Amoi Electronics Co Ltd v Kin Cheung Transportation (Hong Kong) Co Ltd (unrep., DCCJ 3993/2008, [2010] HKEC 235)

March 3, 2010 in Case Law, News & Analysis | Tags: | by colepoon | Leave a comment

The plaintiff made a sanctioned offer pursuant to O.22 r.2 of the Rules of District Court (Cap. 336H – Sub. Leg.) to the defendant. The offer was not accepted by the defendant. 

The plaintiff subsequently obtained a summary judgment against the defendant in the sum exceeding the sanctioned offer, and asked for interest on the judgment sum at 10% above the judgment rate and costs on an indemnity basis. 

Deputy Judge Chan held that the defendant “had to take the consequences of having been beaten by a sanctioned offer which it had declined to accept”, and that the type of order requested by the plaintiff “had to be made unless the court considered it unjust to do so“. In his exercise of discretion, Deputy Judge Chan ordered interest on the damages at judgment rate plus 2%, and costs to be paid by the defendant on an indemnity basis with interest on such costs at 2% above judgment rate.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 23 CJRA.

Chok Yick Interior Design & Engineering Co Ltd v Fortune World Enterprises Ltd (unrep., HCA 2394/2008 & 280/2009, [2010] HKEC 146)

March 3, 2010 in Case Law, News & Analysis | Tags: | by colepoon | Leave a comment

A contract entered into between the plaintiff and the defendant contained a usual clause for submission of disputes to arbitration. 

Despite the existence of the arbitration agreement, the plaintiff commenced legal proceedings against the defendant. A statement of claim was filed. The defendant did not apply to stay the proceedings in favour of arbitration, but instead, filed a defence and counterclaim. The plaintiff also filed a reply and defence to the counterclaim.

Following the close of pleadings, the plaintiff applied to the court to stay the proceedings, and the Honourable Mr. Justice Saunder held that it had power to grant a stay in favour of arbitration in the present case, by reasons of its inherent jurisdiction and its general case management powers under O.1A and O.1B.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 23 CJRA.

World Chinese Business Investment Foundation Ltd v Shine Rainbow Marketing Ltd (unrep., HCA 2547/2007, [2010] HKEC 223)

March 3, 2010 in Case Law, News & Analysis | Tags: | by colepoon | Leave a comment

The plaintiffs failed to attend a case management conference (“CMC“), and as a result, the action was provisionally struck out by a Master.

In the present application, the plaintiffs applied to restore their claim pursuant to O.25 r.1C of the Rules of High Court (Cap. 4A – Sub. Leg.). In determining the application, Madam Registrar Au-Yeung considered the following three questions:

(i) whether the plaintiffs meet the threshold of showing “good reasons“;

(ii) whether the court, as a matter of its discretion, shall grant a restoration of the action; and

(iii) if the court decides to restore the action, what conditions should be imposed.

Madam Registrar Au-Yeung observed that the reasons put forward by the plaintiffs’ solicitors were inconsistent. Moreover, she noted that the plaintiffs did not file any evidence to show merits of their claims. However, given that this was the first application of its kind before her and the practitioners may not be familiar with r.1C, Madam Registrar Au-Yeung exercised her discretion to restore the action with no conditions imposed.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 23 CJRA.

Hui Yin Sang v Tsoi Ping Kwan (unrep., HCA 392/2008, [2010] HKEC 125)

February 23, 2010 in Case Law, News & Analysis | Tags: | by colepoon | Leave a comment

The plaintiffs applied for leave to amend their writ and statement of claim to incorporate additional pleas on various fraudulent representations and trust claims against the defendants. The defendants opposed these amendments on the grounds that the fraudulent representation amendments lacked the necessary particulars or were not supported by evidence, and the other amendments were useless or were bound to fail and should not be allowed.

The court disallowed the fraudulent representation amendments because there was no reasonably credible evidence to establish a prima facie case of fraud.

As for the trust claims sought to be incorporated in the statement of claim, the court ruled that these amendments were useless or bound to fail, and were inconsistent with the plaintiffs’ other derivative claims.

The new O.18 r.12A, added under the Civil Justice Reform, effectively prevents a party from pleading inconsistent cases in relation to a matter which is plainly within his knowledge, so that there can be no justification for him to put forward inconsistent factual alternatives.

The court held that the proposed amendments made in respect of the inconsistent personal trust claims fell foul of O.18 r. 12A for the following reasons:

(a)  They were pleaded as a unified claim, but not as an alternative in the pleading; and
(b)  The plaintiffs had not provided reasonable grounds for advancing their inconsistent personal trust claims and the derivative claims, when the relevant facts must be within their personal knowledge.

