XCHRX HON KWOK LUN WILSON v. SHIN POK LAI ALVIN

HCA10334/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10334 OF 1998

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J U D G M E N T

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1. In this matter, the Plaintiff appeals against an order of costs alone made by Mr Registrar Betts on 12th November 1998 in respect of the Plaintiff's Summons dated 4th September 1998. Leave to so appeal on costs alone was granted by Ms Registrar Chu on 5th December 1998.

2. To understand the issues arising in respect of this appeal, some background in relation to this matter is essential.

Background

3. In June 1998, the Plaintiff issued this claim against the Defendant for damages arising out of a collision on 28th September 1997 between a car driven and owned by the Plaintiff and one driven and owned by the Defendant, the Plaintiff alleging that it was due to the Defendant's negligence which has caused the collision between the two vehicles. The damages claimed related solely to the repair costs, loss of use, survey fees, towing fees and storage charges in respect of the Plaintiff's vehicle. There was no claim for injuries suffered by the person of the Plaintiff. The Defendant's conviction for careless driving was also relied on by the Plaintiff.

4. A Defence to the Plaintiff's claim was filed by the Defendant on 13th July 1998. It denied negligence on the part of the Defendant and alleged that the collision was caused or contributed to by the Plaintiff's negligence. It further admitted the Defendant's conviction for careless driving but denied its relevance to the Plaintiff's case.

5. A Reply was filed by the Plaintiff on 27th July 1998 which did no more than basically join issue between the parties.

6. On 6th August 1998, Interrogatories were served by the Plaintiff upon the Defendant. The first four interrogatories focused on the cause of the accident itself, thus going to the issue of liability. The last interrogatory asking the Defendant to confirm that the windows of the Plaintiff's vehicle were broken as a result of the collision.

7. On 2nd September 1998, the Defendant filed in Court and served upon the Plaintiff a document with the title of the proceedings herein and headed with the words "Express Admission By Pleading". The contents of that documents comprised of four lines as follows :

" The Defendant, for the purposes of this action only, admits liability to the Plaintiff as alleged in the statement of claim, but the Defendant denies that the Plaintiff has thereby or at all suffered the alleged or any damage."

8. This document was dated 2nd September and signed by the solicitors for the Defendant, Messrs Y.T. Chan & Co.

9. Upon being served with this document, the Plaintiff's solicitors, by letter of the same date, returned the "Express Admission By Pleading" to the Defendant's solicitors, pointing out in that letter that the Defence had expressly denied liability and that under the Rules of the High Court, no "pleading" subsequent to a Reply shall be served except with the leave of the Court, therefore there is no legal basis for the service of the "Express Admission By Pleading".

10. On the following day, i.e. 3rd September 1998, the Defendant's solicitors by letter of the same date elaborated on the document headed "Express Admission By Pleading" to say that the Defendant, by that document, had informed the Plaintiff that the Defendant admitted liability leaving the question of quantum to be determined by the Court. That letter went on to say that although the choice of the word "pleading" may not have been appropriate, the document was in writing and complies with Order 21, Rule 1 of the Rules of the High Court. The face of this letter states that the letter was to be sent "by fax and by post". However, the Plaintiff's solicitors deny ever receiving a faxed copy of this letter on 3rd September but that this letter was only received by them through the post on 5th September 1998. (Ultimately the Plaintiff did obtain an Order on 16th October 1998 for interlocutory judgment with damages to be assessed on the strength of this letter.)

11. On 4th September, the Plaintiff filed with the Court Request for Further and Better Particulars of the Defence, such particulars having first been requested by letter dated 6th August 1998. These further and better particulars sought by the Plaintiff all relate to the question of the cause of the collision and therefore to the issue of liability.

12. On the same day, i.e. 4th September 1998, the Plaintiff issued the Summons (the subject matter of this appeal) seeking an order for -

(a) the further and better particulars filed;

(b) answers to the interrogatories filed and served on 6th August; and

(c) costs of the application.

13. As already indicated above, the Plaintiff did obtain interlocutory judgment on 16th September 1998 on the strength of the admissions contained in the Defendant's solicitors' letter dated 3rd September 1998. This therefore made the Plaintiff's Summons dated 4th September redundant.

14. By letter dated 29th October 1998, the Plaintiff's solicitors invited the Defendant's solicitors to consent to withdrawal of the Plaintiff's Summons dated 4th September with costs to the Plaintiff. In reply by letter of 10th November 1998, the Defendant's solicitors did not agree that the Plaintiff was entitled to costs of their Summons maintaining that it was wrong of the Plaintiff to have issued that Summons after being notified of the Defendant's admitting to liability. The Defendant, however, indicated that he was prepared to consent to withdrawal of the Plaintiff's Summons with no order as to costs. This presumably was not acceptable to the Plaintiff.

