TSE NGAN HEUNG v. THE RITZ-CARLTON LTD AND OTHERS

HCPI 565/1999, HCPI 570/2000
& HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.565 OF 1999

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AND

PERSONAL INJURIES ACTION NO.570 OF 2000

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AND

PERSONAL INJURIES ACTION NO.658 OF 2000

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(Consolidated pursuant to the Order of the
Honourable Mr Justice Seagroatt dated the 21^st day of July 2000)

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D E C I S I O N

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1. This is an application made by Ming An Insurance Co. (HK) Ltd (“Ming An”), being the 3^rd defendant in the consolidated actions herein, by Summons dated 17 November 2005for directions.

2. This matter has a chequered history to it, and it is essential to know the background leading to this application.

Background

3. On 9 March 1998, there was a car accident in which the two plaintiffs in the consolidated actions, being Tse Ngan Heung (“Tse”) and Chan Yuet Lai Rebecca (“Chan”) were injured by a car driven by Lo Sin Tak (“Lo”).

4. Lo was at the time of the accident a car-jockey employed by a hotel, being the Ritz-Carlton Ltd (“the Hotel”).

5. The car driven by Lo at the time was owned by Parklane and rented to the Hotel.  The car was insured by Ming An.

6. As a result of the accident, Tse and Chan instituted actions for damages for personal injuries against Lo and the Hotel, but not Parklane.  Ming An was allowed to join in the actions as the 3^rd defendant to protect its interests because it had potential liabilities and obligations under the MIB Agreement since Lo was an uninsured driver and a person of little means.

7. After the trial on the issue of liability only, Seagroatt J, on 18 January 2001, ordered Interlocutory judgment (with damages to be assessed) in favour of Tse and Chan against Lo but found the Hotel not liable.

8. On 23 November 2001, Ming An appealed against Seagroatt J’s finding the Hotel not liable but the appeal was dismissed by the Court of Appeal.

9. On 7 January 2002, damages were assessed by Jackson J in respect of Chan at totally $19,243,576 against Lo.  This total sum was inclusive of $51,935 being interests on PSLA and $302,754 being interests on Specials.

10. On 10 January 2002 damages were assessed by Master Chan in respect of Tse at totally $1,001,775 against Lo.  Again this total sum was inclusive of $18,315.07 being interests on PSLA and $8,505.93 being interests on Specials.

11. Between 3 June 2002 and 8 January 2003 Ming An paid to Chan and Tse the total amounts of damages assessed in their favour against Lo.

12. On 4 December 2002, upon further appeal by Ming An on the issue of liability, the Court of Final Appeal allowed Ming An’s appeal and held that the Hotel was also (together with Lo) liable to Tse and Chan for the accident.

13. Prior to the decision of the Court of Final Appeal, Chan and Tse had assigned their rights in their claims in the consolidated actions to Ming An by assignments on 25 September 2002.

14. The Hotel was notified and provided with copies of such assignments together with notice under section 9 of Law Amendment and Reform (Consolidation) Ordinance on 11 December 2002.

15. On 19 December 2002 the Hotel paid Ming An $20,245,351 being the aggregate of $19,243,576 assessed as total damages in favour of Chan and $1,001,775 assessed as the total damages in favour of Tse.  The Hotel also paid a further sum of $72,107 as representing interests on the two judgment sums in favour of Chan and Tse calculated at 8.125% from 4 December 2002 (being the date of the judgment by CFA) to 19 December 2002 being the date of payment by the Hotel.

16. Not contented with that, Ming An claims that it is also entitled to recover post-judgment interests from the Hotel as the assignee of Chan and Tse.

17. In this respect, Ming An took out a summons for “reimbursement” for the outstanding payment of interests.  That application was heard on 25^th April 2003 but was dismissed by Jackson J.  Written Reasons were later given on 5 May 2003.

18. Ming An appealed against that decision by Jackson J and the appeal came before the Court of Appeal on 17 December 2003.  That appeal was adjourned sine die (inter alia) upon indication by the Court of Appeal that interlocutory judgment had not yet been formally entered against the Hotel in favour of Tse and Chan pursuant to the judgment of the CFA of 4 December 2002.

19. Thereafter, interlocutory judgment was formally entered against the Hotel in favour of Chan and Tse on 12 June 2004.

The present application

20. By this Summons dated 17 November 2005, Ming An, as the assignee of Chan and Tse, seeks direction to proceed to assessment of damages pursuant to the Interlocutory judgment entered against the Hotel and pursuant to Order 37 rule I of the Rules of High Court.

21. Directions having been given (on 20 January 2006) that the Hotel be bound by the assessment of damages made by Jackson J and Master Chan, in favour of Chan and Tse respectively in this matter, the hearing itself became a preliminary hearing, pursuant to those directions, to determine whether the Hotel would be liable for the interests now claimed by Ming An.

