OR BIK YUK v. MAXWAY CORPORATION LIMITED t/a CHEUNG HING FOODS MART

HCPI 621/2017

[2020] HKCFI 2147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 621 OF 2017

________________________

_______________________

________________

D E C I S I O N

________________

1.  On 12 November 2019, Judgment was given in this personal injuries action after trial in favour of the Plaintiff against the Defendant in the sum of HK$570,400 with interest. An order nisi was made for the costs of the Plaintiff to be paid by the Defendant, and for her own costs be taxed in accordance with Legal Aid Regulations.

2.  There are before the court 2 Summonses for the variation of the costs order nisi.  By her Summons filed on 26 November 2019, the Plaintiff asks for: (a) the costs of this action to be paid by the Defendant on High Court scale up to 2 December 2018 and thereafter on District Court scale; (b) the Plaintiff’s costs after 11 October 2019 be taxed on indemnity basis; and (c) the Defendant shall pay enhanced interest on the Plaintiff’s costs at 10% above judgment rate (or at such rate as the court sees fit) after 11 October 2019.

3.  By a Summons filed on the same day, the Defendant seeks variation of the order nisi such that there be no order as to costs of the Action.  Alternatively, the Defendant to pay the Plaintiff’s costs on District Court scale “in the proportion as the court deems fit”.

4.  The Plaintiff’s application is premised upon a Sanctioned Offer dated 13 September 2019[1] (the last day for acceptance was 11 October 2019) by which she proposed to settle these proceedings on, inter alia, payment to her of the sum of HK$360,000 based on 15% contributory negligence on her part.

5.  Instead of accepting the Sanctioned Offer, on 17 September 2019 the Defendant made a counter-offer by letter of its solicitors to settle the proceedings at HK$220,000 with no order as to costs.

6.  It is indisputable that by the Judgment the Plaintiff had beaten the Sanctioned Offer comfortably.  No contributory negligence was found against her.  The trial could have been avoided had the Defendant accepted the Sanctioned Offer.

7.  On behalf of the Plaintiff, Mr Szeto submitted that the Defendant has established no satisfactory reason to justify a departure from the “clear-cut” consequences on costs and interest provided under O 22, r 24 of the RHC: see Ng Yuek Lang Sophia v Chiu King Wa [2019] 4 HKLRD 364 at §§ 9-14 and 17-21.

8.  It is clear from O 22, r 4(4) that having failed to beat the Sanctioned Offer, there is little scope for the Defendant to argue against the prescribed consequences as sought in the Plaintiff’s Summons, unless the court considers it unjust to grant the order.

9.  On behalf of the Defendant, Mr Yiu submitted that: (a) the Plaintiff had greatly exaggerated her claim (the damages awarded were a fraction of the HK$4.18 million claimed in her Revised Statement of Damages); (b) for cost-effectiveness, the proceedings should have been initiated in the District Court instead of the CFI (see May Fung Co Ltd v Wing Lung Industrial Ltd [2009] 5 HKLRD 590); and (c) the Sanctioned Offer was only made after this case had been put on the Warned List, and by then substantial costs had been incurred.

10.  These submissions also constituted the bases of the Defendant’s Summons. 

11.  I shall address each of the Defendant’s contentions.  Firstly, it is difficult to escape the conclusion that the pleaded claim of the Plaintiff was, to use a neutral term, highly optimistic. However, I do not see this as constituting any injustice to the Defendant for the present purpose.  A personal injuries action is a money claim.  It was always open to the Defendant to protect itself against an exaggerated claim by making use of the statutory provisions for sanctioned payment.  Had the Defendant made a reasonable sanctioned payment, and if that was not accepted, the table would have been turned against the Plaintiff. 

12.  Secondly, as submitted by Mr Szeto, the civil jurisdiction of the District Court was limited at HK$1 million at the time when this action was started.  It was increased to HK$3 million as from 2 December 2018.  Hence, relief (a) sought in the Plaintiff’s Summons (see para 2 above).

13.  The case of May Fung Co Ltd is distinguishable in that it was a defamation action in the High Court and the amount of damages sought by the plaintiff was within the jurisdiction of the District Court.  In this case, the Plaintiff had suffered serious personal injuries and her condition would, and did, continue to evolve after this action was started.  I therefore accept Mr Szeto’s submission that the Plaintiff cannot be criticised for revising her claim downwards after receiving advice from counsel and in light of her improved condition.  I am unable to agree that this action should have been started in the District Court, bearing in mind the condition of the Plaintiff and the medical evidence.

14.  Thirdly, I do not believe that the “lateness” of the Sanctioned Offer had resulted in unfairness to the Defendant.  The issue is whether there was sufficient time for the Defendant to make an informed decision whether to accept the Sanctioned Offer.  There clearly was.  The trial did not begin until 8 November 2019, nearly 1 month after the expiry of the 28-day period during which the Defendant was free to accept the Sanctioned Offer (see O 22, r 16(1)).

15.  For these reasons, I accede to the Plaintiff’s Summons, save that interest on costs should be limited to 5% p.a. and payable after 11 October 2019.  The costs of the Summons be to the Plaintiff.

16.  The Defendant’s Summons is dismissed with costs to the Plaintiff.

17.  There be taxation of both sets of costs orders in the absence of agreement, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.