(A) Introduction
Hong
Kong Courts rigorously scrutinize legal representatives’ conduct in case
management, imposing wasted costs orders for unreasonable conduct that wastes
judicial resources, as demonstrated in a recent case Chan Ming Kit v Luk Kwok Keung
(DCPI 1964/2022, date of judgment: 30 June 2025).[1]
In Chan Ming Kit v Luk Kwok Keung, the Court made four significant costs orders:[2] (1) on liability, the Defendant shall pay the Plaintiff’s costs and the counterclaim on an indemnity basis to be taxed if not agreed, with certification for Counsel; (2) on quantum, the Defendant shall pay the Plaintiff’s costs at a scale commensurate to those awarded by the Small Claims Tribunal; (3) legal representatives shall bear their own costs for preparing the certificate of time estimate and the setting-down application; and (4) the Defendant’s solicitors shall personally pay the costs of and occasioned by (i) the agreement of the trial bundle index and (ii) the preparation and service of the trial bundle on an indemnity basis to be taxed if not agreed, with certificate for Counsel covering the costs of Counsel’s submissions relevant to these matters and no right to recover these costs from the Defendant.
This article analyzes the Court’s rulings on liability, quantum, certificates of time estimate and trial bundle management, highlighting practitioners' duty to uphold the underlying objectives in Order 1A, rule 1,[3] particularly costs-effective, expeditious proceedings, reasonable proportion and procedural economy as well as fair resource distribution.
(B) Liability
This case involves a traffic accident between the Plaintiff (driver of private vehicle TW8898 (“TW8898”)), and the Defendant (driver of private vehicle VB4521 (“VB4521”)), at Tam Kon Shan Interchange (the “Interchange”) on 15 February 2021 at 3:10 p.m. (the “Accident”). The Plaintiff claimed that the Accident was caused by the Defendant’s negligent driving while the Defendant counterclaimed full liability against the Plaintiff despite his conviction for careless driving.
The Court’s Findings
The Court characterized the dispute as having “no special feature” separating it from “run-of-the-mill traffic cases”[4] and found the facts “simple and straightforward”.[5] It rejected the Defendant’s account, concluding he lied in his police witness statement and trial evidence based on the following:[6]
(1) Video Footage Contradiction:
Front/rear camera evidence directly conflicted with the
Defendant’s allegations about the vehicles’ relative positions during
entry/exit maneuvers.[7] The
Court rejected the Defendant’s argument that VB4521 only appeared last-minute
in the front camera due to its angle.[8]
(2) Speed and Lane Changes:
VB4521
matched or exceeded TW8898’s speed after entering the interchange. VB4521
accelerated while changing lanes. It moved from the left 3rd lane to
the left 2nd lane, then abruptly cut in front of TW8898.[9] This
gave the Plaintiff insufficient time to react, causing the Accident.[10]
(3) Legal Consequences:
The
Defendant’s careless driving conviction shifted the burden to him to show that
he was not negligent in the Accident. The Court found that the Defendant failed
to discharge this burden.[11]
(4) Inapplicability of Road User’s Code:
The “look out” duty assumes reasonable notice for other drivers. By
suddenly cutting in front of TW8898, the Defendant left the Plaintiff no time to
notice his intention and react accordingly.[12]
(5) Irrelevance of Left Indicator:
As VB4521 was mostly behind TW8898, it was unreasonable to expect the Plaintiff
to anticipate its intent to cut.[13]
Given the abruptness of the Defendant’s decision to cut into the left 1st lane in front of TW8898, the Court held the Plaintiff was not contributory negligent.[14]
In light of the above, the Court dismissed the Defendant’s defence on liability and held that the Defendant should be penalized by indemnity costs for advancing false evidence on how the Accident happened, pursuing a hopeless defence on liability, wasting judicial resources and abusing the process of the Court.[15]
