Case Detail

DCEC 724/2020

[2022] HKDC 650

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 724 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

	ANTONIA LOUISE ZOYA ANTON	Applicant
	and
	CATHAY PACIFIC AIRWAYS LIMITED	Respondent

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Before: His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions: 24 May, 14 June & 17 June 2022

Date of Decision: 30 June 2022

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DECISION

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THE APPLICATION

1. By summons filed on 24 November 2021 (“the Replacement Summons”), the respondent applied for leave to withdraw the Affidavit of Albert Ki-Yan Yeung (“Mr Yeung”) filed on 3 September 2021 and replace it with the 1^st Affidavit of Kwong, Tannie Tsz Pang (“Mr Kwong”) filed on 24 November 2021, in support of its summons for specific discovery against the applicant filed on 3 September 2021 (“the Discovery Summons”)

2. By a Decision which was handed down on 11 May 2022, this Court:

(1)  expunged Mr Yeung’s “affidavit” which was not sworn at all;
(2)  granted retrospective leave for the respondent to file and serve Mr Kwong’s 1^st Affidavit in support of the Discovery Summons;
(3)  made a costs order nisi that there be no order as to the costs of the Replacement Summons (“the Costs Order Nisi”).

3. When this Court made the Costs Order Nisi, the following brief explanation was made:

“23. The whole application stemmed from the respondent having put forward Mr Yeung as a deponent, who did not even sign his Affidavit.
24. On the other hand, with greatest respect, the applicant was trying to seek the dismissal of the Discovery Summons by a knock-out blow. However, the arguments advanced were totally unmeritorious. If the matter had been handled in a more reasonable way, the Discovery Summons would not have been stalled for half a year.
25. Having taken the above matters into account, I make a costs order nisi that there be no order as to the costs of the application.”

4. Pursuant to paragraph 26 of the Decision, the respondent applied to vary the Costs Order Nisi and asked for an order that:

(1) The applicant do pay costs of and occasioned by the Replacement Summons on party and party basis, to be taxed if not agreed, with certificate for counsel (including the costs of the hearing on 26 November 2021);
(2) Alternatively, the applicant do pay costs of and occasioned by the Replacement Summons from 6 December 2021 onwards, or from such other date as the Court deems proper, on party and party basis, to be taxed if not agreed, with certificate for counsel.

THE LEGAL PRINCIPLES

5. It is trite that the Court has a wide discretion on costs.

6. Order 62 rule 3(2A) of the Rules of the District Court (Cap.336H) (“the RDC”) provides that:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any interlocutory proceedings, it may, subject to this Order, order the costs to follow the event or make such other order as it sees fit.”

7. In Melvin Waxwan v Li Fei Yu (HCA 1972/2012, unreported, 11 September 2013), To J had the following to say:

“Summing up on the post-CJR position, I think the court has much wider discretion as to costs in interlocutory proceedings. Unlike other proceedings, the general rule of costs following the events do not apply. The court is entitled to take into account all the circumstances of the case, including those set out in rule 5, to make such order as it thinks fit. In the exercise of its discretion, the court may take the issue-based approach or may take into account merit of the parties’ case or the possible outcome of the action. The circumstances of interlocutory proceedings are so numerous that it is impossible to make any general rule. Costs to follow the event and costs be to the successful party’s costs in the cause are obvious options.”

8. Order 62 rule 5(1) of the RDC sets out a number of special matters which the Court may take into account in exercising its wide discretion. They include, among other things:

(1)  the underlying objectives set out in Order 1A, rule 1 of the RDC;
(2)  any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22 of the RDC;
(3)  the conduct of all the parties;
(4)  whether a party has succeeded on part of his case, even if he has not been wholly successful;
(5)  any admissible offer to settle made by a party, which is drawn to the Court’s attention.

9. In respect of “conduct of the parties”, Order 62 rule 5(2) of the RDC stipulates that it includes:

(1)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(2)  the manner in which a party has pursued or defended his case or a particular allegation or issue;
(3)  whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and
(4)  conduct before, as well as during, the proceedings.

DISCUSSION

10. The respondent’s primary position is that the applicant should be ordered to bear the costs of the Replacement Summons because, it was said, this summons could and should have been avoided had the applicant acted reasonably.

11. As I pointed out in the Decision, the Replacement Summons stemmed from the respondent having put forward Mr Yeung as a deponent, who did not even sign his Affidavit. Hence, the respondent would have to ask for the Court’s indulgence anyway in putting in another affidavit in support of the Discovery Summons.

