A A

HCA 112/2009
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D HIGH COURT ACTION NO 112 OF 2009 D

_______________
E E

BETWEEN
F F
ETRATECH ASIA-PACIFIC LIMITED Plaintiff
G (formerly AUDIO MECHANICAL CORPORATION G
LIMITED)
H H
and
I I

J
LEADER PRINTED CIRCUIT BOARDS LIMITED Defendant J

K K
_______________

L L

M
Before : Hon Poon J in Chambers M
Date of Hearing : 8 April 2013
N Date of Decision : 23 April 2013 N

O O
_______________
P DECISION P
_______________
Q Q

1. Order 22, rule 20(1) of the Rules of the High Court1 provides :
R R

“Where a defendant’s sanctioned offer or sanctioned payment to

S settle the whole claim is accepted without requiring the leave of S

T 1 T
Cap 4A.

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the Court, the plaintiff is entitled to his costs of the proceedings

B up to the date of serving notice of acceptance, unless the Court B
otherwise orders (‘the Otherwise Proviso’).”

C C
2. The applications now before the court raise the important
D question as to how the court will exercise the costs discretion under the D

Otherwise Proviso. They arose in this way.

E E

F A. BACKGROUND F

G
A1. The main proceedings G

3. The plaintiff is a supplier of electronic products. The

H H
defendant was at the material times a manufacturer and/or supplier of
I printed circuit boards. Upon the plaintiff’s approval of production I

samples of the printed circuit boards provided by the defendant, the

J J
plaintiff entered into a series of agreements as evidenced by various
K purchase orders between October 2005 and February 2008 for the sale of K

126,972 units of printed circuits boards by the defendant to the plaintiff.

L L
The defendant delivered the printed circuit boards between 18 October
M M
2005 and 11 March 2008. The plaintiff paid for them in full in March

N
2008. N

O 4. It was the plaintiff’s case that the defendant knew, at the time O

of the contract, that the printed circuit boards were to be installed in a lock
P P
assembly for onward sale to Sargent & Greenleaf (“S&G”) in the USA as a
Q component/parts of gun safes. Q

R R
5. Since about December 2007, S&G had complained that the

S
lock assembly of the gun safes (in which the said printed circuit boards S
were installed) failed to function owing to electrostatic discharge. The
T T

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plaintiff alleged that the printed circuit boards supplied by the defendant
B B
failed to meet the requisite standard, namely the electronic or electrical
C products containing the printed circuit boards should not lose function or C

degrade in performance or lose data when discharge voltage with up to

D D
8,000 volts or air discharge voltage with up to 15,000 volts was applied to
E them (the “ESD Standard”). While the production samples manufactured E

by the defendant met and satisfied the ESD Standard, the printed circuit
F F
boards subsequently supplied by the defendant failed to do so. The
G defendant was in breach of the conditions and warranties of the sale G

contracts. As a result thereof, it had suffered substantial loss in paying

H H
substantial compensation to S&G, incurring costs and expenses in
I defending and/or settling the claims with S&G and in modifying the I

defective printed circuit boards so as to render them to meet the ESD

J J
Standard.
K K
6. On 14 January 2009, the plaintiff commenced the present
L L
action against the defendant, seeking loss and damages, essentially

M
representing the compensations paid to S&G, which accumulated from M
US$232,625.00 when the Writ was issued in January 2009 to
N N
US$448,321.00 in January 2012.

O O
7. On 29 March 2012, the defendant served a notice of
P sanctioned payment of the sum of HK$100,000.00. The sanctioned P

payment was accepted by the plaintiff on 26 April 2012.

Q Q

R 8. In serving the notice of sanctioned payment, the defendant R

also enclosed a letter dated 29 March 2012 alleging that the costs should
S S
be on the District Court scale and the costs should be subject to the court’s

T jurisdiction to order otherwise in that the claim was grossly exaggerated. T

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By a reply letter dated 17 April 2012, the plaintiff disputed that costs
B B
should be on the District Court scale or that the claim was grossly
C exaggerated. C

D A2. The costs applications D

E 9. By summons dated 1 June 2012, the defendant applied for an E

order under the Otherwise Proviso that each party pays its own costs of the
F F
action or alternatively the defendant do pay the plaintiff 25% (or such
G percentage as the court deems fit) of its costs, to be taxed, if not agreed on G

the High Court or District Court scale, on the grounds that the plaintiff had
H H
signed statements of truth in respect of the pleadings and witness
I statements which are untrue or, without any honest belief in their truth and I

that the defendant had wasted costs in defending a grossly inflated claim.
J J

K 10. In response, the plaintiff took out a summons dated 1 August K

2012, seeking an order that notwithstanding that the sanctioned payment

L L
accepted by the plaintiff was less than HK$1 million, the defendant do pay
M the plaintiff costs of this action to be taxed on the High Court scale, if not M

agreed.
N N

11. Two principal matters arose from the applications. The first,
O O
as said, relates to the Otherwise Proviso. The second concerns the scale
P of costs to be applied to taxation. P

Q Q
A3. Master Kwang’s direction
R R
12. The applications were first listed before Master Kwang. He
S was faced with two unreported decisions by two other masters as to how S

the Otherwise Proviso should be approached, namely, Cheung Mei Po v

T T

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Chan Yu Ching, Alexs2 and Lin Yanjin v Smart Billion Engineering Ltd.3
B B
And up to then, there had been no higher authority on the point. The
C learned Master considered that some authoritative guidance from a judge C

on how the Otherwise Proviso should be approached was desirable. He

D D
therefore directed that applications be placed before me, as the Civil
E Listing Judge, for disposal. E

