RUKHSAR BEGUM v. NATIVE ENGLISH CENTER LTD t/a THE GREEN LOUNGE

Parties

Procedural Posture

Employees Compensation (dcec 867/2015) and Personal Injuries (dcpi 2243/2015) / Costs Variation Application Determined (hearing in Chambers; Decision on Variation of Costs Orders Nisi)

Legal Issues

1. 1 Whether the 50% split of three duplicated cost items between EC and PI actions (split costs orders) should be varied or set aside
2. 2 Whether the statutory scheme under the Employees Compensation Assistance Ordinance and the Legal Aid Ordinance produces a risk that an aided plaintiff's damages would be diminished by a Director's common fund charge if PI costs remain unpaid
3. 3 Whether safeguards can be imposed to prevent duplication of recovery so that employer is not prejudiced by setting aside the split costs orders

Ratio Decidendi

The court granted the applicant's variation application and set aside the 50% split of the duplicated costs because, in the factual context of an aided plaintiff facing likely Fund Board relief and an insolvent employer, maintaining the split would create a real risk that the plaintiff's damages would be substantially diminished by the Director's common fund charge; this risk could be avoided and employer prejudice prevented by removing the split while imposing safeguards to prevent duplication of recovery.

Court Disposition

Application to vary split costs orders granted in part; the costs order nisi under para 130 varied to an order absolute with specified exceptions; applicant granted costs of the summons to be taxed under Legal Aid Regulations; copy of decision to be served on Fund Board.

Orders

• Split costs orders (50% apportionment in paras 127(1) and 130(1)) set aside in respect of duplicated items and variation granted
• There be a costs order absolute that the defendant do pay the plaintiff the costs of these proceedings, with the following exceptions: 20 percent of the costs of drafting the 1st witness statement disallowed