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Ho Kwok Kei v A.s. Watson & Co, Ltd And Others

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date30 December 2019
Neutral Citation[2019] HKCFI 3163
Judgement NumberHCPI325/2016
Citation[2020] 1 HKLRD 568
Year2019
Subject MatterPersonal Injuries Action
CourtCourt of First Instance (Hong Kong)
HCPI325A/2016 HO KWOK KEI v. A.S. WATSON & CO, LTD AND OTHERS

HCPI 325/2016

[2019] HKCFI 3163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 325 OF 2016

____________

BETWEEN
HO KWOK KEI Plaintiff

and
A.S. WATSON & COMPANY, LIMITED 1st Defendant
A.S. WATSON GROUP (HK) LIMITED 2nd Defendant
(Discontinued)
CHUNG HING TRANSPORTATION LIMITED 3rd Defendant

____________

Before: Hon G Lam J in Chambers

Dates of Written Submissions: 22 November and 13 December 2019

Date of Decision on Costs: 30 December 2019

______________________________

D E C I S I O N O N C O S T S

______________________________

1. Under the costs order nisi made in my judgment[1] after trial at §118, the plaintiff has to pay, inter alia, the 1st defendant’s costs of the action. The 1st defendant now applies to vary the order to one that requires the plaintiff to pay the 1st defendant’s costs of the action on the indemnity basis together with interest on such costs at 10% above the judgment rate.

2. The 1st defendant primarily relies on three matters in support of the application.

3. First, the 1st defendant wrote to the plaintiff on 19 October 2016 and again on 2 June 2017, on a “without prejudice save as to costs” basis, urging the plaintiff to discontinue the claim against the 1st defendant with no order as to costs. Had the plaintiff taken up that offer, his position would have been better than the actual outcome in that he would not have had to pay the 1st defendant’s costs.

4. As the 1st defendant acknowledges, these letters did not contain a “sanctioned offer” within the meaning of Order 22 of the Rules of the High Court (Cap 4A): see Wong Yim Man Anthea v Wong Ho Ming Felix [2016] 3 HKLRD 249 at §18; Heung Wing Yan v Hangway Housing Management Ltd & Others (unrep, HCPI 347/2012, 14 February 2017), §14. It follows, by virtue of Order 22 rule 3(1), that the offer does not have the consequences specified in Order 22 such as the provision in rule 23(4) that where a plaintiff fails to obtain a judgment that is more advantageous than a defendant’s sanctioned offer,the court may order the plaintiff to pay (a) the defendant’s costs on the indemnity basis; and (b) interest on costs at a rate not exceeding 10% above judgment rate. The 1st defendant is essentially saying that the same consequences should obtain notwithstanding that it did not make a sanctioned offer.

5. The 1st defendant contends that it could not have made a sanctioned offer without risking it being accepted by the plaintiff resulting in the 1st defendant having to pay costs under Order 22 rule 20, unless it could persuade the Court to order otherwise under rule 20(1). The 1st defendant says that even if it gave an Etratech notice at the time of the offer (ie a warning to the plaintiff that the 1st defendant would apply to invoke the...

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