XCHRX HO MOH v. TAM YIU KEUNG t/a YIU SUN CONSTRUCTION ENGINEERING CO. AND ANOTHER

HCPI NO. 1251 OF 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1251 OF 1998

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D E C I S I O N

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1. This is an application by the defendants in respect of the Costs Order Nisi made by me on 18 January. In the Order Nisi, I ordered that the costs of the defendants be borne by the plaintiff, however the costs to be borne should be 60 per cent of the defendants' costs. The defendants now argue that the deduction of 40 per cent is excessive.

2. Today I have had the benefit of hearing submissions from counsel acting for both parties. According to counsel acting for the parties, the costs order should be amended to that the costs as from 19 November 1999 and thereafter be to the defendant. The order will be so amended.

3. I shall now deal with the reduction of the costs. I have heard the submissions by Miss Tsang acting for the defendants, the applicants in this application. I have noted that there was a payment into court on 28 March 2000. She submits that I should take into consideration of those facotrs set out in her skeleton of arguments. Mainly, she submits that there was no prejudice to the plaintiff and it was the plaintiff who acted unreasonably in refusing to accept the payment in, and therefore she is of the opinion that 40 per cent reduction is excessive.

4. However, I have had the benefit of hearing submissions from counsel acting for the plaintiff. Mr. White has very helpfully referred me to the authority of Ford v GKR Construction Limited and Others (2000) 1 All ER 802. This was a case of assessment of damages for personal injury. There was a payment into court by the defendant. In the course of assessment of damages, the defendants decided to employ an inquiry agent to observe the plaintiff. Video-tapes were taken of the plaintiff and they were adduced as evidence. The judge found that the video-tapes evidence was important for his final decision. In a subsequent judgment on costs, the judge held that the defendants ought to have obtained the evidence earlier and that the late disclosure had prevented the plaintiff from assessing the merits of the payment-in. He therefore awarded the plaintiff all of her costs even though she had failed to beat the payment in. The defendant appealed. In the judgment of the Court of Appeal, Judge LJ at page 807 said:

"Civil education is now developing into a system designed to enable the parties involved to know where they stand in reality at the earliest possible stage and the lowest practical costs so that they may make informed decisions about their prospects and the sensible conduct of their cases. Among other factors, the judge, exercising his discretion about costs, should consider whether one side or the other side has or has not conducted litigation with those principles in mind."

5. Also in this judgment, in considering whether or not the judge was acting properly in his decision to award costs against the defendant, even though the defendant had successfully argued the case, he said:

"I suspect that if I had been the trial judge, I might well have made a different order from the order he made. To be specific, in particular, I should at least have been tempted to make an order that there should be no order for costs after the date of the payment into court."

6. That was the view of the Court of Appeal about the proper order to be made. But the Court of Appeal refused to vary the order the trial judge. Here, we have the pyament into court on 28 March 2000. Again, I emphasise that I have received no reason from the defendant up to the present moment as to why the disclosure of the tapes evidence was not made until at the trial

7. On the other hand, considering the view of the Court of Appeal in Ford's case, I am of the view that this case is different because the plaintiff has, long before trial, been given the medical reports, which showed that the plaintiff was exaggerating, or even malingering, when he attended the medical examinations.

8. I have to take into consideration of the fact that because of the late discovery of the tape, the plaintiff had to take the trouble to get one more witness to give evidence to support the plaintiff's case. Of course, it will be for the defendants to say that the plaintiff had acted unreasonably after seeing the tape and not to accept the payment in by that stage. But it would be too late for the plaintiff to do so.

9. So taking all these factors into consideration, I maintain that there should be a 40 per cent deduction of the costs to the defendant, the costs being from 19 November 1999 and thereafter.

[Submissions from counsel on costs for today's hearing]

10. The plaintiff should be entitled to costs for today because I have already made the Order Nisi on the last occasion. It is the application of the defendants that the Order Nisi was excessive and therefore it was an argument between two parties as to whether or not that Order Nisi should stand and be made absolute. In fact, if the defendants elected not to challenge the Order Nisi, the Order Nisi would have been made absolute under Order 42 rule 5B(6) of the Rules of the High Court. I therefore see no reason why the costs should not follow the event. I order that the plaintiff should have the costs for today, with a certificate for counsel.