Accordingly, the plaintiffs’ proposed amendments in this regard were embarrassing and were disallowed.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 22 CJRA.

Big Boss Investment Ltd v So Lai Kei (unrep., HCA 2184/2009, [2010] HKEC 144)

February 23, 2010 in Case Law, News & Analysis | Tags: , | by colepoon | Leave a comment

In the present case, the parties disposed of an injunction application with “costs to be paid by the Plaintiff to the Defendant on a party and party basis to be taxed if not agreed“. The defendant commenced taxation proceedings but the plaintiff applied for a stay on the ground that O.62 r.9D only permits the defendant to do so after the action is completed.

Before the Civil Justice Reform came into force, the position was that unless a costs order included the words “in any event“, it would be taken to mean “taxation and payment forthwith“. Such an interpretation was considered unsatisfactory as there was an apparent inconsistency between O.62 r.4(1) and O.14 r.7(1) which vest the court with the discretion to determine the incidence of costs and to require those costs to be paid and taxed forthwith, on the one hand, and O.62 r.11(1) which entitles a party to proceed to tax his costs without an order directing the taxation of those costs, on the other hand.

While the above rules are retained, r.9D has been added to O.62 since the implementation of the Civil Justice Reform on 2 April 2009. It was held that the effect of r.9D is to reverse the previous unsatisfactory position. Rules 9D (1) and (2) allows taxation after conclusion of an action unless the costs order specifies taxation to be “forthwith” or at some designated time. The adding of the words “to be taxed” without “forthwith” does not entail immediate taxation. By this construction, O.62 r.4(1) and O.14 r.7(1) will give the court discretion to determine the incidence of costs, as well as discretion to specify taxation forthwith but in the absence of its exercise, the taxation will be done at the end of the action.

Accordingly, as the costs order in the present case did not specify taxation to be “forthwith“, the taxation proceedings were stayed until the action had been completed.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 22 CJRA.

The Standard: Interview with Hong Kong Mediation Handbook Author Raymond Leung

February 5, 2010 in News & Analysis | Tags: , , , , , , , , | by Westlaw HK | Leave a comment

On Tuesday January 26th Ivy Ong-Wood from Hong Kong’s The Standard, interviewed Dr Raymond Leung, General Editor of the Hong Kong Mediation Handbook.

The Standard - Raymond Leung Interview

The Standard - Raymond Leung Interview

The following link opens a copy of the article (A good compromise)

The Standard: Interview with Raymond Leung

For more information on the Hong Kong Mediation Handbook, please visit the Sweet & Maxwell website at www.sweetandmaxwell.com.hk

Lu Guo Xiang v Hong Kong Ming Wah Shipping Co Ltd (unrep., HCMP 52 & 53/ 2010, [2010] HKEC 99)

February 5, 2010 in Case Law, News & Analysis | Tags: , | by colepoon | Leave a comment

This is an application by the plaintiff for leave to appeal against an order made by the Honourable Mr. Justice Yam on 12 January 2010, in which the Honourable Mr. Justice Yam brought forward a quantum hearing originally fixed on 15 September 2010 to 18 January 2010.

In the present case, the plaintiff commenced proceedings against the defendant and claimed damages for personal injuries. Parties agreed that there would be a split trial of liability and quantum. The trial on liability took place in December 2008 before the Honourable Mr. Justice Yam, and the judgment was handed down on 9 January 2009.

Following various adjournments, the assessment of damages was fixed on 15 September 2010. On 12 January 2010, however, the Honourable Mr. Justice ordered that the quantum hearing be brought forward to 18 January 2010.

The defendant appealed against the order of the Honourable Mr. Justice Yam. The Court of Appeal set aside the order, and said that while Civil Justice Reform was designed to improve the administration of justice, the court “must also act with due consideration for the parties and their legal representatives” and “given the difficulties which Ms Lau has indicated, the short notice in this case is not acceptable”.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 21 CJRA.

George Y C Mok & Co v Trade Advisers Co Ltd (unrep., HCMP 2589/2009, [2010] HKEC 3)

February 5, 2010 in Case Law, News & Analysis | Tags: , | by colepoon | Leave a comment

This is an application for leave to appeal against the judgment of the Honour Judge Lok dated 21 August 2009. This case involved a bitter litigation between a firm of solicitors and its former client.

The plaintiff commenced an action against the defendant in October 2001 for unpaid legal fees. The trial took place in March 2009. It lasted for five days, and was attended by two Senior Counsels. On 21 August 2009, the Honour Judge Lok handed down his judgment. He granted judgment for the plaintiff for the outstanding legal fee in the amount of HK$71,449.95, together with costs. 

