TSOI YIU CHUNG v. ING LIFE INSURANCE CO (BERMUDA) LTD

HCA2447/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2447 OF 2007

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BETWEEN

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R U L I N G

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1.  Whilst I applaud the sentiments of Miss Tsui in wanting to move matters along by proposing that there should be, in effect, an order that the plaintiff should answer a request for further and better particulars, which is as yet unformulated, as part of the schedule of orders that I am to make this morning, I do not think, as a matter of principle, that is correct.  And so I will uphold Mr Lin’s submission in this regard, and I will say a bit more about the consequence of that in a moment.

2.  What I am going to do is that I am going to give leave to the defendant to re-amend its defence, and it will have 56 days to do so, which is the eight weeks that has been asked for. 

3.  In the meantime I would expect that the defendant will serve a letter requesting further and better particulars of the latest version of the statement of claim.  And, no doubt, the plaintiff will need time to consider that.  I very much hope that this can be done in such a way that everything can be ready in terms of the re-amended defence within the next 56 days.  But if it is not, then it is unavoidable that there may well have to be a further hearing - it will have to be before another judge - to deal with any outstanding  answers to the request for further and better particulars, and then to re-adjust the timing of the filing of the amended defence.  But I am afraid it is unavoidable in these circumstances.  I think that I ought to stand on principle, and I do not think I am in a position to commit the plaintiff to answer an as yet unformulated request for further and better particulars. 

4.  From that I turn to the question of the costs.  I will make a gross sum assessment of these costs.  I am obliged to the defendant’s solicitors for preparing a bill in proper form.  The total asked for is very nearly $85,000 for a fairly limited period.  But, of course, there was a great deal of material to look at, and I can understand why this took the sort of time that it did.  Care would have been needed to go through all of this.  It is also right to say that Miss Tsui would have needed supervision from a more senior solicitor in her offices.

5.  I do not think I can recognise Miss Tsui’s Australian admission for the purposes of this assessment.  The whole object of these gross sum assessments is to have the parties know what the particular order for costs means, rather than having to wait and go through the expense of a taxation before the Taxing Master.  And the law recognises, therefore, that the judge who is making the assessment can do no better than approach it with a broad-brush.  But of course that does not mean that the judge can just go through it in any sort of haphazard or careless way.  I have got to look at the issues and what was involved here, and I think it is sufficient for me to say that I have done so in the sense that I have considered the amendments and I have looked at the correspondence.

6.  I do not think this is a case which calls for the imposition of an indemnity taxation.  I think I am going to make this assessment with a party and party taxation in mind.  I think that the plaintiff’s solicitors have been far too rigorous in suggesting that all that the defendants are entitled to are costs of just under $20,000.  I think the correct order is that there should be costs assessed in the sum of $50,000, and those costs will be payable forthwith. 

7.  The only outstanding matter is the costs of today’s appearance.  I should also make clear that when I awarded and assessed costs on the last occasion, on 1 December, in the amount of $5,000, this included an element of preparation, and I have taken that into account in making my assessment of $50,000.

(Discussion re costs of today)

8.  I take a slightly different view to today’s hearing, whereas on the hearing on 1 December there were costs thrown away, and this was all the fault of the plaintiff.  On this occasion I think this has been a very useful exercise.  The point is that I have now been able to give these directions  and although the defendant may have lost a lot of the argument today, Mr Lin is right.  I think the better order is to say that these costs, the costs of today’s hearing, should be costs in the cause of the action. 

9.  In coming to that view I also bear in mind that we are here after all because the plaintiff has had to come to ask for an indulgence to get its statement of claim re-re-amended as it now is.  I think one also ought to take this into account, which rather counteracts the fact that Mr Lin has had the better of the argument on the procedural points.