(C) Quantum
The Plaintiff claimed HK$272,818.89 for bodily injuries, and vehicle damage to TW8898.[16]
Expert Evidence & Medical Evidence
The Court agreed with the parties’ decision not to call any expert evidence as the Plaintiff’s claim was modest and his injuries appear insubstantial.[17] That said, the Court emphasized that it would not assume that a treating doctor has critically assessed the genuineness and reliability of a patient's complaints, so it is usually slow to accept, in a wholesale fashion, the complaints recorded by the treating doctors (particularly for subjective complaints) as facts.[19] In a simple and straightforward personal injury case, the plaintiff should provide objective medical evidence to show the injuries he sustained as a result of the accident.[20]
In this case, the Court found that the Plaintiff failed to show, on a balance of probabilities, that he sustained trivial injuries during the Accident on the following grounds: (1) the minor collision impact;[21] and (2) no objective medical evidence.[22]
The Court awarded the Plaintiff damages in the amount of HK$70,500, significantly below the Plaintiff’s claim on the following grounds:
(1) PSLA: HK$6,000 was awarded. The Court found the Plaintiff’s injuries trivial given the lack of objective medical evidence.[23]
(2) Loss of Earnings & MPF: Nil. The Plaintiff, a law firm partner, failed to prove his actual income loss during sick leave.[24]
(3) Special Damages: HK$3,000 for one private medical treatment and physiotherapy; HK$500 for travelling expenses. Tonic food claims were rejected as the injuries were trivial.[25]
(4) Vehicle Repairs: HK$61,000 was accepted, supported by loss adjuster’s report.[26]
The Court held that the Defendant shall pay the Plaintiff’s costs on the issue of quantum at a scale commensurate to those awarded by the Small Claims Tribunal, subject to wasted costs orders, on the following grounds:[27]
(1) The Plaintiff recovers
damages within the jurisdiction of the Small Claims Tribunal.
(2) He should have known at
the commencement of the present case that he would only have reasonable
prospects to recover damages within the jurisdiction of the Small Claims
Tribunal.
(3) He failed to adduce
sufficient evidence to prove his alleged pre-trial loss of earnings.
For procedural economy, the Court summarily assessed the Plaintiff’s costs on the issue of quantum at HK$5,000.[28]
(D) Certificates of Time Estimate
The Plaintiff estimated 4 hours for his examination-in-chief while the Defendant estimated 4 hours for his own examination-in-chief and 2 hours for his witness Ms Luk.[29] The Court found the parties' estimates grossly unreasonable and inconsistent with a civil trial nowadays as well as §2 of the Court Order dated 24 November 2022 requiring witness statements to stand as chief evidence absent court direction. Minimal "topping-up" questions could never justify such lengthy estimates.[30]
Further, the Defendant’s 12-hour cross-examination estimate for the Plaintiff was excessive given the case involved a split-second collision with minor injuries. Similarly, the Plaintiff’s estimates were unjustifiable as cross-examination focused solely on liability.[31]The Court found that such simple and straightforward personal injury case suitable to be included in the Running List with an estimate length of trial of 2 days.[32] It stressed that trial judges must scrutinize time estimates at Pre-Trial Reviews or trial, penalizing grossly erroneous estimates to uphold the underlying objectives of the Civil Justice Reform.[33]
The Court viewed that that the legal representatives failed to assist the court to promote procedural economy in the conduct of proceedings, and ensure that judicial resources are distributed fairly. The 4-day estimate wasted judicial resources, delaying other cases and leaving 2 hearing dates unused.[34]
