CHU CHUNG MAN v. EAST ASIA MOVING LTD

DCEC 883/2015
DCPI 1654/2016
(Heard Together)

[2020] HKDC 850

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 883 OF 2015

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1654 OF 2016

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REASONS FOR DECISION

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1.  The Employees’ Compensation proceedings (“EC Proceedings”) and the personal injury action herein (“PI Action”) both commenced by the applicant and plaintiff (“Chu”) against the respondent and defendant (“East Asia”) in relation to an injury sustained at work on 15 December 2014 were tried together on 14-16 January 2020.  By my Judgment handed down on 29 May 2020, I gave judgment in favour of Chu in the EC Proceedings in the sum of HK$116,681 with interest, but dismissed the PI Action (“the Judgment”).

2.  In the Judgment I made a costs order nisi that there be “no order as to the costs of both sets of proceedings save that Chu do pay East Asia its costs of and incidental to the joint orthopaedics expert report, and Chu’s own costs be taxed in accordance with Legal Aid Regulations”.

3.  Chu now applies by letter dated 3 June 2020 to seek to vary the costs order nisi to the following:-

“For the EC Proceedings:

(a) That East Asia do pay Chu costs of the EC Proceedings, to be taxed if not agreed;

(b) Chu be entitled to costs on liability of the EC Proceedings on indemnity basis from 4^th January 2019 (28 days after the said Sanctioned Offer made by Chu on 6^th December 2018) onwards, to be taxed if not agreed;

(c) Chu be entitled to interest of 10% above judgment rate for the judgment sum of HK$116,681 from 4^th January 2019 (28 days after date of the said Sanctioned Offer made by Chu on 6^th December 2018) onwards till the date of payment … ;

(d) Chu’s own costs be taxed in accordance with the Legal Aid Regulations; and

(e) That East Asia shall pay the costs of this application, to be taxed if not agreed.

For the PI [Action]:

(a) That Chu do pay East Asia costs of the PI [Action], to be taxed if not agreed; and

(b) Chu’s own costs be taxed in accordance with the Legal Aid Regulations.”

4.  At the conclusion of the hearing I dismiss this application with costs. Here are my reasons.

5.  The basis now relies on by Chu to seek the variation is the above-mentioned sanctioned offer made by letter of the Chu’s solicitors dated 6 December 2018 to East Asia’s former solicitors (“the Offer Letter”).  The costs order now applied for seeks taxation of the costs in the EC Proceedings on indemnity basis and interest on the sum awarded in EC Proceedings at 10% above judgment rate.  These are consequences the court may order under O 22 r 24 where a plaintiff achieves a result better than the one offered in his Sanctioned Offer.

6.  In the Offer Letter, Chu’s solicitors made an offer in relation to the EC Proceedings thus: “We are therefore instructed to make a Sanctioned Offer on liability that the Respondent be wholly liable in the captioned EC action” (original emphasis).

7.  It is by now well established that

“Unless the sanctioned offer is in the prescribed form, it will not constitute offer. The consequence of the offer not constituting a sanctioned offer is that a plaintiff who has made the offer, if successful, cannot rely on the provisions of O 22 r 24 as to costs and other consequences where he does better than his offer” (paragraph 22/5/A Hong Kong Civil Procedure 2020)

(see also Montrio Ltd v Tse Ping Shun David (HCA 757 of 2009, unrep, [2012] HKEC 232, its appeal CACV 291/2011, unrep, [2012] HKEC 1781) and Kwok Chin Wing v 21 Holdings Ltd & Another [2011] 3 HKC 542)

8.  The requirements of the form and content of a sanctioned offer are prescribed by O 22 r 5, which include (among others):-

“Form and content of sanctioned offer (O.22, r.5)

….

(7) A sanction offer made not less than 28 days before the commencement of the trial must provide that after the expiry of 28 days from the date the sanctioned offer is made, the offeree may only accept it if –

(a) The parties agree on the liability for costs; or

(b) The Court grants leave to accept it.

…”

9.  In Kwok Chin Wing, a purported sanctioned offer by letter sent by the plaintiff there was held not to have constituted a sanctioned offer as it did not comply with O 22 r 5(7) quoted above.

10.  It is not disputed that the Offer Letter also did not comply with O 22 r 5(7).  It is therefore clear that it did not constitute a sanctioned offer to trigger the imposition of the consequences under O 22 r 24.

11.  Chu now also seeks to vary the costs order such that Chu is not required to pay East Asia its costs of and incidental to the joint orthopaedics expert report.  The contention is that in the Judgment I have merely confirmed the assessment in Form 9 and, though have not accepted the opinion of Chu’s expert, I have also not accepted the opinion of the expert for East Asia.  This contention is entirely misconceived as I have in the Judgment concluded after analysis, and expressly stated, that I preferred the opinion of the expert for East Asia over that of the expert for Chu (see paragraph 33 to 36 of the Judgment).

12.  I therefore dismiss the application to vary and make absolute the costs order nisi.  Ms Ip accepts that the costs of this application should follow the event, and I so order.