So Kam (蘇金) v Guildford Ltd

Judge Andrew Li
21–23 December 2020, 22 March 2021

Facts

A motorcycle ridden by P came into collision with a taxi owned by D1 and driven by D2 who had hired the taxi from D1. P brought a personal injuries action against Ds.

Held, dismissing the action with costs in favour of Ds and directing P’s solicitors to show cause as to why a wasted costs order should not be made against them, that:

  1. On the evidence, the collision was caused entirely by P’s negligence; D2 was not to blame; and D1 would not be vicariously liable even if D2 had been to blame. (See paras.54–55.)
  2. There was insufficient evidence to commence this action. P was not on legal aid. He only paid the negligible amount it took to provide photocopies of several documents and print a few colour photographs. Otherwise it was with the financial assistance of his solicitors that he went through the whole trial. It was obvious that Ds would never be able to recover costs ordered against P. (See paras.84, 89–91, 93.)
  3. In principle it was not objectionable for solicitors to pay disbursements, including counsel’s fees and expert’s charges. That did not amount to champerty or maintenance. Taking on cases pro bono was laudable. But the burden was on the solicitors acting on such a basis to make careful inquiry and satisfy themselves that an honest case existed or that there was at least a reasonable cause of action or defence. And they could not bargain with the client for an interest in the subject-matter of litigation or for remuneration proportionate to the amount that may recovered by the client. The foregoing principles were established by the cases. It was to be observed that failure to follow these principles had particularly adverse effects in personal injuries actions (Ladd v London Road Car Co [1900] LT 80, Clyne v New South Wales Bar Association (1960) 104 CLR 186, Winnie Lo v HKSAR (2012) 15 HKCFAR 16 applied). (See paras.98–99.)
  4. This action was hopeless and should never have been brought. (See para.100.)
  5. There was power under O.62 r.8 of the Rules of the District Court (Cap.336H, Sub.Leg.) to make solicitors who decide to pursue a hopeless case on a litigant’s behalf to pay the other side’s costs when it was apparent that their client was in no position to do so (Re Labour Buildings Ltd (CACV 37/2010, [2010] HKEC 624) applied). (See paras.106–109.)

Action

This was a personal injuries action brought by the plaintiff against the first and second defendants.

Editorial Note: This judgment is reported for the principles stated and applied by the Judge in deciding to direct the plaintiff’s solicitors to show cause why a wasted costs order should not be made against them. In fairness to them, the judgment should of course read on the basis that it is not yet known what cause they may or may not show.

Jurisdictions