SUN JIANQIANG v. CHAN TAI KAU AND ANOTHER

HCPI 1375/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1375 OF 2000

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J U D G M E N T

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1.  This is an appeal by the 1^st and 2^nd defendants against the costs order contained in paragraphs 7 and 8 of Master Ko’s Order made on 8 September 2008.

Background

2.  This matter came before Master Ko on 8 September for assessment of damages.

3.  When that hearing started, the plaintiff applied for leave to obtain an update medical report due to the fact that there had been a recent development of a lump or protrusion forming on his shin and that he would need to obtain an update medical report to show that the lump or protrusion was due to the accident, the subject of this claim. 

4.  The application for leave to obtain the update medical report was objected to by the defendants.

5.  The Master heard arguments from the parties for the entire day on this application.  After hearing arguments, the Master ruled in favour of the plaintiff and granted the leave sought by the plaintiff.  Consequent upon granting leave to the plaintiff for the further medical report, the hearing of the assessment had to be adjourned.

6.  The parties then further addressed the Master as to costs including the costs occasioned by the hearing having to be adjourned.

7.  The entirety of the Order made by the Master comprised 12 paragraphs and is contained in its entirety in the defendants’ Notice of Appeal dated 19 September 2008.  The defendants’ appeal only relates to paragraphs 7 and 8 of that Order of the Master which deals with the costs of the hearing on that day (8 September 2008) and the costs occasioned by the adjournment of the assessment hearing.  Apart from paragraphs 7 and 8 of that Order of the Master, the defendants do not appeal against any other part of that Order.

The defendants’ appeal

8.  It was originally thought by the defendants that they needed leave to appeal since the appeal was only on costs.

9.  However, it is now accepted by both parties that leave was not required even though the appeal only related to costs (see Honnin Development Limited v. Ho Ming,HCA1637/1999).

10.  The two costs orders (paragraphs 7 and 8 of the Master’s Order) appealed against by the defendants are :

“7.  Costs of today’s hearing be paid by the Defendants to the Plaintiff in any event.

8.  Costs occasioned by the adjournment of the Assessment of Damages (excluding today’s costs) be to the Defendants in any event.”

11.  The grounds of appeal put forward by the defendants in this appeal are that :

(a)  the Master erred in law in that the Master applied the general rule that “costs to follow the event” as though it was an absolute rule and failed to recognize that there are qualifications to this general rule;

(b)  the Master failed to take into account those matters (set out in paragraphs 14 of defence counsel’s skeleton arguments) which would have taken it outside the general rule that costs should follow the event; and

(c)  that there was a breach of natural justice in that the defendants were not given the opportunity to deal with the costs orders which the Master ultimately made because those costs orders were not sought by the plaintiff.

12.  These matters (set out in paragraph 14 of defence counsel’s skeleton arguments) which the defendants submit would have taken the matter outside the general rule that costs should follow the event can be summarized as follows :

(a)  Between 19 August and 4 September 2008, the letters from the Legal Aid Department to the defendants’ solicitors suggesting a further joint medical examination for the plaintiff only stated that the plaintiff had been in persistent pain and was advised by his doctor that he needed surgery and that the plaintiff’s instructions were that his condition had deteriorated.

(b)  Only on 5 September when the plaintiff’s application was served with an affirmation of Nick Lee that it was stated for the first time that “recently he had noticed a swelling … on his left shin ...and experienced numbness in his left ankle… and also pain in the swollen part of his left shin”.

(c)  On the morning of 8 September the defendants’ solicitors were served with the plaintiff’s own affirmation which the defendants’ legal advisers needed time to read.

(d)  No information was volunteered by the plaintiff’s team as to why the application was made so late and no information given as to exactly when “recently” it was that the plaintiff noticed the swelling.  Such request was resisted by the plaintiff’s team even when specifically asked for by the defence but which was important to decide whether there had been undue delay.

(e)  The Master relied heavily on the plaintiff physically showing him the swelling on his shin in court (at about 12:20 p.m.  during plaintiff’s counsel’s submission) in granting the application to form the view that this was a new development.

(f)  Such preparation by the plaintiff’s team resulted in pertinent evidence emerging bit by bit in the course of the hearing.

(g)  In the circumstances, it could not reasonably be said that the defendants should not have opposed the plaintiff’s application.

Decision

13.  As to the first point taken by the defendants that the Master erred in law in failing to realize or appreciate that the normal rule that costs follow the event had its qualification or exception, I cannot accept that submission by the defendant.

14.  It is quite apparent to me from a reading of the transcript of what fell from the lips of the Master, that he well realized that to be a “normal” rule and not, as suggested by Miss Lau, an absolute rule.

15.  The Master did refer to that rule as “the normal rule” at least in two separate parts of his ruling, in paragraph (2) at page 75 of the transcript (page 249 of the Appeal Bundle) and again when he said “Costs normally follow the event” at letter H page 79 of the transcript (page 253 of the Appeal Bundle).

