LIMBU NETRA KUMAR v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER

LIMBU NETRA KUMAR v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER

The court held that the defendants could not rely on their Calderbank letter of 19 June 2002 to vary the costs order nisi because they could have protected their position by payment into court at the relevant time (the proviso to Order 22 r14 is not so widely construed as to excuse mere difficulty in quantification), the defendants' eventual payments into court were significantly short of the judgment, and therefore the costs order nisi stands and is made absolute; costs of the application are payable by the defendants on a common fund basis.

Citation
LIMBU NETRA KUMAR v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER
Parties
Plaintiff: LIMBU NETRA KUMAR; 1st Defendant: YAU LEE CONSTRUCTION CO. LTD; 2nd Defendant: CHAN WING FAI trading as WING FUNG CONSTRUCTION
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 September 2007
Case Number
HCPI234/2002
Procedural Posture
Personal Injuries Action (common Law Damages) / Post Judgment Application to Vary Costs Order Nisi
Outcome
Costs order nisi made absolute; defendants ordered to pay plaintiff's costs of the action as previously ordered; costs of the application ordered against defendants on common fund basis.
Legal Topics
Calderbank Offer, Payment Into Court, Contributory Negligence, Costs Order Nisi, Order 22 Rule 14
Source Language
EN
Personal Injury Civil Procedure Costs Employers' Liability Calderbank Offer Payment Into Court Contributory Negligence Costs Order Nisi +1 more

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Parties

LIMBU NETRA KUMAR

Plaintiff

YAU LEE CONSTRUCTION CO. LTD

1st Defendant

CHAN WING FAI trading as WING FUNG CONSTRUCTION

2nd Defendant

Procedural Posture

Personal Injuries Action (common Law Damages) / Post Judgment Application to Vary Costs Order Nisi

Legal Issues

  1. 1 Whether a without prejudice save as to costs (Calderbank) offer can be taken into account to vary a costs order when the defendant could have protected its costs position by payment into court at the time of the offer
  2. 2 Whether difficulty in quantifying a payment into court (due to lack of medical evidence) can excuse failure to make payment into court
  3. 3 Whether payments into court short of the eventual judgment permit reliance on an earlier Calderbank offer

Ratio Decidendi

The court held that the defendants could not rely on their Calderbank letter of 19 June 2002 to vary the costs order nisi because they could have protected their position by payment into court at the relevant time (the proviso to Order 22 r14 is not so widely construed as to excuse mere difficulty in quantification), the defendants' eventual payments into court were significantly short of the judgment, and therefore the costs order nisi stands and is made absolute; costs of the application are payable by the defendants on a common fund basis.

Court Disposition

Costs order nisi made absolute; defendants ordered to pay plaintiff's costs of the action as previously ordered; costs of the application ordered against defendants on common fund basis.

Orders

  • Costs order nisi made absolute (defendants to pay plaintiff's costs of the action to be taxed if not agreed)
  • Defendants to pay costs of this costs-variation application to the plaintiff on a common fund basis (relating only to this application)