12. In these circumstances, I do not consider it right to order the applicant to bear the entirety of the respondent’s costs of the Replacement Summons as suggested.

13. However, for the purpose of this variation of Costs Order Nisi application, this Court’s attention had been drawn to the following Calderbank offer which was made by the respondent on 6 December 2021. It reads:

“Providing your client agrees to paragraph 1 of [the Replacement Summons] and/or for retrospective leave for our client to file and serve the Affidavit of Kwong, Tannie Tsz Pang dated 24 November 2021, our client will pay your client’s costs of [the Replacement Summons] as follows:
Costs of this application up to and including the hearing on 26 November 2021 herein be to the Applicant in any event, to be taxed if not agreed and there be no order as to costs after the hearing on 26 November 2021.”

14. The applicant did not make any reply to the said offer.

15. By reference to the Decision, the applicant has apparently failed to do better than the offer contained in the said Calderbank letter. In other words, costs could have been saved should the applicant have accepted the said offer.

16. In these circumstances, there is no reason why the applicant should not bear the costs consequence for her refusal to accept the said offer. Indeed, in his written submissions, the applicant’s solicitor had failed to address the said Calderbank offer altogether.

17. I therefore order that the applicant do pay the respondent’s costs of and occasioned by the Replacement Summons from 6 December 2021 onwards, on party and party basis.

18. Although Mr Sakhrani initially suggested in his written submissions[1] that the respondent’s costs of the Replacement Summons should be taxed if not agreed, he at the end of his submissions clarified that the respondent would support a summary assessment of costs. The applicant also accepted that any costs granted herein should be summarily assessed. I agree that this is an appropriate approach. Further directions for summary assessment of the respondent’s costs of the Replacement Summons from 6 December 2021 onwards will be given below.

19. Without disrespect to Mr Sakhrani, I am of the view that the issues involved in the Replacement Summons are so straight-forward that it was not necessary for counsel to be engaged. Even though this Court appreciates that counsel had been instructed to act for the respondent from the outset of this action [2], I take the view that the Court should still take into account the complexity of the interlocutory application involved when deciding whether to grant certificate for counsel.

COSTS

20. The respondent has succeeded in varying the Costs Order Nisi. I therefore make a costs order nisi that the applicant shall bear the respondent’s costs of this application, which is going to be summarily assessed.

21. The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

22. Unless any application for variation of the aforesaid costs order nisi is made within time:

(1)  The respondent shall lodge and serve its Revised Statement of Costs[3] within 7 days after the expiry of the said 14-day period;
(2)  The applicant shall lodge and serve her Statement of Objection within 7 days thereafter.
(3)  Summary assessment of the respondent’s costs of the Replacement Summons from 6 December 2021 onwards and of the variation of Costs Order Nisi application pursuant to Order 62 rule 9A(1)(a) of the RDC will be conducted on paper (no matter whether any statement of objection is lodged by the applicant within time) thereafter.

23. The costs summarily assessed shall be payable by the applicant within 14 days after assessment.

( H. Au-Yeung )
District Judge

Munros for the applicant

Mr Ashok K. Sakhrani, instructed by Kennedys, for the respondent

[1] See the proposed term of variation referred to in paragraph 4 hereinabove

[2] This was so stated in Mr Sakhrani’s reply submissions

[3] To replace the Statement of Costs dated 21 June 2022

DCEC 724/2020

[2022] HKDC 424

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 724 OF 2020

--------------------------

IN THE MATTER OF AN APPLICATION BETWEEN
	ANTONIA LOUISE ZOYA ANTON	Applicant
	and
	CATHAY PACIFIC AIRWAYS LIMITED	Respondent

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Coram:

His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions:	3 & 30 March and 13 April 2022
Date of Decision:	11 May 2022

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DECISION

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THE APPLICATION

BACKGROUND

2. The background of this application is quite unusual.

3. This is an employee’s compensation case, in which the applicant, a pilot/First Officer employed by the respondent, claims that during the course of a flight which departed Hong Kong for Incheon, Korea on 20 May 2018 at 1am, she had inhaled a “strong chemical smell” similar to engine oil fumes which had caused various injuries including but not limited to her nose and chest, and that she was subsequently diagnosed to be suffering from Reactive Airway Dysfunction Syndrome.

4. On 3 September 2021, the respondent took out a summons for specific discovery against the applicant (“the Discovery Summons”), and filed an Affidavit of Mr Yeung in support. Mr Yeung is an associate of Messrs. Kennedys, solicitors for the respondent (“Kennedys”).

