|
HCMH 48/2021
[2022] HKCFI 1486
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MENTAL HEALTH CASE NO 48 OF 2021
_________________
| |
IN THE MATTER OF Part II of the Mental Health Ordinance, Cap 136 (“the Ordinance”) and the inherent jurisdiction of the Court
|
| |
and
|
| |
IN THE MATTER OF an alleged mentally incapacitated person HVD
|
_________________
Before: Deputy High Court Judge Winnie Tsui in Chambers
(Not Open to Public)
Date of Hearing: 13 May 2022
Date of Decision: 13 May 2022
_______________
DECISION
_______________
1. This is my decision on the costs of the two aborted medical examinations of HVD and the costs of the hearing on 12 January 2021.
2. There are two fundamental premises which I would highlight at the outset.
3. First, court orders are made to be observed. If a party is free to choose whether to obey or disobey an order, that would undermine the integrity of the court’s process. A should know this and should fully appreciate the vital importance of complying with any order or direction made against him.
4. The second fundamental premise is that all the orders and directions made by the court in these mental health proceedings are made with the interests of HVD as the paramount consideration. I have previously ruled that legitimate queries have been raised to cast serious doubt on the mental capacity of HVD. Coupled with her old age, while the inquiry is yet to take place, there are enough materials before me to justify making interim orders to treat her as a vulnerable adult and protect her interests and protect her from any potential exploitation. Parties should comply with these orders so as to protect HVD’s interests. Again, A should fully appreciate all these.
5. Against these two fundamental premises, if a party has a genuine intention to comply with the court orders and directions, both in words and in spirit, and protect HVD’s interests, one would expect the party to act reasonably, if not proactively, to comply with all the court orders. He or she would seek to overcome any obstacle that may arise in the process. In the event of any disagreement, parties should try to compromise and not dwell on minor details or perceived mistakes made by the other side.
6. On 15 October 2021, I granted a temporary stay of the injunction against A expressly for parties to make arrangement for a medical examination to be conducted on HVD in Singapore via video link[1].
7. Two examinations were scheduled for that purpose. The first one was fixed for 26 October 2021 and when that attempt failed, a second one was scheduled on 2 November 2021. The second attempt also failed.
8. Having considered the contemporaneous correspondence, I am of the view that A should be responsible for the costs caused and thrown away by the two failed attempts and half of the costs of the hearing on 12 January 2022, which was in effect necessitated by the aborted examinations.
9. I do not propose to go into the details of what had happened during the stay period from 15 October 2021 to 5 November 2021. I generally agree with the observations and submissions made by Mr Avery Chan, counsel, appearing for K.
10. In particular, for the first scheduled examination, I find that A had not been acting in a responsive or reasonable manner to the reasonable proposals made by K’s solicitors. Having had to meet a very tight timeframe, K’s solicitors issued instructions to Dr Wong on 22 October 2021. A took issue with these instructions, which have since been referred to by his solicitors as “the Unilateral Instructions”. The complaint was that the Unilateral Instructions were not in agreed terms and were contrary to the parties’ intention to provide joint instructions to the expert.
11. I consider that the complaint was ill-founded and was in any event counter-productive. If A had genuinely wanted to arrange for the medical examination, he could have made amendments to, or supplemented, any part of the Unilateral Instructions which he considered to be unsatisfactory. Instead, he dwelled on this complaint and did not seek to take the matter forward in any constructive way.
12. Furthermore, the allegation that HVD was not fit to attend the scheduled examination on 26 October 2021 must be treated with great scepticism, as three days later, she was brought by A to undergo a mental capacity test.
13. For these reasons, I consider that A had not been acting reasonably with a view to arranging the medical examination. The court had expected both parties to act reasonably when it granted the stay of the injunction in October 2021. What I fail to see here is any serious attempt, effort or intention on the part of A to try to make the examination happen.
14. As for the second attempt, the examination was cancelled at the last minute as HVD had to undergo an urgent surgical procedure.
15. There seems to be no reason why A could not have informed K that HVD had undergone a CT scan on 29 October 2021 and forewarned K that there might be a possibility that the second examination would be derailed. He should not have agreed on 29 October 2021, the same day when the scan took place, that the second examination be fixed on 2 November 2021 without informing K of HVD’s latest physical condition.
16. If he had been transparent about HVD’s medical needs, both parties could have worked together to see how best to take things forward and the wasted costs of the second examination might likely have been avoided.
17. In the circumstances, A should be held responsible for the wasted costs arising out of the second scheduled examination.
18. The hearing on 12 January 2022 was scheduled in order to sort out the conduct of the medical examination. I have found that A was to be blamed for the two aborted examinations. Prima facie he should also bear the costs of the hearing. However, the hearing was in fact partly used to work on the joint instructions to the expert. That part of the hearing cannot be said to have been totally wasted.
19. I will therefore order that A do bear half of the costs of the hearing. The other half of the costs be in the cause.
[Submissions on quantum]
20. There is clearly duplication between fee-earners as disclosed by K’s statement of costs. The costs claimed for the last hearing are clearly excessive. The costs are going to be taxed down.
21. I make the following costs orders:
(1) K do have costs of the two aborted examination, summarily assessed at $85,000.
(2) K do have half of the costs of the hearing on 12 January 2022. The costs of the whole hearing be summarily assessed at $150,000.
(3) Half of the costs of that hearing be in the cause.
(4) A do pay the above assessed costs on or before 27 May 2022.
(5) A do pay to K the half share of the expenses of the medical examination on 20 January 2022 in the sum of $125,879.08 on or before 27 May 2022.
|
( Winnie Tsui )
Deputy High Court Judge |
Mr Avery Chan, instructed by Oldham, Li & Nie, for the applicant
Mr Kevin Bowers of Bowers, for the respondent and HVD
Mr Jason Chan of the Official Solicitor’s Office
[1] See my decision at [2021] HKCFI 3213 at paras 37 and 38(3)
|