETARY FOR JUSTICE FOR AND ON BEHALF OF THE DIRECTOR OF HIGHWAYS AND ANOTHER

HCPI1003/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1003 OF 1998

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JUDGMENT

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1. On 10 May 2000 I handed down judgment dismissing the plaintiff's claim in damages against both defendants. I awarded costs to the defendants party and party nisi at first instance. The defendants having applied to argue the issue on costs, this is the matter for consideration before me.

2. It is the defendants' case put by Mr Ramanathan that I should award costs to them calculated on an indemnity basis. This proposition stems from the findings of fact in which I not only rejected the evidence of the plaintiff and two of his colleagues called in support on vital matters of fact, but found further that there were, on the face of them, indications that the three of them had conspired to concoct an entirely fictitious account for financial advantage.

3. This, as Mr Ramanathan submits, is an abuse of the process of the court. In the course of his written submissions he reminded me of a well-known passage from the judgment of Godfrey J, as he then was, in Overseas Trust Bank Ltd v. Coopers and Lybrand & Others [1991] 1 HKLR 177, where he said:

"In my opinion in order to justify taxation on the indemnity basis, the successful party has to show, either that the case is one of a type already recognised in the practice of the court as warranting a taxation on that basis (such as, for example, the contempt cases) or that there is some feature in the case even more special or unusual than one which would justify a taxation on the common fund basis. A case in which the successful party has demonstrated that the proceedings were initiated or prosecuted by the unsuccessful party in a manner which constitutes an abuse of the process of the court might well be a candidate for an award of taxation of costs on an indemnity basis. A taxation of the successful party's costs on an indemnity basis could properly be ordered, in my opinion, where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party's costs on an indemnity basis."

4. Mr Ramanathan goes on to submit, and I could do no better than quote direct from his submissions, as I now do:

"6. In the present case it is submitted that the conduct of the plaintiff in instituting these proceedings and then persevering with them to the extent of getting two of his colleagues to come along and sign false witness statements about the presence of the pothole on the road, was and is, clearly an abuse of the court process with the ulterior motive of financial gain.

7. The plaintiff was clearly aware from the outset that he did not have a claim at all against the defendants. This was a matter that was peculiarly within the knowledge of the plaintiff and his two witnesses. Despite that knowledge, the plaintiff and his witnesses have embarked upon a course of conduct intended to dupe the court into awarding the plaintiff substantial damages which the plaintiff well knew he was not entitled to. In effect, the plaintiff and his witnesses had conspired to pervert the course of justice and would have succeeded, except their well laid plans got exposed during the trial.

8. It is submitted that the findings of the court are the clearest findings by a court that the actions of the plaintiff and his friends were tantamount to a fraud being perpetrated by utilising the court process. The court's displeasure and concern of their behaviour is reflected in the direction that the papers in this action be sent to the Director of Public Prosecutions for his consideration.

9. It is submitted that a clearer case of affrontery to the process of the court would be difficult to imagine. This is not the type of case where the litigant did not know the weakness of his case or the strength of the opponent's case till late in the trial. This was a case where the plaintiff was clearly aware at the very outset he did not have a case against the defendants. He does not have any excuse for imposing upon the defendants this totally frivolous and vexatious litigation."

5. I agree entirely. Mr Yau for the plaintiff manfully opposes this application. One of his grounds is that since I made the order nisi on costs, no new matter has emerged that should change that provisional view. With respect to him, that is in fact not so. I have had the benefit of argument and a reminder of the law. In the circumstances of the case I believe it appropriate for me to make an award of indemnity costs in favour of the 1st and 2nd defendants and I make that final order on the issue of costs accordingly.

6. Before I conclude, I want to say that no criticism attaches to the conduct of the case by those solicitors and counsel who represented the plaintiff. They carried out their duties with the expected proficiency and conscientiousness.

7. Costs of this application will be similarly in the cause.

Mr YAU: Yes, again I ask for costs of the plaintiff today be taxed in accordance with the legal aid regulations.

COURT: Yes, all right, thank you, Mr Yau. Costs to the plaintiff taxed under Legal Aid Regulations.