22. The stance taken by Ming An is that the Hotel is liable to Ming An (as assignee) for interests in two respects :

(a)	for the amount of $592,072.59 (details of which appears in paragraph 3(p) of the skeleton submission of counsel for Ming An) being post-judgment interests which Ming An was obliged and compelled to pay and did pay Tse and Chan under both final judgments against Lo; and
(b)	for post-judgment interests from the date of judgment against Lo up to the date of payment by the Hotel to Ming An (i.e. 19 December 2002) and from that date to the present (computation of such interests were handed to court encompassing 3 different scenarios for the calculation of post-judgment interests which range from $1,806,680 to $1,319,881).

23. At all times it was accepted by Ming An that the Hotel had paid Ming An the principal amounts of the assessments made by Jackson J and Master Chan in favour of Chan and Tse respectively and that the Hotel had also paid Ming An $72,107 as being interests from 4 December 2002 (date of judgment of the CFA) to 19 December 2002 (date of payment by the Hotel).

24. In bringing this application, Ming An has stressed the fact that this application is brought under its entitlement as an assignee of Chan and Tse, alternatively under its Order 16 notice, which is a fall back position.  In so doing, Ming An has expressly declined to bring a restitution action despite that suggestion having been made to it by the Court of Appeal during the hearing on 17 December 2003 when Ming An appealed from the decision of Jackson J.

Decision

25. As can be seen from the background leading up to this matter, this matter is complicated not only by the fact that Ming An is not the normal kind of plaintiff in a personal injuries action, but its entitlement springs from being an assignee of Chan and Tse having paid off the two of them.  It is also further complicated by the fact that the subject of this dispute is not the principal amounts assessed but only post-judgment interests.  The third complication arise from the fact that the Hotel was only adjudged to be liable by the CFA, needless to say therefore, some time after judgment (both interlocutory and final), had been entered against Lo.

26. In pressing for its claim for post-judgment interests, Ming An is faced with difficulties arising from such complications, which cannot be said to be simply of a technical nature.

27. The first and probably the most crucial of such difficulties for Ming An to overcome is that as yet there is no final judgment against the Hotel.  Despite there being no final judgment against the Hotel, Ming An is seeking post-judgment interests against it.

28. Secondly, Ming An accepts that the principal amounts assessed as damages (which include pre-assessment interests) in respect of both Chan and Tse have already been paid by the Hotel to Ming An on 19 December 2002.  Despite such concession, Ming An attempts to quantify its claim for post-judgment interests for the period after 19 December 2002 on the basis of the principal sums assessed in both cases (at least for Scenario 2, albeit giving credit for the principal amounts paid).

29. Having identified some of the difficulties faced by Ming An in pressing for such a claim, I have come to the conclusion, not without considerable difficulty, that I am unable to entertain this claim by Ming An for the following reasons.

30. Even as matters stand at present, there is only interlocutory judgment entered against the Hotel on 12 June 2004, and even that only at the insistence or reminder of the Court of Appeal during the hearing on 17 December 2003.

31. I do not see how Ming An can claim for post-judgment interests from the Hotel before there is a final judgment against the Hotel.

32. In this respect, the suggestion by counsel for Ming An for me to exercise the discretion provided for by section 48(3) of High Court Ordinance, by ordering that interests is to run from the date of the judgment given against Lo is quite unreal.  If that is done, it will be done solely for the purpose of enabling Ming An to claim for post-judgment interests which otherwise it will not be able to.  I decline such suggestion.

33. Turning now to deal with the $592,072.59 which was interest paid by Ming An to Chan and Tse but not repaid to it by the Hotel.

34. In so far as this amount is concerned, it was post-judgment interest which Ming An had to pay by reason of having taken time to pay off Chan and Tse for the assessed amount of damages.

35. I would have had the same sentiments as expressed by Jackson J in the penultimate paragraph of his written Reasons given in this matter on 5 May 2003, however, the stumbling block standing in that way of that is that Ming An has refused to bring a restitution action but insists on going about this matter in the way that it has, namely a claim for post-judgment interests.

36. In choosing to claim for post-judgment interests rather than to bring a claim for restitution, Ming As has put even this amount of $592,072.59 out of its reach.

37. Finally, I accept the suggestion of Mr Bharwaney, counsel appearing for the Hotel, that Ming An, in pursuing the matter in the way that it has chosen, is effectively attempting to gain a windfall which it is not entitled to.  The simple reason for that is because as the assignee of Chan and Tse, Ming An could not have gotten more than what Chan and Tse would have been entitled to.  What Ming An is now seeking is far beyond what Chan and Tse would have been entitled to.

38. For these reasons it is clear that Ming An would have been entitled to a claim for restitution and had that been brought, Ming An likely would have recovered the $592,072.59 or, if not that entire sum, at least a part of it depending on the defence raised to such a claim for restitution by the Hotel.

39. As matters now stand, and for the reasons given above, I come to the conclusion that Ming An’s claim against the Hotel must be dismissed.

40. Accordingly, this application brought by Summons dated 17 November is dismissed with costs (order nisi).  The costs order nisi covers all of the hearings which took place as a result of the Summons.