LAI YIU MUN SUSANNA v. TSANG KAI CHOY PAUL AND OTHERS

HCA 142/2017

[2019] HKCFI 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 142 OF 2017

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DECISION ON COSTS

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1.  I refer to my Reasons for Decision dated 8 March 2019. Pursuant to the orders that I have made, on 12 March 2019, the plaintiff’s solicitors submitted a draft order for my approval. The draft order includes a paragraph 7 which reads as follows:

“costs of the half-day adjournment on the afternoon of 4 March 2019 be to the Plaintiff in any event with certificate for two counsels, to be taxed on party and party basis if not agreed.”

2.  In a letter also dated 12 March 2019, the plaintiff’s solicitors explained that, in the afternoon on 4 March 2019, the hearing was adjourned shortly after 2:30pm mainly because Ms Wong, the defendants’ counsel, needed to go to hospital. At that time, Ms Wong very fairly indicated that she would take responsibility for any costs consequence. However, no formal costs order had been made.

3.  Ms Wong, in her written submissions dated 13 March 2019, opposed the inclusion of the said paragraph 7 into the draft order mainly on the ground that the matter had been overtaken by subsequent supervening event ie the abortion of the trial on 5 March 2019.

4.  Ms Lau (with Mr Fong) submitted in her reply written submissions dated 14 March 2019 that it would not be fair for the plaintiff to bear the costs of the adjournment due to no fault of her. She submitted that the plaintiff had suffered prejudice: without the adjournment, the 1^st defendant should have completed his evidence and it is possible that he may not give evidence again in the new trial; the 1^st defendant is at liberty to discuss his evidence with anyone now although he has not yet completed his evidence; and the plaintiff had paid costs to her legal team even the case had been adjourned for half a day.

5.  First, when I announced my decision to recuse myself in the afternoon on 5 March 2019, I invited parties’ submission on costs. The plaintiff did not raise any issue concerning the costs relating to the adjournment on 4 March 2019 there and then.

6.  Second, I am unable to agree with Ms Lau that costs should be awarded to compensate the alleged prejudice suffered by the plaintiff as a result of the adjournment. It may well be true that the 1^st defendant could have completed his evidence in the afternoon on 4 March 2019 before the trial was aborted on the next day. However, irrespective of whether his evidence had been completed, whether and how the evidence that he had already given (and indeed, the evidence of the plaintiff and other witnesses who had completed giving evidence) may be used in the new trial is a matter to be decided by the judge conducting the new trial and subject to any application to be made by the parties. I fail to see how it can be described as a prejudice bearing any relevance to the issue of costs of the adjournment. I cannot understand Ms Lau’s point that the plaintiff cannot prevent any possible adverse consequence due to the fact that the 1^st defendant may discuss his evidence with anyone now. As the trial has been aborted, all witnesses (including the plaintiff) may discuss the matter with anyone in the meantime. Again, I fail to see how it can be described as a prejudice bearing any relevance to the issue of costs of the adjournment.

7.  Third, it is insufficient for the plaintiff to say that she had paid costs to her legal team even if the case had been adjourned for half a day. I believe the correct question is whether the adjournment has in fact resulted in any wasted costs. If so, I would agree that the plaintiff should be compensated for such wasted costs as the adjournment was not caused by the plaintiff. I do not think Ms Wong intends to resile from her indication that she would take personal responsibility for any adverse costs consequence. I have no doubt that, if I see fit to order the defendants to pay the costs of the adjournment, she would discharge such liability on behalf of the defendants. However, I take the view that she is entitled to ask me to consider whether there ought to be any adverse costs consequence in the first place in the light of the subsequent intervening event. I agree with Ms Wong that, because of what had happened, the trial would have to be aborted on 5 March 2019 in any event. With this in mind, I am afraid that the plaintiff has not demonstrated that she has suffered any wasted costs as a result of the adjournment. First, counsel’s refreshers, which are invariably paid on a daily basis, would have been the same for 4 March 2019. Second, no solicitors’ costs (charged on an hourly basis) could have been incurred in the afternoon on that day after the adjournment. I am unable to see, in practice, what costs actually incurred by the plaintiff have been wasted as a result of the adjournment in these circumstances.

8.  It is necessary to bear in mind that costs is always a matter of discretion. For all the above reasons, I refuse to include the said paragraph 7 into the draft order. In other words, the final order shall consist of only paragraphs 1 to 6 of the draft order.