CHAN YIN NA v. CHIU PAK WANG LEO

HCPI 804 & 805/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 804 OF 2003

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BETWEEN

CHAN YIN NA Plaintiff

and

UNION MEDICAL CENTRE LIMITED 1st Defendant

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AND

PERSONAL INJURIES ACTION NO. 805 OF 2003

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BETWEEN

CHAN YIN NA Plaintiff

and

CHIU PAK WANG LEO 2nd Defendant
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(Consolidated pursuant to the Order of
the Honourable Mr Justice Suffiad on 24 January 2005)

Before : Hon Bharwaney J in Chambers (Open toPublic)

Date of Exchange of Written Submissions on Costs : 2 September 2011

Date of Exchange of Written Submissions in Reply : 16 September 2011

Date of Ruling on Costs : 14 October 2011

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RULING ON COSTS

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1. At the conclusion of my decision on the plaintiff’s review of taxation before me, I directed the parties to exchange short andconcise written submissions on the costs of the review proceedings and to exchange written submissions in reply. This has been done.The submissions I have received are excessively and unnecessarily lengthy. They cannot be described as short and concise submissions.

2. Quite apart from dealing with the costs of the review of taxation before me, the plaintiff had made submissions on the defendants’summons dated 1 February 2010, returnable before Master J. Wong, to vary the costs order of Master J. Wong. That summons was adjournedsine die and has not been restored by the defendants. Even if that summons were to be restored, it should be dealt with by Master J. Wong. I decline to make any orders on that summons which is not, and cannot properly be, before me.

3. I have considered the submissions of the parties in relation to the costs of the review of taxation before me.

4. The plaintiff applied for a review of taxation pursuant to the provisions of O. 62, r. 35 of the Rules of the High Court (RHC). R. 35(1) provides that any party who is dissatisfied with the decision of a taxing master to allow or disallow any item in wholeor in part on review under r. 34, or with the amount allowed in respect of any item by a taxing master on any such review, may applyto a judge for an order to review the taxation as to that item or part of an item. The plaintiff applied for a review in respectof 7 specific and distinct items. The plaintiff also made submissions on my jurisdiction on the review and submitted that I oughtto consider the matter de novo, unfettered by the manner in which the taxing master exercised his discretion. I did not accede to that submission and I also dismissedthe plaintiff’s application for review in respect of 6 out of the 7 items of the taxation that were the subject of the review application. The plaintiff succeeded only to the extent that I allowed senior and junior counsels’ fees for a site visit.

5. I am informed by the defendants’ solicitors that the additional sum, which I allowed in the sum of HK$37,500, was just 2% of thetotal sum of HK$1,814,000 that was the subject matter of the 7 items of review. Although the amount involved is a relevant considerationfor the exercise of the court’s discretion on costs, more important considerations are the importance of the specific issue, andthe time spent dealing with it. The plaintiff was successful on 1 item of taxation, but unsuccessful on the 6 other items of taxationraised on the review. The plaintiff was also unsuccessful on the issue of the jurisdiction of the judge hearing a review of taxationfrom a taxing master.

6. The power of the court to award costs is discretionary. That discretion has to be exercised judiciously, with the guidance of principle,and the primary principle that applies to the exercise of discretion is the principle that costs follow the event. That principle,of course, can be displaced in specific cases for specific reasons. I do not see any compelling reason why I should depart from thatprinciple in this case.

7. I conclude that the 1st and 2nd defendants were substantially successful in the proceedings before me. Taking a broad view, I assess the plaintiff to have beensuccessful to the extent of 10%, and unsuccessful to the extent of 90%, i.e. that the defendants were successful to the extent of90%. On that basis, I order the plaintiff to pay 80% of the 1st and 2nd defendants’ costs of the proceedings before me, including the costs incurred in the preparation of the written submissions on costsand written submissions in reply.

8. I was concerned that the costs order I was minded to make would reduce the settlement sum that the plaintiff would receive. Myconcern was allayed when I received the submission of Ms Ada Wong Yiu Ming, for the Director of Legal Aid, that the combined effectof regulations 10 to 15 and, in particular, regulation 15(b) and (c) of the Legal Aid (Scale of Fees) Regulations, Cap. 91, is to place the burden for costs on the Director of Legal Aid for the reviews of taxation which he has authorised underregulations 11 and 12, and that the aided person would not be adversely affected by any costs orders made on the review of taxation. Ms Wong has confirmedto me that, as the Director of Legal Aid has authorised the 2 reviews, before Master J. Wong and before me, under regulation 12, any costs arising out of and incidental to the reviews will be paid out of the Legal Aid Fund.

(Mohan Bharwaney)
Judge of the Court of First Instance
High Court

Mr Raymond Leung, instructed by Messrs Ching & Co., for the Plaintiff

Dr David Kan of Messrs Reed Smith Richards Butler, for the 1st Defendant

Ms Catherine P.K. Yeung of Messrs Mayer Brown JSM, for the 2nd Defendant

Ms Juliana Chan, APLAC of the Legal Aid Department