LAW CHEUK v. CHAN FUNG LUEN MARGARET

HCPI 701/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 701 OF 2006

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D E C I S I O N

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1.  On 17 June 2008, I dismissed this Master’s appeal, brought by the plaintiff, with an order nisi that the costs on the appeal be costs in defendant’s costs in the cause.  Now, by an exchange of letters, the solicitors for the defendant ask that the costs on the appeal the to the defendant in any event.

2.  The plaintiff’s solicitors, correctly, remind me that an application to vary the costs order nisi should be by way of summons, and not by letter: see MA CJHC, at para 11 in PCCW-HKT Telephone Ltd v Telecommunications Authority, (Unreported), CACV 274/2003.  The reason for this requirement as to enable the other side and the Court to understand exactly the nature and extent of what is being sought.

3.  That is of course quite right.  But in the present case, as there is no suggestion by the plaintiff that they did not understand exactly the nature and extent of what was sought, I will, on this occasion, determine the issue on the basis of letters.

4.  In essence, the submission made in support of the argument on costs to the defendant is that the plaintiff has failed in every point taken on the appeal.

5.  In response, the plaintiff’s solicitors refer to the fact that an essential basis of the dismissal of the appeal were a number of concessions made by Counsel for the defendant on her stand as regard the plaintiff’s claim for lost income.  My view is that that, together with the fact that the Answer to the Revised Statement of Damages amounted to a bare denial, and did not enable either the Court or the plaintiff determined precisely when the defendant joined issue with the plaintiff on the issue of damages, justifies the order made.

6.  The solicitors for the plaintiff are correct when they say that the accountants expert report which was sought to be admitted, but which was refused, stimulated the concession that were made.

7.  All the circumstances I am satisfied that the appropriate order for costs is that costs on the appeal be the defendant’s costs in the cause.