CHUNG YUEN YEE v. SAM WOO BORE PILE FOUNDATION LTD AND OTHERS

HCPI 1053/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1053 OF 2006

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DECISION ON COSTS

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1.  In this Decision, unless otherwise stated, I shall continue to use the terms and abbreviations defined in my Judgment dated 17 October 2008 (“the Judgment”).

2.  To recap, I allowed the appeal by the 1^st, 3^rd and 4^th Defendants (“the Defendants”) from Master B. Kwan’s decision dated 15 April 2008 dismissing their application for leave to adduce expert evidence as set out in Dr Chung’s report dated 6 February 2008 but dismissed their appeal in respect of Dr Wong’s report dated 5 February 2008. 

3.    I also made an order nisi that the costs of the application before the Master be costs in the cause and that the costs of the appeal be to the Defendants in any event, both to be taxed if not agreed.

4.    Neither party quarrels with the order nisi regarding the costs of the application before the Master. 

5.    The Plaintiff applies to vary the order nisi as to the costs of the appeal.  It is submitted on his behalf by Mr Andy Hung that the costs of the appeal should also be costs in the cause for the following reasons:

(1) The trial judge, unlike the court at this stage, would be able to examine the validity of the various propositions put forward by Dr Chung and make judgment as to whether the report is of relevance, or of any probative value, or not.

(2) There was prima facie the Coroner’s criticism of Dr Chung’s written report and live testimony at the Death Inquest.

(3) The Defendants failed in their appeal in respect of Dr Wong’s report.

Alternatively, the Plaintiff relies upon (3) as supporting an order that there be no order as to the costs of the appeal.

6.  With regard to expert evidence, one has to distinguish between 2 different questions: the relevance or probative value of the evidence which governs admissibility and the validity of the evidence which determines whether it should be accepted by the court.  The second question is for the trial judge.  Only the first question was before me.

7.  While there are cases where the relevance or probative value of the proposed expert evidence may not be readily apparent at the interlocutory stage and the evidence is admitted only on the basis that it is not plainly irrelevant or of no probative value, Dr Chung’s report does not fall into this category of cases.  For the reasons set out in the Judgment, in particular, paragraphs 33 to 39 thereof, Dr Chung’s report is clearly relevant to the issue of the immediate cause of the Accident.  As noted in paragraph 38, it questions the assumption adopted in the expert evidence relied upon by the Plaintiff that the snapping of Chain A set in motion the fall of the Truck and disagrees with the 2 reasons advanced by Mr Chan to explain why Chain A could snap when the load of the Truck was within its loading capacity.

8.  Dr Chung may or may not be right.  I was mindful that the trial judge may or may not accept his expert evidence and that the Defendants’ defence may or may not succeed with the same.  That was why I ordered the costs of the application before the Master to be costs in the cause.  However, the possibility that the Defendants may afterall fail in their defence even with Dr Chung’s evidence can be used to justify a costs order that would deprive them of the costs of the application for leave to adduce such expert evidence in case they fail in their defence only at first instance. 

9.  On the Defendants’ appeal, the question was whether the Master correctly excluded the 2 expert reports sought to be adduced by these defendants.  I allowed the appeal insofar as Dr Chung’s report was concerned.  The Plaintiff did not have to resist, and he should not have resisted, the appeal concerning Dr Chung’s report.   To make the costs of such appeal costs in the cause of the action would have the effect of giving a party a licence to appeal, or to oppose an appeal, against an order granting/refusing leave to adduce expert evidence without any penalty in costs so long as that party should eventually succeed in his claim/defence.  That cannot be right. 

10.  I dealt with the Coroner’s criticism of Dr Chung’s opinion in paragraph 24 of the Judgment.  For present purpose, I understand that the Plaintiff places reliance upon such criticism again to stress the point that the trial judge may well disregard Dr Chung’s evidence since the Coroner had done so.  That being the case, it is the same point as the first one and can be answered in the same way.