5. On 10 November 2021, the applicant’s solicitors (“Munros”) wrote to Kennedys, and in the letter the respondent was demanded to withdraw Mr Yeung’s Affidavit, on the grounds that:

(1)  Mr Yeung, as the respondent’s solicitor, should not have made an affidavit in support for the respondent;
(2)  Mr Yeung had expressed medical opinion regarding the applicant’s psychological condition but he did not have medical background;
(3)  Mr Yeung did not make reference to two medical reports in his Affidavit.

6. What Munros did not point out in the said letter was that Mr Yeung’s “Affidavit” was actually unsworn.

7. The call-over hearing of the Discovery Summons was fixed to be heard on 26 November 2021. In Munros’ skeleton argument dated 19 November 2021 lodged for this call-over hearing, it was submitted that the Discovery Summons should be dismissed forthwith, or alternatively, Mr Yeung’s purported Affidavit should be held inadmissible because:

(1)  The Discovery Summons was not supported by a sworn affidavit;
(2)  Mr Yeung was not an appropriate deponent;
(3)  Mr Yeung did not explain why an employee of the respondent, including in particular Mr Russell David Lamb[1], Associate General Counsel of the respondent, was not considered appropriate to make an affidavit in support of the Discovery Summons.

8. In the light of Munros’ objections, the respondent made the present application by way of the Replacement Summons.

DISCUSSIONS

Withdrawal of affidavit

9. The application to withdraw Mr Yeung’s “Affidavit” can be dealt with quickly. Leaving aside for the time being the appropriateness for Mr Yeung to make an affidavit for and on behalf of his lay client in support of the Discovery Summons, the undisputed fact is that the “Affidavit” filed was actually not sworn by Mr Yeung. Hence, the filed document is not a valid affidavit as such.

10. I therefore order that Mr Yeung’s purported Affidavit filed on 3 September 2021 shall be expunged from the court file.

Filing of Mr Kwong’s Affidavit

11. The main purpose of the Replacement Summons is to seek leave to file Mr Kwong’s 1^st Affidavit in support of the Discovery Summons.

12. The applicant objected against the respondent’s reliance of Mr Kwong’s 1^st Affidavit. Munros relied on the following part of the applicant’s Affidavit which they said had summarise[d] her reasons for opposing the admissibility of Mr Kwong’s Affidavit:

“4. My reasons for opposing the admissibility of 1^st Kwong, as stated, being that:
(a) Mr Kwong is an employed inhouse lawyer of the Respondent: he is not appropriate and lacks the requisite knowledge of the issues involved to make affidavit on behalf of the Respondent, on the basis of information and belief as asserted held by him, in support of the Respondent’s summons of 03.09.2021 when there are other employees of the Respondent who are known to be employed and are more appropriate;
(b) Mr Kwong seeks to rely on the partial contents of medical reports/records as redacted by the Respondent without provision of their full contents;
(c) fails to refer to the Court and address the stated contents of medical reports possessed by the Respondent, including a report prepared by Dr Henry Chan as employed by the Respondent in the capacity of Principal Medical Officer and which reports contradict the various assertions as made by Mr Kwong on the basis of information and belief;
(d) omits references to relevant facts, as known to the Respondent as admitted to by its employees in the documentation of the Respondent concerning the occurrence of the Accident as suffered by me on 19.05.2018, the subject of these proceedings.”

13. With greatest respect, these grounds must be rejected.

14. Firstly, the applicant’s continued reliance on the proposition that “solicitors should not swear affidavits as to factual matters on behalf of the parties”[2] and her argument that Mr Kwong is not an appropriate deponent are not understood:

(1) As mentioned above, it was Munros’ argument that Mr Yeung did not explain why Mr Russell David Lamb, Associate General Counsel of the respondent, did not make an affidavit in support of the Discovery Summons instead. It therefore seems that the applicant considered that Mr Lamb would be an appropriate deponent. According to Mr Kwong’s 3^rd Affidavit, he is the respondent’s Senior Legal Counsel working under Mr Lamb and is responsible for managing all matters arising from these proceedings on behalf of the respondent. If Mr Lamb is a suitable deponent, there is no reason why Mr Kwong is not;
(2) The position of an in-house counsel employed by a party to the proceedings is apparently different from a practising solicitor, working for a solicitors’ firm, who acts for a party. The rationale explained in cases such as Leung Kin Fook & Others v Eastern Worldwide Co Ltd [1991] 1 HKC 55 is inapplicable to in-house counsel.

