HIGH ROUTE LTD v. WONG CHUNG KAI

HCA 320/2019

[2024] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 320 OF 2019

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DECISION ON COSTS

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1.  This Court handed down its judgment on 12 January 2024 (the “Judgment”) and made a costs order nisi on the following terms:

“the Defendant is entitled to all its costs of and occasioned in the present action, on a party to party basis, if not agreed, with a certificate for two counsel.”

2.  On 24 January 2024, the Plaintiff took out a summons to vary the above costs order nisi to the effect that there should be “no order as to costs for the costs of and occasioned by the expert evidence adduced in the present action.”

3.  I have directed this matter to be dealt with by way of paper disposal and the parties have since filed written submissions to which this Court has duly considered.

4.  The Plaintiff relies on three grounds to vary the costs order nisi.

(1)  The Defendant acted unreasonably in insisting on the need for expert evidence when the issues in the present action did not require expert evidence to be resolved.

(2)  The Plaintiff should not take the full blame for the time and costs wasted in adducing expert evidence. The Plaintiff had consistently taken the stance that expert evidence was unnecessary, and this has been confirmed by this Court.

(3)  By reason of the Defendant's unreasonable insistence on producing expert evidence at trial, there has been a significant increase in time and costs of the present action.

5.  I am of the view that the application to vary the costs order nisi should be dismissed. Although this Court forms the view that expert evidence is unnecessary in the present case, the fact is that both parties including the Plaintiff jointly agreed to adduce expert evidence by way of the consent summons dated 10 September 2020. It is true that initially the Plaintiff objected to the need to adduce expert evidence, but the undeniable fact is that it substantially agreed to it by signing the consent summons.

6.  Mr Kwong for the Defendant referred this Court to the fact that it was agreed that costs of the application under the consent summons to adduce expert evidence and the consent summons were to be in the cause of the present action.

7.  On 11 September 2020, Master Dick Ho made an order in terms of the consent summons including the agreed term that the costs of the application and the consent summons were to be in the cause.

8.  I am of the view that there are no good reasons for this Court to depart from the parties’ agreement.

9.  Mr Kwong has also helpfully referred this Court to the case of Kam Hing Trading (Hong Kong) Ltd v The People’s Insurance Company of China (Hong Kong) Ltd, unrep, HCCL 2010, per Stone J at §§59-60 for the proposition that when an order was made to allow the parties to adduce expert evidence on the basis that costs were to be in the cause, absent any application for variation and appeal from the said order, it would not be right to reopen and existing costs order through the back door.

10.  Secondly, I also agree with Mr Kwong that in fact the Plaintiff subsequently made an application to substitute its original expert with a new expert, and this caused a delay in the preparation of the expert evidence.

11.  Thirdly, Mr Kwong has a valid point that in fact the Plaintiff relied on its expert evidence both in its opening and closing submissions. This does not sit well with the Plaintiff’s present stance that its expert evidence was unnecessary.

12.  The fact is that both parties have proceeded on the basis that expert evidence is necessary and relevant in resolving the issues in this action. Each party had deployed the expert evidence in its submissions at trial, in the hope that it would prevail at trial. I agree that the fair outcome is for the successful party to recover his costs of the expert evidence from the losing party.

13.  Having relied on the benefit of the expert evidence at trial, it is not entirely fair for the Plaintiff now to submit that the reliance on expert evidence is misplaced, and costs were unnecessarily incurred. Mr Kwong submitted that it was only after knowing that it was the unsuccessful party at trial that the Plaintiff now turns around to say that expert evidence is unnecessary, with the hope of avoiding the normal costs consequences of losing at trial.

14.  Finally, I agree that costs should follow the event. The Defendant has not done anything calculated to occasion unnecessary litigation and expenses. I accept that there is nothing to suggest that the introduction of unnecessary expert evidence was something calculated by the Defendant to incur unnecessary expenses.

15.  For all the reasons stated above, the Plaintiff’s summons dated 14 January 2024 is dismissed with costs to be paid by the Plaintiff to the Defendant on a party to party basis, to be taxed if not agreed.