WONG TO YICK WOOD LOCK OINTMENT LTD v. BIRD NEST MANOR MEDICINES LTD AND ANOTHER

HCA 792/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 792 OF 2012

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AND

HCA 793/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 793 OF 2012

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DECISION ON COSTS

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1. In the Case Management Summons the parties agreed, among other things, that leave be given to the plaintiff to add another defendant in the proceedings. The only outstanding issue for the Case Management Summons was the costs. The 1st defendant asked for costs for the plaintiff’s application of adding the 2nd defendant on the ground that the plaintiff should have included the 2nd defendant, whom the plaintiff had known in the first place. The plaintiff refused to pay the costs because 2nd defendant was known to it to be liable for the claim upon the recent discovery. On this issue, the parties have submitted written submissions for my consideration and determination.

2. Having considered the submissions, I consider that the appropriate order for costs for the plaintiff’s application to add the 2nd defendant should be costs in the cause for the following reasons:

a.  The application should not be contested in the first place because adding the 2nd defendant should cause no prejudice to the 1st defendant in any event.

b.  There is no evidence that the plaintiff has deliberately concealed the 2nd defendant for any tactical purpose.  To be fair to the 1st defendant, the 1st defendant has not raised this issue in the written submission.

c.  The explanation given by the plaintiff can be taken on its face value without further investigation as this will be disproportionate to the costs involved.

d.  Any amendments to the 1st defendant’s defence will be compensated for by the plaintiff’s application to amend the statement of claim and the 1st defendant can apply for costs occasioned by the amendment.

3. The costs of this application for costs by the 1st defendant be to the plaintiff, assessed at $2,000.00 to be paid by the 1st defendant within 14 days from the date of this order.

4. This is an order nisi, to be absolute by 4 December 2012 unless an application is made to vary this order pursuant to Order 42 rule 5B (6).