11.  However, I do see force in the point that the Defendants had failed in their appeal regarding Dr Wong’s report.

12.   The hearing before me took place before the coming into force of the Civil Justice Reform.  Ms Queenie Ng, Counsel for the Defendants, relies upon the 4 principles governing the award of costs set out by Nourse LJ in In re Elgindata Ltd (No 2) [1992] 1 WLR 1207 (CA), which were restated by Yuen JA in Wang Din Shin v Nina Kung, CACV 67/2003, unreported, 19 April 2005, at §39 with reference to the applicable Hong Kong rules as follows:

“(i) Costs are in the discretion of the court [Order 62 rule 2(4) RHC];

(ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made [Order 62 rule 3(2) RHC];

(iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or part of his costs;

(iv) Where the successful party raises issues or make allegations ‘improperly or unreasonably’ [in Hong Kong, ‘improperly or unnecessarily’], the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs [Order 62 rule 7(1) RHC].”

13.   Ms Ng says that there was only one broad issue before me, that is, whether the Defendants could adduce expert evidence on liability; that the arguments before me were focused upon Dr Chung’s report with the parties and the court spending very little time on Dr Wong’s report and that the Plaintiff has not pointed to any misconduct by the Defendants in the conduct of the appeal.

14.   There is a difference between the situation where a party is seeking a single remedy, in the pursuit of which he succeeds on some issues and fails on others and the situation where a party is making a number of discrete claims for different remedies.  In the latter case, where the party fails on some of his claims, and where the court can isolate the time spent on these claims from that spent on the successful claims, the court could and should exercise its discretion in appropriate cases to make costs orders that reflect the time spent on the failed claims.  See Thomas Vincent v South China Morning Post Publishers Ltd [2004] 3 HKLRD 471 (CA), per Yuen JA at 474, §11.  In that case, the plaintiff made three discrete claims against his former employer under various heads.  He succeeded as to two claims and failed as to the third.  The trial judge awarded him all his costs.  The Court of Appeal allowed the defendant’s appeal in respect of one of the claims.  The net position was that the plaintiff only succeeded in respect of one claim.  With regard to the costs at first instance, the Court of Appeal ordered the defendant to pay only one-third of the plaintiff’s costs.  The Court of Appeal declined to order the plaintiff to bear the defendant’s costs relating to the failed 2 claims only because the part of the Employment Ordinance upon which such claims rested was relatively new with no case law.  As for the appeal, the plaintiff was ordered to pay the defendant two-thirds of the costs of the appeal and the defendant pay the plaintiff one-third of the costs of appeal, liability to be set-off.

15.   Although the Court of Appeal in Thomas Vincent was dealing with the costs of an action after trial and the costs of an appeal after trial, I see no objection in principle to the same approach being adopted in relation to the costs of an appeal from an interlocutory order concerning 2 separate expert reports, one of which is admissible and the other inadmissible.  Although the application before the Master was made by a single summons, there were effectively 2 discrete applications, one for each expert report.  

16.   On the other hand, I disagree with Mr Hung that the court could appropriately reflect the Defendants’ failure to have the exclusion of Dr Wong’s report reversed by making the costs of the appeal costs in the cause of the action or by making no order as to such costs.

17.   With reference to Counsel’s written submissions, my notes of their oral submissions and the Judgment and looking at the matter in the round, I would say that the arguments on Dr Wong’s report added to the time spent by 20%.  In the circumstances, the Plaintiff should pay the Defendants only 80% of their costs of the appeal and the Defendants should pay the Plaintiff 20% of her costs of the appeal, liability to be set-off.  And I so order.

18.    Although I have not made the costs order sought by the Plaintiff, the order that I have made is in her favour.  I therefore also order the Defendants to pay the Plaintiff the costs of her application to vary the costs order nisi, to be taxed if not agreed.  The Plaintiff’s own costs should be taxed in accordance with the Legal Aid Regulations.