Personal Injury
Revisiting the Plaintiff’s discovery duty under Pre-Action Protocol in Practice Direction 18.1 by the Court
Mak Shiu Cheung v. Luk Man Tai [2023] HKDC 1801; DCPI 2741/2023, H.H. Judge Andrew Li in Court, 18 December 2023
Fact
The Defendant’s application
The Defendant took out a Summons for reason of the Plaintiff’s failure to comply with the disclosure requirement under the Pre-Action Protocol and paragraph 66 of PD 18.1, after the Plaintiff started an action and served the Statement of Claim and Statement of Damages. The Defendant applied, among others, for stay of proceedings for 3 months, the Plaintiff to make discovery of documents and disallowance of costs of Statement of Claim and Statement of Damages
Letter before action
The Plaintiff was represented by the same solicitors’ firm in the PI and EC proceedings. Before service of Writ of Summons for the PI proceedings, a letter before action was issued. However, the Plaintiff failed to disclose an existing related employees’ compensation proceedings and make discovery of, among others, receipts for alleged expenses and documentary proof on income or tax liability, as per the specimen of the Schedule A of the pre-action letter.
The constructive reply
The Defendant insurer in its constructive reply requested for the production of the missing documents on quantum and documents related to EC if the accident happened in the course of the Plaintiff’s employment.
The Plaintiff’s solicitors failed to give a response but started the action and filed and served the Statement of Claim and Statement of Damages 3.5 months later. Nevertheless, it was discovered that the requested documents were in fact readily available to the Plaintiff and had been disclosed in the EC proceedings before.
Ruling
The Court rejected all of the Plaintiff’s arguments.
Although the Defendant can be criticized for failing to follow up on its unanswered letter, the primary responsibility for the failure of communication prior to the issue of Writ lies with the Plaintiff.
The Court found that admission of liability is not a prerequisite for an initial reply to amount to a constructive response for the purpose of PD 18.1. Initially, the parties are expected to communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and quantum. It is after the initial response and provision of necessary documents that the Defendant should be considering whether to admit or dispute liability or raise contributory negligence issue.
Held, the Court made an order in terms of the Summons. H.H. Judge Andrew Li further indicated that “this is one of those classic situations where a wasted costs order is warranted as I found the present proceedings have been commenced prematurely and unnecessarily” and that the Defendant had very good grounds to seek wasted costs order against the Plaintiff or the Plaintiff’s solicitors personally on indemnity basis.
Comments
The present case reinforces the long-standing forewarning at paragraphs 9 and 147 in Practice Direction 18.1, which would have usually been ignored/overlooked by claimant’s solicitors, namely, that:-
i) Non-compliance of pre-action protocol may lead to adverse costs consequences/sanctions including a wasted costs order and stay of proceedings; and
ii) Costs order against the party and/or the legal representatives.
As H.H. Judge Andrew Li held, “any half-hearted and half-baked attempt to purportedly comply with the Pre-Action Protocol, would not be tolerated by the court.”
In gist, a Claimant should not have commenced an action without full compliance of the disclosure duty under PD18.1 in such case that the parties could not have attempted meaningful communication on resolution of the claim without a legal action. Otherwise, the legal representative will be exposed to a wasted costs order.
In LI JIE v HONG KONG AIRPORT SERVICES LIMITED [2024] HKDC 111; DCPI 209/2022, another decision given by H.H. Judge Andrew Li on 19 January 2024 regarding the Defendant’s application for setting aside the Order for retrospective extension of validity of Writ of Summons, H.H. Judge Andrew Li referred to the Mak Shiu Cheung case again regarding the breach of the pre-action protocol of PD18.1 by the Plaintiff for failing to provide the required information and documents specified under Schedule A thereof and remarked that the Defendant may be able to claim wasted costs or sanctions against the Plaintiff.