林文英 對 SO WAH KWAN(蘇華坤)the administrator of the estate of CHIU LAI CHING(趙麗貞), deceased, formerly t/a BEAUTY REGENT(麗晶專業美容中心)

林文英 對 SO WAH KWAN(蘇華坤)the administrator of the estate of CHIU LAI CHING(趙麗貞), deceased, formerly t/a BEAUTY REGENT(麗晶專業美容中心)

The court exercised its discretion under Order 35 r 2 to refuse the plaintiff’s application to set aside the judgment: medical records and contemporaneous evidence did not establish inability to attend, the plaintiff’s factual case lacked objective support and real prospects of success, the defendant would be...

Source-derived case information.

Citation
[2023] HKDC 669
Parties
Plaintiff: LAM MAN YING; Defendant: SO WAH KWAN (administrator of the estate of CHIU LAI CHING)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 May 2023
Case Number
DCPI2309/2018
Procedural Posture
Personal Injury / Post Trial Applications (application to Set Aside Default Judgment; Variation of Interim Costs Order; Return of Conditional Payments)
Outcome
Plaintiff’s application to set aside the judgment dismissed; defendant’s application to vary interim costs order granted; defendant entitled to repayment of conditional payments with interest.
Legal Topics
Setting Aside Judgment for Non Appearance, Order 35 Rule 2 Discretion and Factors, Indemnity Costs/interim Costs Orders (order 22/22 A), Return of Conditional Payments, Assessment of Credibility and Medical Evidence
Source Language
ch
Civil Procedure Personal Injury Costs and Security for Costs Mental Capacity/fitness to Testify Setting Aside Judgment for Non Appearance Order 35 Rule 2 Discretion and Factors Indemnity Costs/interim Costs Orders (order 22/22 A) Return of Conditional Payments +1 more

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Parties

LAM MAN YING

Plaintiff

SO WAH KWAN (administrator of the estate of CHIU LAI CHING)

Defendant

Procedural Posture

Personal Injury / Post Trial Applications (application to Set Aside Default Judgment; Variation of Interim Costs Order; Return of Conditional Payments)

  1. 1 Whether the plaintiff’s non-appearance due to alleged psychiatric hospitalization justified setting aside the judgment under Order 35 rule 2
  2. 2 Whether the plaintiff has real prospects of success such that a retrial should be ordered
  3. 3 Whether variation of the interim costs order is warranted under Order 22/22A and whether conditional payments should be returned with interest

Ratio Decidendi

The court exercised its discretion under Order 35 r 2 to refuse the plaintiff’s application to set aside the judgment: medical records and contemporaneous evidence did not establish inability to attend, the plaintiff’s factual case lacked objective support and real prospects of success, the defendant would be prejudiced by retrial and could not be adequately compensated. The court therefore declined rehearing. Separately, applying Orders 22 and 22A the court varied the interim costs order in favour of the defendant by directing costs on an indemnity (compensatory) basis from 5 September 2020, awarded interest on actual paid costs at a rate 3% above the judgment rate for the relevant...

Court Disposition

Plaintiff’s application to set aside the judgment dismissed; defendant’s application to vary interim costs order granted; defendant entitled to repayment of conditional payments with interest.

Orders

  • Application by plaintiff dated 7 March 2023 dismissed
  • Defendant’s application to vary interim costs order granted: defendant’s costs to be calculated on an indemnity (compensatory) basis from 5 September 2020