16.  On the second point submitted by the defendants that the Master had failed to take into account the various matters submitted by Miss Lau as contained in paragraph 14 of her skeleton arguments, I cannot accept that submission either.  Those matters submitted by Miss Lau were either matters which had occurred during the day of the hearing before the Master (e.g. the granting of time to the defendants to deal with matters related to the plaintiff’s application) or were matters that were submitted to the Master by the defendants in their objection to the plaintiff’s application.

17.  Such matters were clearly in the forefront of the Master’s mind when dealing with the plaintiff’s application as can be seen in the Master’s ruling on the application when he summarized the objections raised by the defendants from pages 61 to 65 of the transcript (being pages 235 to 239 of the Appeal Bundle).

18.  In the present appeal, the defendants are effectively saying that had the Master taken into account all of the matters which the defendants submitted that the Master failed to take into account, the Master would have come to the conclusion that the defendants’ objection to the plaintiff’s application for further medical evidence was a reasonable one given the circumstances.

19.  In my view, that does not necessarily follow.

20.  Looking at the entirety of the ruling given by the Master and the way he dealt with it, it is quite apparent that what was operating in the mind of the Master when he made his ruling on costs was that the objection by the defendants to the plaintiff’s application was done in an attempt to exclude the possibility that the plaintiff’s present complaint was related to the accident.  This was what the Master said at page 62 of the transcript (page 236 of the Appeal Bundle) :

“In my view, what the defence is attempting to do here is to invite me to exclude the possibility that the present complaint of the plaintiff may be related to the accident.  I do not think this is appropriate.  First, the defence’s doctor has noted in March 2001 of an injury to the plaintiff’s left shin.  The plaintiff has further demonstrated at the hearing today that there is really a lump or protrusion at his left shin.

If I deny him the opportunity to be examined further, that would mean that he would not have any medical evidence from any Hong Kong doctors to further his claim that such condition is indeed related to the accident.”

21.  Moreover, the Master took the view that the objection of the defendants to exclude the further medical evidence sought by the plaintiff, was made despite the fact that the defendants’ expert has, back in March 2001, made reference in his report to the shin injury.

22.  Given these circumstances, the Master can in no way be faulted for taking a view that the objections made by the defendants to the plaintiff’s application for further medical evidence was unreasonable, and therefore the normal rule that costs is to follow the event should be adopted.

23.  Indeed, Miss Lau accepts that before the Master she had missed that reference by the defendants’ expert in his medical report of March 2001 alluding to the shin injury of the plaintiff, and that it was the plaintiff’s counsel who had drawn the attention of the Master to same.  Miss Lau says that was due to insufficient time being given to her because that application by the plaintiff was made late in the day.  In this respect I note that she had only asked for 15 minutes from the Master on the morning of 8 September but in fact that adjournment granted to her came to over an hour.  Nor did she ask for any more time after the resumption.

24.  In the present case, the Master must have given much more weight to the view taken by him as to why the defendants were objecting to the plaintiff’s application and less weight to the matters that the defendants would have liked him to take account of.  In so doing the Master was exercising his discretion in the matter.  Even if another arbiter would have apportioned different weight to the matters to be considered, that would not, per se, be a wrong exercise of discretion by the Master.

25.  As for the second point relied on by the defendants, namely the breach of natural justice, the basis for that was not that the defendants were not given any chance to be heard on costs before the costs order was made by the Master.  That the defendants’ counsel was heard on the matter of costs cannot be disputed since there is a full transcript of what took place before the Master in the hearing bundle and that transcript showed counsel for both sides were given every opportunity to address the Master on the matter of costs.

26.  It appears that what the defendants are saying is that because the costs order now appealed from were not what was sought by the plaintiff’s counsel before the Master (when plaintiff’s counsel only asked for the costs to be reserved) therefore the defendants did not address the Master on those costs orders ultimately made by the Master, the subject of this appeal.

27.  Ido not see that as a breach of natural justice.  When a court is dealing with costs orders in similar circumstances as the present case before the Master, the costs orders which can be made are usually wide ranging since costs are always discretionary.  At times the court may not accede to what is suggested by both parties preferring some other costs orders not suggested by either side.  Once a party is on his/her feet addressing the court on costs, it is for the party to cover those possibilities open to the court.

28.  In the present case, both counsel were heard on costs by the Master before the costs orders were made by him. 

29.  I do not accept that the costs orders made by the Master was in breach of natural justice.

30.  In the final analysis of this present case, I agree with Miss Cruden that the two costs orders, the subject of this appeal, were within the realms of the Master in the exercise of his discretion to make.

31.  For the reasons given above, I do not accept that there was any wrongful exercise by the Master of his discretion in the matter and this appeal is dismissed.

32.  There will be a cost order nisi that the cost of the appeal be to the plaintiff in any event.