PANGMA DAMBAR DHOJ v. DRAGAGES HONG KONG LTD AND ANOTHER

CACV112/2017

[2018] HKCA 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 112 OF 2017

(ON APPEAL FROM HCPI 76 OF 2014)

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DECISION

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Hon Chu JA giving the decision of the Court:

1.  By summons filed on 5 January 2018, the 1^st and 2^nd defendants apply for an order that the plaintiff provides security for their costs in this appeal in the estimated sum of $186,500.  The plaintiff has not filed an affidavit nor put in any submission on the application.

2.  Having considered the papers, we are of the view that it is appropriate to deal with the application on paper without an oral hearing.

The Judgment

3.  In this appeal, the plaintiff seeks to appeal against the judgment of Deputy High Court Judge Saunders given on 15 May 2017, dismissing his claim against the defendants for damages for injury to his right foot sustained during an accident that happened on 12 December 2011 when he was employed by the 1^st defendant.  The 2^nd defendant was the principal contractor at the construction site where the accident occurred.

4.  In the judgment, the judge found against the 1st defendant on liability, but held that the plaintiff was 25% liable in contributory negligence.  The judge has made no finding on liability in respect of the 2nd defendant.  On quantum, the Judge held (at §§36 and 37) that the plaintiff “has failed to establish on the balance of probabilities that the accident he suffered on 12 December 2011 is the cause of the conditions he now experiences” as “[a]ny consequences of that injury would … have been resolved well within 12 months of the date of the accident, leaving [the plaintiff] injury free.”  The Judge accordingly dismissed the plaintiff’s claim with costs to the defendants.

This appeal

5.  The plaintiff acts in person in these proceedings.  He served and filed the Notice of Appeal on 22 May 2017. The Notice of Setting Down an Appeal was filed on the same day.  On 9 June 2017, the defendants filed a Respondent’s Notice seeking to affirm the Judgment on the additional or alternative ground that any award to the plaintiff on his claim would not exceed the amount of employees’ compensation he had already received.

6.  The plaintiff failed to lodge the draft appeal bundle within the time directed by the Court.  Pursuant to the direction of Master Chow given on 25 July 2017, the defendants’ solicitors lodged the draft appeal bundle on 28 August 2017.  On 9 October 2017, the defendants applied to fix a date for hearing of the appeal.  On the same day, the defendants’ solicitors wrote to the Court requesting to hold a direction hearing for the purposes of: (i) passing a copy of the appeal bundle to the plaintiff, and (ii) ensuring that the plaintiff would indeed pursue the appeal before further costs were incurred.  Not surprisingly, the Registrar of Civil Appeal refused the request for reasons given in the Court’s letter dated 11 October 2017.  On 3 November 2017, the appeal was fixed for hearing on 2 May 2018 with one day reserved.

The application for security for costs

7.  On 15 December 2017, the defendants’ solicitors wrote to the plaintiff to request for security for costs. The plaintiff did not respond.  On 5 January 2018, the defendants took out the present summons.

8.  The principal ground on which the defendants make the application is that the plaintiff is impecunious and that it will be difficult and expensive to enforce a costs order against him if his appeal was unsuccessful.  The defendants rely on the fact the plaintiff had been legally aided, his failure to pay the costs previously ordered against him in the sum of $46,000, and also references made by the plaintiff in the Notice of Appeal, a letter to the Court in this appeal and two affirmations he filed in the proceedings below to the effect that his financial position is poor and he lacks financial support.  As noted above, the plaintiff has not filed any evidence to contest the defendants’ contention that he is impecunious.

9.  In the written submission of Mr Wong for the defendants, reliance is also placed on the plaintiff’s lack of intention to proceed with the appeal as reflected by his failure to comply with the directions on preparation of appeal bundles and to apply to fix a date for hearing the appeal.  Mr Wong further argues that the plaintiff’s appeal does not enjoy a reasonable prospect of success.

Discussions

10.  It is well established that applications for security for costs must be made promptly and should be made as soon as possible after the appeal is set down: Hong Kong Civil Procedure 2018 vol 1 para. 59/10/34; see also Lily Cheung v. Cheung Wai Kwok & Anor (unreported) CACV 154 & 156/2015, 23 September 2016, at §§13.1 & 13.2.

11.  The defendants’ application for security for costs is a very late application.  It was made more than seven months after the appeal was set down, and less than four months from the hearing of the appeal.  By the time the defendants’ solicitors raised the request by correspondence in December 2017, all the preparations for the appeal had been completed and a significant portion of the costs had been incurred, as can be seen from the estimated breakdown of costs exhibited to the affirmation in support of the application (exhibit LSL-3). 

12.  Mr Wong’s submission has referred to the plaintiff’s inaction throughout the appeal.  If it is the defendants’ view that the plaintiff does not have a genuine intention to prosecute the appeal, then all the more reason for the defendants to act promptly to request and apply for security for costs.  The fact that the plaintiff was legally aided has been known to the defendants since the commencement of the action below. The plaintiffs’ two affirmations in which he admitted to be in poor financial position are dated 29 May and 2 June 2017.  The defendants ought therefore to be well aware of the plaintiff’s impecuniosity shortly after the appeal was commenced. Had the defendants moved promptly to seek security for costs, the time and costs associated with the preparation of the appeal bundles, to say the least, could have been avoided.

13.  Neither the affirmation filed in support of the defendants’ present application nor the written submission has explained why request and application for security for costs were not, or could not, be made earlier.

14.  In the circumstances, we are of the view that the defendants’ application for security for costs should be refused.

Disposition

15.  We dismiss the summons and make no order as to the costs of the application.