15. It was against this background that the parties appeared before Registrar Betts arguing on costs only of the Plaintiff's Summons dated 4th September 1998. After hearing argument by the parties, the Registrar awarded costs of the Plaintiff's Summons to the Defendant. The Plaintiff now appeals against this order of the Registrar.

The law

16. Normally, an appeal from a master to a judge in chambers is dealt with by way of rehearing, the judge treating the matter as though it had come before him for the first time. However where the appeal is restricted only to the question of costs, a judge in chambers should not allow appeals against costs orders by masters, unless it can be shown that the order made was unreasonable or erred in law or failed to take into account proper matters or took into account matters that should not have been taken into account. (See Hoddle v. CCF Construction Ltd. [1992] 2 All ER 550.)

17. The Court of Appeal in Hong Kong has adopted the same test in the case of China Venturetechno International Co. Ltd. v. New Century Chain Development, Civil Appeal No. 20 of 1996.

18. Moreover, it must also be recognized that the award of costs is a matter of discretion and that discretion is in no way fettered when exercised by a master or, as in this case, by the Registrar.

19. In order therefore to succeed on an appeal against a costs order of a master or the Registrar, it is for the party appealing to show that the master or Registrar erred in the manner as stated in Hoddle's case.

The Plaintiff's argument

20. Mr Chan who appeared on behalf of the Plaintiff submitted that it was wrong of the learned Registrar to take the view urged upon him by the Defendant that the "Express Admission By Pleading" was sufficient for the purpose of admitting liability when in fact it was a denial of liability.

21. In so submitting, Mr Chan relied upon the principle that a cause of action in tort is comprised of both negligence AND damage resulting from that negligence. Therefore the purported "Express Admission By Pleading" from the Defendant, when it denied that the Plaintiff "has thereby or at all suffered the alleged or any damage", contradicted the earlier sentence that the Defendant "admits liability to the Plaintiff as alleged in the statement of claim".

22. Mr Chan further submits that the effect of this contradiction on the face of the document is such that the Plaintiff could not have obtained interlocutory judgment relying on the "Express Admission By Pleading" alone. He seeks reliance on the cases of Blundell v. Rimmer [1971] 1 All ER 1072 and Rankine v. Garton Sons & Co. Ltd. [1979] 2 All ER 1185.

23. A further point taken by Mr Chan Chi Hung on behalf of the Plaintiff is that when the "Express Admission By Pleading" was served upon them by the Defendant on 2nd September 1998, the pleadings in this matter had already closed and leave of the Court was needed before any further pleading could be served.

Decision

24. Discretions relating to costs orders are very often made depending on the views taken by a master as to the reasonableness or otherwise of the actions of a party to litigation. For this reason a very wide discretion is given.

25. Granted the document entitled "Express Admission By Pleading" contains all the imperfections submitted by Mr Chan Chi Hung and that it could not have formed the basis, per se, for obtaining interlocutory judgment against the Defendant, nevertheless, upon receipt of that document, the Plaintiff's solicitors should reasonably have been put on notice that the Defendant was prepared to admit liability, there being no ambiguity in the first sentence of this document. Whatever ambiguity in the second sentence could and should have been cleared up by a simple phone call or a short letter to the Defendant's solicitors.

26. In this case, if the learned Registrar who is vastly experienced in these matters, took the view as I have taken above, and for that reason, arrived at the conclusion that it was not reasonable for the Plaintiff's solicitors to not only return the document headed "Express Admission By Pleading" to the Defendant's solicitors, but almost immediately issue the Summons of 4th September, which, may well have been unnecessary had the Plaintiff's solicitors taken those simple steps of clearing up the matter with the Defendant's solicitors, then I am unable to say that the learned Registrar had erred in the manner as stated in Hoddle's case, such that this appeal on costs should be allowed.

27. Accordingly, the Plaintiff has failed to establish that which is required for me to upset the costs order of the learned Registrar and this appeal is dismissed.

28. In the circumstances the costs order of Mr Registrar Betts below do stand and there will be an order nisi that the costs of this appeal be to the Defendant. I decline to make an order for costs on an indemnity basis (as urged by Mr Samuel Chan for the Defendant) because the Defendant's solicitors were not without fault since I do accept that the "Express Admission By Pleading" did contain the imperfections submitted by Mr Chan Chi Hung.