15. Secondly, in relation to the complaint about redacted copies of medical reports/records, I only have to quote paragraph 9 of the applicant’s 2^nd Affidavit as follows:

“In 1^st Kwong Mr Kwong fails to verify that the various documents exhibited to his affidavit are true and complete copies. Within various pages to exhibit TK-1, including copies of medical reports and records as disclosed by me to the Respondent in these proceedings, there are made substantial redactions. […]”

16. The redacted documents are the applicant’s documents. If the applicant considers it necessary and if she thinks the redacted parts are relevant, there is nothing which prevents her from exhibiting the non-redacted version of those documents at all in her Affidavit in opposition to be filed.

17. Thirdly, by the same token, if the applicant considers that Mr Kwong had omitted to refer to any relevant facts or documents, it is up to her to state those facts and refer to those documents in her Affidavit to be filed in opposition.

18. Munros had put forward other arguments in their written submissions.

19. They submitted that, by making the replacement application, the respondent is trying to make it impossible for the applicant to seek leave to cross-examine Mr Yeung and/or Mr Kwong as to the contents of their respective affidavits. This argument has no merits:

(1) It is the applicant’s own argument that Mr Yeung’s evidence is inadmissible. I wonder what purpose the applicant could achieve in cross-examining Mr Yeung;
(2) If Mr Kwong’s 1^st Affidavit is admitted as evidence, it is up to the applicant to seek leave for cross-examining him. Putting aside the question of whether the court would grant leave for cross-examination at this stage of the proceedings for the purpose of a specific discovery application (as to which I do not express any view herein), I do not understand how it can be said that the present application has made it impossible for the applicant to do so.

20. Munros also suggested that the respondent’s attempt to replace Mr Yeung’s Affidavit was made out of time[3]. Although the Replacement Summons was indeed filed more than 2½ months after the filing of the Discovery Summons, the fact is that the call-over hearing of the Discovery Summons was only held on 26 November 2021, at which the respondent’s specific discovery application was adjourned sine die with liberty to restore. The intention of this court at that time was to wait until the result of this replacement of affidavit application is known before giving further directions on the disposal of the said specific discovery application – a course which was accepted by both parties. I cannot see how the applicant could be prejudiced in such circumstances even if retrospective leave is now granted for Mr Kwong’s 1^st Affidavit to be filed.

ORDER

21. I therefore grant retrospective leave for the respondent to file and serve Mr Kwong’s 1^st Affidavit on 24 November 2021 in support of the Discovery Summons.

22. To ensure that the case shall progress as quickly as possible, I also direct that:

(1)  The parties shall use their best endeavours to agree on the further directions to be sought for the disposal of the Discovery Summons;
(2)  In the event agreement can be reached on such directions, they shall file a consent summons no later than 20 May 2022;
(3)  If no agreement can be reached, they shall write to the court separately no later than 27 May 2022, and set out the directions required with reasons in support;
(4)  The court will then give further directions on paper.

COSTS

23. The whole application stemmed from the respondent having put forward Mr Yeung as a deponent, who did not even sign his Affidavit.

24. On the other hand, with greatest respect, the applicant was trying to seek the dismissal of the Discovery Summons by a knock-out blow. However, the arguments advanced were totally unmeritorious. If the matter had been handled in a more reasonable way, the Discovery Summons would not have been stalled for half a year.

25. Having taken the above matters into account, I make a costs order nisi that there be no order as to the costs of the application.

26. If any party wishes to vary the costs order nisi:

(1)  Such a party shall lodge and serve written submissions within 14 days hereof;
(2)  The other party shall lodge and serve written submissions within 14 days thereafter;
(3)  The applying party shall lodge and serve written submissions in reply within 7 days thereafter;
(4)  The application shall then be disposed of on papers.

27. The above order nisi shall become absolute in the absence of application to vary within the first 14-day period mentioned above.

( H. Au-Yeung )
District Judge

Munros for the applicant

Mr Ashok K. Sakhrani, instructed by Kennedys, for the respondent

[1] The applicant also suggested that Dr Henry Chan (the respondent’s Principal Medical Officer) was appropriate

[2] Explained in various authorities such as Leung Kin Fook & Others v Eastern Worldwide Co Ltd [1991] 1 HKC 55; UES International (HK) Ltd v Maritima Maruba SA (HCA 632, unreported, 19 November 2013) and Weili Su & Another v Shengkang Fei & Others [2019] 2 HKLRD 1214

[3] Paragraph 7 of the applicant’s skeleton submissions dated 17 March 2022

ANTONIA LOUISE ZOYA ANTON v. CATHAY PACIFIC AIRWAYS LTD

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