In his judgment, the Honour Judge Lok commented that “it is regrettable that the parties have not had the good sense of trying to resolve their dispute by a more cost-effective means. The costs of this case over 9 years far outweigh the amount at stake, and yet the parties have chosen the most expensive way to resolve their dispute“.

The case, however, was not put to rest by the judgment of the Honour Judge Lok. The defendant applied to the Court of Appeal for leave to appeal. Such an application was dismissed by the Honourable Mr. Justice Rogers VP. The Honourable Mr. Justice Rogers VP commented that “this is clearly the sort of litigation which the Civil Justice Reform was designed to prevent“.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 21 CJRA.

Dolphin Advertising Ltd v Tronken Enterprises Ltd (unrep., HCA 2409/2006, [2009] HKEC 2109)

January 18, 2010 in Case Law, News & Analysis | Tags: | by colepoon | Leave a comment

In this case, following on from a judgment and a costs order nisi in favour of the defendant, the defendant made an application for a wasted costs order under ss 52A(4) to (7) of the High Court Ordinance (Cap.4), being provisions incorporated as part of the Civil Justice Reform.

The provisions confer on the court the power to make a wasted costs order on the whole or any part of any costs incurred by a party as a result of an improper or unreasonable act or omission; or any undue delay or other misconduct or default, on the part of any legal representative conducting litigation on behalf of a party. Sub-section 52A(5) expressly provides that the court shall, in addition to all other relevant circumstances, take into account the interest that there be fearless advocacy under the adversarial system of justice.

A two-stage process is involved in such an application. At the first stage the applicant has to satisfy the court that it has evidence before it which, if unanswered, would be likely to lead to a wasted costs order being made; and that the wasted costs order proceedings are justified notwithstanding the likely costs involved. It was alleged that the plaintiff’s solicitors were at fault in continuing to prosecute the action once it should have been obvious to them that it was bound to fail.

While accepting that there was a prima facie case that the solicitors were negligent or incompetent in the conduct of the proceedings, the Honourable Mr Justice Harris held that it was not a sufficient ground to make a wasted costs order, absent something that went beyond the presentation of a hopeless case and involved lending assistance to an abuse of process or improper time wasting.

Contrary to the English counterpart provision, the definition of “wasted costs” in the Hong Kong provisions does not include costs incurred by a party as a result of any negligent act on the part of the legal representative. It was held that the omission of negligence from the Hong Kong provisions was not inadvertent, and that conduct which could generally be described as unreasonable did not automatically engage the wasted costs section. It was also ruled that advancing a hopeless case did not justify the imposition of a wasted costs order. The assessment of what amounts to unreasonable conduct in the context of wasted costs orders requires a consideration of how the courts have characterised such behaviour in the past.

In dismissing the defendant’s application, the Honourable Mr Justice Harris concluded that:

“An error of judgment by solicitors or failure to apply any judgment at all to a case for which they are responsible, which renders a weak case hopeless is in my view not the type of conduct, which section 52A address.”

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 20 CJRA.

Wong Siu Tong v So Man Che (unrep., HCPI 506/2009, [2009] HKEC 2086)

January 18, 2010 in Case Law, News & Analysis | Tags: , , | by colepoon | Leave a comment

This case illustrates how the Judiciary will be more prepared to bear in mind the underlying objectives of the Civil Justice Reform, one of which being that costs should not be incurred unless they are necessary, when granting leave for parties to adduce expert evidence.

This matter related to a claim by the plaintiff for damages for personal injuries suffered in a traffic accident. Judgment on liability was entered and the only remaining issue was the quantum of damages. The plaintiff sought leave to adduce expert evidence of a rehabilitation consultant to show that home care services, as opposed to nursing home care, was reasonable so that damages would be sought along that line.

Master Roy Yu granted leave to the plaintiff to have a rehabilitation expert to comment on the resources required for home care services, and highlighted the importance of the parties identifying precisely the issues to which the expert evidence will relate.

Practice Direction 5.2 on case management requires the party adducing expert evidence to, inter alia, identify the issue to which the expert evidence will relate. Such an approach allows the expert to focus on the issues, and hence reduce the time incurred in preparing reports, which is in line with the spirit of the Civil Justice Reform that costs should not be incurred unless they are necessary. Whilst Master Yu acknowledged that the said Practice Direction is not applicable to personal injury cases, he emphasised that the rationale behind it should be borrowed in personal injury cases, especially for non-medical reports.

CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.

This article is available in [2009] 20 CJRA.

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