HKCFI 1053
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 1046 OF 2014
||DONOWHO SIMON CHRISTOPHER
||NG MAN FUNG, WALTER
||Hon K Yeung J in Court
|Date of Written Submissions by the Plaintiff:
||6 May 2020
|Date of Written Submissions by the 1st Defendant:
||14 May 2020
|Date of Written Submissions by the 2nd Defendant:
||13 May 2020
|Dates of Reply Submissions by the Plaintiff,
the 1st and 2nd Defendants:
|21 and 28 May 2020
|Date of Decision on Costs:
||4 June 2020
DECISION ON COSTS
Dismissal of P’s claim and the costs order nisi
1. On 16 April 2020 (the “Date of the Judgment”), I handed down my Judgment (the “Judgment”) dismissing P’s claim against both D1 and D2. I make a costs order nisi (the “Order Nisi”) that D1 and D2 shall have the costs of the action (but excluding at this stage the costs of and relating to D1’s Counterclaim, which costs I reserve, as the Counterclaim has been stayed), including the costs I reserved on 11 July 2019. The costs are to be taxed if not agreed. I also gave certain directions on any application for variation which parties may make.
Offer to settle, and the Sanctioned Payment
2. A number of matters have now been revealed to me:
(a) Offer to settle on 28 March 2018:
(i) on 28 March 2018, Ds through D1’s solicitors (Messrs Tanner De Witt, (“TDW”) issued a letter to P’s legal advisers (the “29-3-2018 WP Letter”). The letter was issued on a without prejudice basis save as to costs;
(ii) therein, Ds said inter alia that P had failed to establish that he fell on the night of 9/10 January 2014. But to avoid the expense and waste of management time that protracted litigation would entail, Ds offered to pay the amount of HK$600,000 in full and final settlement of both the High Court Action and the LT Proceedings;
(b) the Sanctioned Payment:
(i) Ds on 19 September 2019 made a sanctioned payment in the sum of HK$1,500,000 (the “Sanctioned Payment”) in settlement of P’s Claim and D1’s Counterclaim;
(ii) The Notice of Sanctioned Payment was accompanied by another without prejudice letter (save as to costs) issued by TDW. Ds referred therein to the 29-3-2018 WP Letter and repeated inter alia that P had not produced any evidence other than self-serving statements showing that that he had indeed fallen on the night of the incident. Ds said again that the Sanctioned Payment was made to save time and costs;
(iii) The last date for acceptance without leave was 17 October 2019 (the “Cut-off Date”);
(iv) P did not accept the Sanctioned Payment.
3. All parties have applied to vary the Order Nisi. I have directed that the applications be dealt with on paper, and have further given directions on the filing of submissions.
4. P’s application (“P’s Summons”) was for an order that:
(a) the costs of and occasioned by the late discovery of Noise Log Set C, including all costs thrown away as a result of the adjournment of the trial on 30 October 2019, be paid by D1 to P (§1); and
(b) the costs of and occasioned by the filing of D2’s witness statement (“D2/WS”) be paid by D2 to P (§2).
5. D1 by summons (“D1’s Summons”) seeks an order:
(a) either that:
(i) P shall pay on an indemnity basis all of D1’s costs (except those of the Counterclaim, but including the costs reserved on 11 July 2019), with certificate for counsel (as a matter of caution), to be taxed if not agreed (§1.(A)i.);
(ii) P shall pay interest on the following costs at the enhanced interest of 10% above the judgment rate:
(1) all of D1’s costs incurred up to and including the Cut-off Date, from the Date of the Judgment until payment (§1.(A)ii.);
(2) D1’s costs incurred post Cut-off Date, from 18 October 2019 until payment (§1.(A)iii.);
(b) or that:
(i) P shall pay on a party and party basis all of D1’s costs incurred up to and including the Cut-off Date (except those of the Counterclaim, but including the costs reserved on 11 July 2019), with certificate for counsel (as a matter of caution), to be taxed if not agreed (§1.(B)i.);
(ii) P shall pay on an indemnity basis D1’s costs incurred post Cut-off Date, to be taxed if not agreed (§1.(B)ii.);
(iii) P shall pay interest on those costs (ii above) from 18 October 2019 until payment at the enhanced interest of 10% above the judgment rate (§1.(B)iii.);
(c) and payment out of the Sanctioned Payment (§2.).
6. D2 first took out a summons for variation on 29 April 2020 for certain variations. He on 4 May 2020 took out another summons to amend that first summons. I grant the application to amend. No prejudice to P arises therefrom. I make no order as to costs in that regard, as I see no costs consequence from that application to amend.
7. By the amended summons (“D2’s Amended Summons”), D2 seeks an order similar to that being sought by D1.
8. In respect of the applications by D1 and D2:
(a) Given his non-acceptance of the Sanctioned Payment and my dismissal of his claim, P agrees:
(i) to pay Ds’ post Cut-off Date costs on an indemnity basis, to be taxed if not agreed;
(ii) to pay interest at an enhanced rate on the costs incurred post Cut-off Date;
(b) P resists the other aspects of Ds’ applications;
(c) The issues between the parties are therefore:
(i) whether P should pay Ds’ costs incurred up to and including the Cut-off Date on an indemnity basis (or just on the usual party and party basis);
(ii) whether P should pay enhanced interest on Ds’ costs incurred up to and including the Cut-off Date, and if so, from when and at what rate;
(iii) what is the enhanced interest rate on the costs incurred post Cut-off Date between the Cut-off Date and the Date of the Judgment;
(iv) what is the enhanced interest rate from the Date of Judgment until payment; and
(v) costs of these applications for variation.
9. In relation to Noise Log Set C:
(a) Noise Log Set C is in my view clearly relevant. D1 ought to have disclosed it at the discovery stage together with the other 2 sets;
(b) D1 does not dispute the fact that as a result of the late disclosure of Noise Log Set C in the course of the trial, a short adjournment was occasioned. It is submitted on his behalf that the duration of the trial has not however been affected thereby, and P has not suffered any prejudice;
(c) In my view, P’s legal advisers were justified in seeking time to consider the newly disclosed documents. Whether there has been any costs consequence as a result of the adjournment of the hearing is not for me to speculate at this stage;
(d) I have considered In re Elgindata Ltd (No.2)  1 WLR 1207 and Hung Fung Enterprises Holdings Ltd & Anor v Agricultural Bank of China  3 HKLRD 679 cited to me. I am of the view that it was the failure on the part of D1 to disclose Noise Log Set C according to the Rules which led to the adjournment. Despite his success in defending P’s claim, I grant §1 of P’s Summons.
10. In relation to D2’s witness statement:
(a) On the 9th day of the trial when D2 was scheduled to give evidence, Mr Fong informed the Court and parties that D2 was not going to testify;
(b) Ms Chao submits that “D2’s action in filing and serving D2’s W/S in 2015 and then suddenly abandoning it 4 years later in the middle of the trial wasted a considerable amount of time and effort”. Details of certain suggested wasted time and efforts are provided;
(c) I agree with Mr Fong’s submissions that D2...