ALWYN JONES v. MOTOR INSURERS' BUREAU OF HONG KONG

HCAL 139/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 139 OF 2005

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J U D G M E N T

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1.  This is an application for interim relief in the form of interim payment.  The Applicant has obtained leave to apply for judicial review against the failure of the MIB to deal with his application for payment promptly and reasonably in the public law sense, he having suffered injuries in a motor vehicle accident on 28 July 2002 in a “hit-and-run” case.

2.  The relief sought in the Form 86A, based on which leave has been obtained, is an order of certiorari to quash the decision of the MIB to reject his application for payment; an order of mandamus to compel the MIB to accept his application for payment in a sum equivalent to the common law damages that the Applicant would have recovered from the wrongdoer if only he or she could be identified and sued; a declaration that the Applicant is entitled to payment from the MIB in the amount described above; and/or damages in a sum equivalent to the amount of common law damages that I have described. 

3.  I have to deal with today an application for interim payment in the sum of $200,000.  On behalf of the Respondent, counsel has argued that the Court has no jurisdiction to order interim payment.  I do not understand counsel’s argument as meaning that the court has no jurisdiction in general to grant interim relief in the form of interim payment in a proper case.  Counsel’s argument is case-specific.  If I have correctly understood his argument, counsel is saying that the first three items of relief that will be sought at the substantive hearing, i.e. certiorari, mandamus and declaration, do not involve, by themselves, any obligation to make payment as such.  In other words, they are not monetary relief in nature.  Since they are not monetary relief in nature, there is no question of the Court ordering any interim payment pending the determination of the application for these items of non-monetary relief at the substantive hearing.

4.  That leaves the last item of relief, i.e. damages.  That is, no doubt, monetary relief.  However, counsel has submitted to the Court that the Applicant does not have a private law cause of action for damages against the MIB.  His recourse for common law damages is against the unidentified wrongdoer.  Counsel is prepared to argue on the basis – for the purpose of resisting today’s application only – that there is a public law cause of action against the MIB for relief, but the relief that the Applicant could get in these public law proceedings would not be damages.  Here I must make clear that the primary stance of the MIB is that its decisions are not amenable to judicial review at all. 

5.  I agree with counsel.  Mr Burke, representing the Applicant at this hearing, has not referred this Court to any authorities to say that an applicant for payment under the relevant MIB agreement has a personal or private cause of action for damages against the MIB.  Nor is there any authority to say that such an applicant has any claim for damages under public law against the MIB. 

6.  The general principles that have been set out in textbooks like English Public Law edited by Professor Feldman, are clearly to the effect that damages are not available to compensate those who have suffered as a result of actions or decisions that are unlawful in the public law sense of that term, save in very limited circumstances (see para. 18.72).  So even if the Applicant should manage to make out his case at the substantive hearing, that would not, on the facts of the present case and as presently advised, give rise to any claim for damages against the MIB.  So counsel’s point in relation to the last item of relief, i.e. damages, is that it is doomed to failure. 

7.  Summarising counsel's arguments, he is in fact saying that as the entire relief - leaving aside the doomed claim for damages - that the Applicant will be seeking at the substantive hearing is non-monetary in nature, by definition, the Court should not grant interim relief in terms of interim payment in favour of the Applicant. 

8.  I could think of situations where that argument might not be correct, particularly in a private law action, because sometimes, even though the ultimate or permanent relief that is sought by a plaintiff may be non-monetary in nature, the court could, and would in appropriate cases, be prepared to grant interim relief of a monetary nature.  However, on the facts of the present case, I fail to see how this could be done in favour of the Applicant, given the nature of the relief that he is seeking – disregarding the doomed claim for damages (as presently advised).

9.  It may be that, upon further research and arguments, there could be a claim for damages.  I must make myself clear here:  what I have said about the relief for damages in this judgment is meant only for the purpose of deciding the present application for interim relief.  I do not want to shut the door on damages against the Applicant at the substantive hearing.  But for the purpose of disposing of today’s application, I fail to see any prospect for the award of damages at the substantive hearing. 

10.  I have therefore come to the conclusion that, at least for the purpose of today’s hearing, counsel’s submission is correct. 

11.  In deciding whether to grant interim relief, the Court has a discretion to exercise.  I think this point about the nature of the relief sought and therefore whether interim relief in the form of interim payment should be ordered is a fairly material and, indeed, overwhelming factor in considering how the Court should exercise its discretion.  For the sake of completeness, I should add that I have also borne in mind other factors, particularly the concern for costs and so forth, as well as the fact that the Applicant is legally aided and, therefore, to that extent, so long as he remains legally aided, the Respondent's, i.e. the MIB's, position as to costs is protected. 

12.  I have taken all these matters into account but, as I say, the almost overwhelming factor in the present case is the nature of the relief sought in these judicial review proceedings.  So having considered all relevant factors and matters, and in the exercise of my discretion, I refuse the application.

[Submission on costs]

13.  Costs of today's hearing, including the underlying application, be paid by the Applicant to the Respondent in any event, to be taxed if not agreed.  Legal aid taxation of the Applicant’s own costs.