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Momin Lok v Hospital Authority

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date13 September 2021
Neutral Citation[2021] HKCA 1319
Year2021
Judgement NumberCACV236/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV236A/2020 MOMIN LOK v. HOSPITAL AUTHORITY

CACV 236/2020

[2021] HKCA 1319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2020

(ON APPEAL FROM HCPI NO 981 OF 2014)

________________________

BETWEEN

MOMIN LOK Plaintiff
and
HOSPITAL AUTHORITY Defendant

________________________

Before: Hon Barma, Au and G Lam JJA in Chambers

Dates of Written Submissions: 9, 16 and 25 August 2021

Date of Judgment on Costs: 13 September 2021

________________________

JUDGMENT ON COSTS

________________________


Hon G Lam JA (giving the Judgment on Costs of the Court):

1. By our Judgment handed down on 26 July 2021: [2021] HKCA 1075, we set aside the judge’s judgment on preliminary issue whereby it was adjudged that the writ was issued within 3 years from the date of the plaintiff’s knowledge as provided under section 27(4) of the Limitation Ordinance (Cap 347). We held instead that the writ was issued more than 3 years from the date of such knowledge, but in exercise of the discretionary power under section 30 of the Ordinance we made an order that the provisions of section 27 shall not apply to the action.

2. This is our judgment on costs based on the written submissions since received from the parties.

3. In the court below, the judge ordered the defendant to pay the plaintiff the costs of the trial of the preliminary issue (except part of the costs of the hearing on 18 May 2018 which was to be paid by the plaintiff to the defendant) and ordered the plaintiff to pay the defendant the costs of certain interlocutory matters, for the reasons given in his decision on costs dated 31 July 2020: [2020] HKCFI 1840.

4. The plaintiff’s position is that the judge’s costs order should stand, and that the costs of the appeal should be awarded to the plaintiff. It is submitted that to achieve the goal of defeating the plaintiff’s action, the defendant needed to succeed on both the date of knowledge issue and the discretion issue, and that this Court’s Judgment represents a complete failure for the defendant. Reliance is placed on Estate of Mohammed Mossa v Wise [2017] 5 Costs LR 927, where based on a similar outcome Yip J of the English High Court affirmed the Master’s decision to award the claimant all the costs as the overall winner, taking the view that the date of knowledge issue could not be described as “truly discrete”. The plaintiff submits that the evidence on the acquisition of knowledge was also relevant to understanding the reasons for the delay in bringing the claim, and that the two issues are inter-connected which renders the case inappropriate for an issue-based costs order. Had the defendant appreciated that it would be eminently open to the court to exercise its discretion under section 30, it could have conceded the discretion issue and no preliminary contest on limitation would have been necessary.

5. The defendant, in contrast, submits that the court should pursuant to Order 62 rule 5(1)(f) of the Rules of the High Court (Cap 4A) take into account the fact that the plaintiff has lost on the date of knowledge issue, and make an issue-based order as to costs. The plaintiff ran the date of knowledge point as her primary case on limitation, with the discretionary ground as a fall-back. Had she run only the discretion point, the legal argument on the authorities as to knowledge which caused a significant increase in the length and costs of the proceedings would have been unnecessary. This is not a case in which the defendant could reasonably concede the discretion point given, inter alia, that the plaintiff had brought a claim in the District Court against the defendant in July 2011 and discontinued it in July 2013 and also had an extant action against her former solicitors in respect of their conduct of that action.

6. The defendant accepts that much of the oral evidence at the hearing below as to the facts of the plaintiff’s delay was also relevant to the date of her knowledge, but submits that her date of knowledge raised a distinct legal issue which took up most of the time and written work of counsel and the courts. It is submitted that the fair order would be for the defendant to pay one-third of the plaintiff’s costs on appeal and below and for the plaintiff to pay two-thirds of the defendant’s costs, with an order for set-off or a proportional...

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