JIANG ZHONG v. UP CHEER LTD AND OTHERS

JIANG ZHONG v. UP CHEER LTD AND OTHERS

The Court of Appeal held that nothing in the ECAO, including s20B(3), unequivocally ousts the court's general discretion to award costs against the Board when it is joined as a party under s25A; however, in the present case the judge had exercised that discretion incorrectly by ordering the Board to pay the plaintiff’s costs where the Board had succeeded on the central issue at trial, and accordingly the variation ordering the Board to pay those costs was set aside and the original costs nisi restored except for parts not pressed by the Board.

Citation
[2018] HKCA 48
Parties
Applicant / Plaintiff: Jiang Zhong; 1st Respondent / 2nd Defendant: Yeung Chun Leung (formerly trading as Dream Home Workshop); 2nd Respondent (discontinued): Kwok Man Lung; 3rd Respondent / 1st Defendant: Up Cheer Limited; 4th Respondent / 3rd Defendant: Cheng Kwok Wei (trading as Hon Hing Engineering Company); 5th Respondent / 4th Defendant (appellant on Appeal): Employees Compensation Assistance Fund Board
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
26 January 2018
Case Number
CACV12/2017
Procedural Posture
Civil Appeal (employees' Compensation and Common Law Damages) / Court of Appeal Judgment on Appeal From District Court/deputy High Court Decisions
Outcome
Appeal allowed in part. Court held it has jurisdiction to order costs against the Board when joined but set aside the deputy judge’s orders requiring the Board to pay the plaintiff’s costs in these proceedings and restored the costs nisi as appropriate; appeal costs ordered.
Legal Topics
Employees' Compensation Assistance Scheme, Joinder of Statutory Fund Board, Relief Payment Under ECAO, Costs Orders Against Intervening Parties, Statutory Interpretation, Subrogation
Source Language
EN
Employment Law Administrative Law Civil Procedure Insurance Law Costs Law Employees' Compensation Assistance Scheme Joinder of Statutory Fund Board Relief Payment Under ECAO +3 more

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Parties

Jiang Zhong

Applicant / Plaintiff

Yeung Chun Leung (formerly trading as Dream Home Workshop)

1st Respondent / 2nd Defendant

Kwok Man Lung

2nd Respondent (discontinued)

Up Cheer Limited

3rd Respondent / 1st Defendant

Cheng Kwok Wei (trading as Hon Hing Engineering Company)

4th Respondent / 3rd Defendant

Employees Compensation Assistance Fund Board

5th Respondent / 4th Defendant (appellant on Appeal)

Procedural Posture

Civil Appeal (employees' Compensation and Common Law Damages) / Court of Appeal Judgment on Appeal From District Court/deputy High Court Decisions

Legal Issues

  1. 1 Whether the court has jurisdiction to order costs against the Employees Compensation Assistance Fund Board when it is joined as a party under section 25A of the ECAO
  2. 2 Whether section 20B(3) (exclusion of costs from relief payment) or other provisions of the ECAO oust the court’s discretion to award costs against the Board
  3. 3 If jurisdiction exists, whether the judge in this case properly exercised the discretion to order the Board to pay the plaintiff’s costs

Ratio Decidendi

The Court of Appeal held that nothing in the ECAO, including s20B(3), unequivocally ousts the court's general discretion to award costs against the Board when it is joined as a party under s25A; however, in the present case the judge had exercised that discretion incorrectly by ordering the Board to pay the plaintiff’s costs where the Board had succeeded on the central issue at trial, and accordingly the variation ordering the Board to pay those costs was set aside and the original costs nisi restored except for parts not pressed by the Board.

Court Disposition

Appeal allowed in part. Court held it has jurisdiction to order costs against the Board when joined but set aside the deputy judge’s orders requiring the Board to pay the plaintiff’s costs in these proceedings and restored the costs nisi as appropriate; appeal costs ordered.

Orders

  • Variation ordering the Board to pay the plaintiff’s costs in both the EC and common law proceedings set aside; the terms of the original costs nisi (except parts not pressed by the Board) restored and made absolute in accordance with the relief sought by the Board
  • Order that the Board pay 80% of the costs of the appeal to Jiang; Jiang’s costs to be taxed according to the Legal Aid Regulations with a certificate for two counsel