LAM SUM CHIT v. CHENG MAN KING t/a CHUNG TIN ENGINEERING CO AND OTHERS

DCEC 2262/2015

[2018] HKDC 1139

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2262 OF 2015

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RULING ON COSTS

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1.  At the directions hearing on 7 September 2018, I reserved the costs of the hearing due to the parties’ disagreement on the liability for the costs of an application before the hearing.

2.  On 22 March 2018, the respondents, by letter through their solicitors, Messrs. Deacons, asked the court to compel the applicant “to make discovery by production of the breakdown of the assessment of the loss of earning capacity in the Certificate of Assessment (Form 7) dated 30 October 2017” (“Application”).

3.  The respondents required a breakdown of the assessment because in the Form 7 certificate, the applicant was assessed to have suffered 5% loss of earning capacity from a combination of orthopaedic and psychiatric injuries. The respondents believed that a breakdown of the percentage would help them decide whether the assessment was reasonable.

4.  Notwithstanding that on 23 March 2018 the applicant’s former solicitors, Messrs. Candy Ho & Co, furnished to Deacons a written breakdown of the percentage assessed by the Labour Department, Deacons submitted (in their letter of 4 April) that the applicant should pay the costs of the Application for the reason that the applicant had refused to give consent to the Labour Department for the release to the respondents of the breakdown of the assessment. Deacons further pointed out that Candy Ho, despite having received the breakdown of the assessment from the Labour Department on 12 March 2018, only furnished the breakdown after the Application.

5.  I agree with Deacons’ submissions.  According to the letter dated 8 February and an email reply dated 3 April 2018 from the Labour Department, it is patently clear that despite the Labour Department’s request on 12 January to the applicant’s solicitors for the giving of consent to the release of the breakdown of percentage information to the respondents and a follow-up telephone call on 2 February 2018, the Labour Department was not able to obtain any consent. 

6.  Since the breakdown of the assessment from the Labour Department to Candy Ho is shown to have been dated 12 March 2018, Deacons are therefore correct in stating that the applicant only disclosed the breakdown when he was confronted with the Application.

7.  In the circumstances, I find that the Application was wholly occasioned by the applicant’s refusal to give consent to the Labour Department as well as his failure in furnishing to the respondents the information on the breakdown of the assessment in a timely fashion.  In my view, it is fair that the applicant should pay for the costs of and occasioned by the Application. 

Order

8.  I made a costs order that the applicant do pay to the respondents, in any event, the costs of and occasioned by the Application (i.e. the application contained in Deacons’ letter dated 22 March 2018).

9.  For the purpose of taxation, I order that the costs above shall include the costs of:

(i)   Deacons’ letters to the court dated 22 March, 4 April and 10 April 2018;

(ii)   Deacons’ considering the letters from Candy Ho to the court dated 23 March and 6 April 2018; and

(iii)   Attendance at the directions hearing on 7 September 2018.

10.  These costs are to be taxed if not agreed.

11.  The applicant’s own costs after 8 August 2018 (when the applicant was granted legal aid) shall be taxed in accordance with the Legal Aid Regulations.