CHAN WAI HING v. NG CHEUK TO AND OTHERS

DCCJ 2647/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2647 OF 2013

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D E C I S I O N
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1.  This is an application for variation of costs order. The plaintiff applied to vary the interest rate of the damages to 10 per cent above judgment rate from 3 September 2015 until payment, for costs on indemnity basis from 3 September 2015, and interest on those costs at 10 per cent above judgment rate.

2.  The plaintiff relied on a sanctioned offer to the defendants dated 5 August 2015 which offers, inter alia, that the defendants shall pay a sum of HK$10,000 to the plaintiff as damages (inclusive of interest), and costs of the action be to the plaintiff.

3.  The 2^nd and the 3^rd defendants did not reply to the letters  The 4^th defendant replied on 24 August 2015, indicating that she would not accept the offer, and said that the plaintiff’s offer had no sincerity.  She did not make any counter-offer.

4.  Counsel for the defendants, Mr Lam, urges the court to take into consideration Order 22, Rule 24(4), which states that:

“Where this rule applies, the court shall make orders referred to in paragraph (2) and (3) unless it considers it unjust to do so.”

5.  Mr Lam submits that under the sanctioned offer, the defendant was offered to pay the whole cost of the action, while there were three defendants in the action, and in the judgment they were held to be jointly and severally liable.

6.  To deal with the argument, I would say that it was anticipated by the plaintiff that the defendants would discuss the offer among themselves and act together. That is, if the offer is accepted, each of them would only be liable for roughly one-third of the costs, or jointly and severally liable for the costs. If they could not act together but wish to accept the offer, they should make a counter-offer to the effect that they are only liable for one-third of the costs up to the date of acceptance.

7.  In this case, no counter-offer was made.

8.  I do not find that it is unjust to grant the application of the plaintiff. Consideration is given to the fact that no counter-offer was made by the defendants. 

9.  As for the interest, I think 5 per cent is more appropriate in the circumstances.  I do not think that it is appropriate to grant additional interest on costs.

10.  In conclusion, I make an order that my order dated 8 January 2016 be varied to the effect that as from 3 September 2015, the costs shall be on indemnity basis and the interest on the damages shall be 5 per cent above judgment rate.

11.  The application for higher interest rate on costs is dismissed.  Costs of this application be to the plaintiff, to be taxed if not agreed, with certificate for counsel.