In light of the above, the Court held that legal representatives shall personally bear their own the costs of and occasioned by the preparation of the certificates for time estimate, and the application for setting down.[35]
(E) Trial Bundle Management
The Court found the inclusion of 60 pages (27 items) of correspondence (mostly inter-solicitor correspondence) irrelevant to the issues to be considered at the trial.[36] Most involved requests for specific discovery of documents or case management directions to be obtained from the PI Master.[37] These letters were included solely at the Defendant’s solicitors’ insistence, after the Plaintiff’s solicitors reasonably ceased engagement due to cost inefficiency.[38]
The Court highlighted that legal representatives should prepare trial bundles in an efficient manner. Where the lay client gives instructions contrary to the underlying objectives of the Civil Justice Reform, legal representatives should explain to their client and persuade him/her to retract such instructions.[39]
As
such, the Court held that that the costs of and occasioned by the agreement of
trial bundle index should be borne by the Defendant’s solicitors personally, to
be taxed on indemnity basis if not agreed.[40]
The Defendant’s solicitors repeatedly demanded early delivery of the paginated bundle. After the Plaintiff’s solicitors provided a draft out of courtesy, the Defendant revised previously agreed terms, demanding inclusion of full Writ of Summons.[41] The Defendant then renewed complaints in November 2024, seeking a 30-day deadline extension.[42]
The Court emphasized that agreeing the trial bundle index and adhering to the agreed index to prepare the trial bundles are routine and elementary tasks for a litigation solicitor.[43] The Court attributed this to gross incompetence of the Defendant’s solicitors.[44]
As
such, the Court held that the costs of and occasioned by the preparation of the
trial bundle should be borne by the Defendant’s solicitors personally, to be
taxed on an indemnity basis if not agreed.[45]
The
Court dismissed the Defendant’s complaint of delay in the service of the trial
bundle on the following grounds: (1) accepting their
interpretation would render Order 3 rule 2(4) of the Rules of the District
Court otiose; and (2) no material prejudice occurred as the Defendant could have
started preparation of the trial based on the agreed trial bundle index.[46]
In conclusion, this case
serves as a stark warning: grossly erroneous time estimates, procedural waste, and unmeritorious
defences attract severe costs penalties, including personal liability for
solicitors. Practitioners must (1) carefully and realistically assess the merits of their
client’s case at the outset; (2) never advance false or exaggerated claims; (3)
obtain objective medical evidence at the early stage of the proceedings; (4)
exclude irrelevant documents from trial bundles; and (5) prepare reasonable certificates
of time estimate.
[1] https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2022/DCPI001964_2022.docx
[2] Chan Ming Kit v Luk
Kwok Keung (DCPI 1964/2022, date of judgment: 30 June 2025), § 77-80
[3] https://www.elegislation.gov.hk/hk/cap336H!en?INDEX_CS=N&xpid=ID_1438403028597_001
[4] Chan Ming Kit v Luk
Kwok Keung (DCPI 1964/2022, date of judgment: 30 June 2025), § 5
[5] Ibid, § 6
[6] Ibid, § 14
[7] Ibid, § 14.1
[8] Ibid, § 14.2
[9] Ibid, § 15
[10] Ibid, § 15
[11] Ibid, § 17
[12] Ibid, § 19
[13] Ibid, § 20
[14] Ibid, § 21
[15] Ibid, § 77
[16] Ibid, § 3
[17] Ibid, § 25
[18] Ibid, § 26
[19] Ibid, § 26
[20] Ibid, § 27
[21] Ibid, § 28.1
[22] Ibid, § 28.2
[23] Ibid, § 29
[24] Ibid, § 34
[25] Ibid, § 38-40
[26] Ibid, § 42-44
[27] Ibid, §78
[28] Ibid, §78
[29] Ibid, §50
[30] Ibid, §51
[31] Ibid, §52
[32] Ibid, §53
[33] Ibid, §54
[34] Ibid, §55
[35] Ibid, §56
[36] Ibid, §61
[37] Ibid, §61
[38] Ibid, §62
[39] Ibid, §63
[40] Ibid, §64
[41] Ibid, §67
[42] Ibid, §69
[43] Ibid, §72
[44] Ibid, §72
[45] Ibid, §73
[46] Ibid, §76
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