F 13. More recently, the Otherwise Proviso was applied by Deputy F

High Court Judge Burrell in Fung Yim Chun & Anor v Fung Kui Wah.4
G G
Apparently, the two decisions of the masters were not cited to him.
H H
I think given the present state of authorities, it is an opportune moment for

I
me to say something on how the costs discretion under the Otherwise I
Proviso is to be exercised.
J J

B. THE OTHERWISE PROVISO

K K

B1. The proper approach

L L

14. Order 22 is a new, self contained code introduced by the CJR

M M
into the Rules of the High Court in April 2009. Among other things, it
N introduced the new concept of sanctioned offer and sanctioned payment N

along the lines of Part 36 of the English Civil Procedure Rules with
O O
modifications and supplements. Although the provisions relating to
P sanctioned offers and sanctioned payments are derived from the P

corresponding provisions in Part 36 of CPR, there is one material

Q Q

R R

2
HCPI71/2010, 24 June 2011, Master KK Pang.
S 3 S
HCPI739/2009, 10 August 2011, Master Marlene Ng (as she then was).
4
HCA115/2010, unreported, 5 April 2012, which appears to be the only authority on
T the point by a judge so far. T

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difference in the provisions relating to acceptance of a sanctioned offer or

B B
sanctioned payment by a plaintiff, which is this.
C C
15. Before April 2007, the then Part 36.13(1) provided where a
D Part 36 offer or a Part 36 payment was accepted without needing the D

court’s permission, the claimant would be entitled to his costs of the

E E
proceedings up to the date of serving notice of acceptance. Part 36.13(2)
F went on to provide that where a Part 36 offer or a Party 36 payment related F

to part only of the claim and at the time of serving notice of acceptance the
G G
claimant abandoned the balance of the claim, the claimant would be
H H
entitled to his costs of the proceedings up to the date of serving notice of

I
acceptance, unless the court ordered otherwise. The new Part 36 came I
into force in April 2007. Payment into court no longer plays any role in
J J
the Part 36 offer to settle proceedings. The costs consequences of

K
accepting a Part 36 offer are contained in Parts 36.10(1) and (2), which are K
substantial reproduction of the old Parts 36.13(1) and (2).
L L

16. In short, under the CPR, if the whole of the claim is settled by
M M
way of a Part 36 offer, the claimant is as of right entitled to costs up to the
N date of serving notice of acceptance. The court has no power to make any N

other costs order. Where the claim is partially settled with an

O O
abandonment of the balance, the claimant is entitled to costs up to the date
P of serving notice of acceptance unless the court orders otherwise. 5 The P

position in our Order 22, rule 20(1) is entirely different. The Otherwise
Q Q
Proviso may be invoked only if the whole claim is settled by acceptance of
R the sanctioned payment or sanctioned offer. R

S S

5
See generally the commentary in Civil Procedure 2013, Vol 1, at para 36.10.1 at
T p 1141. T

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A A

17. Given the significant difference, I do not think the otherwise

B B
provisions in Part 36 of the CPR or the English case law thereunder is
C helpful in informing the approach to the Otherwise Proviso in our C

Order 22.6
D D

18. In my view, Order 22, rule 20(1) plainly envisages that upon
E E
acceptance of the sanctioned payment or sanctioned offer, the plaintiff is,
F as a prima facie rule, entitled to his costs of the proceedings up to the date F

of serving notice of acceptance. The prima facie rule may, however, be

G G
displaced when the court orders otherwise by applying the Otherwise
H H
Proviso.

I I
19. The prima facie rule is important. In ordinary civil
J litigations, costs are incurred in a recoverable inter-parties sense from the J

moment the proceedings commenced and continue to be incurred as the

K K
litigation progresses. Every litigant, who needs to incur costs in order to
L pursue or defend a claim, definitely regard them as very real and present L

expenses. Further, litigation is inescapably chancy. The prospect of

M M
paying costs to the other side after losing one’s case in addition to his own
N costs must very much exercise a party’s mind. Costs thus factor heavily N

in the negotiations and considerations of settlement. Sometimes, it may

O O
even make or break the settlement. But uncertainty as to costs is a
P notoriously difficult subject. It may easily frustrate an otherwise P

meaningful settlement negotiation and even become an irremovable

Q Q
obstacle to the settlement itself. What the prima facie rule does is to
R create certainty as to the costs consequences upon acceptance of the R

sanctioned payment or sanctioned offer. A party knows the exact extent

S S

6
See a similar observation by Master Ng in Lin Yanjin v Smart Billion Engineering
T Ltd, supra, at para 96. T

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of his exposure or entitlement to costs, as the case may be. Thus he will
B B
not be inhibited in proposing or accepting an otherwise reasonable offer to
C settle, as the case may be, because of uncertainty as to the costs C

consequences. This surely facilities the principal objective of sanctioned

D D
payments and sanctioned offers, which is to encourage the parties to take
E positive settlement seriously and avoid unproductive and expensive E

prolongations of the litigation, resulting in more early settlements :

F F
Montrio Limited & Anor v Tse Ping Shun David.7
G G
20. By virtue of the Otherwise Proviso, the court retains the
H H
discretion to depart from the prima facie rule where necessary. But the

I
discretion should only be exercised in exceptional circumstances that I
clearly warrant a different costs order. Otherwise, the certainty as to
J J
costs consequences created by the prima facie rule, one of the very

K
important features underpinning the effectiveness of sanctioned payments K
and sanctioned offers, will be greatly diminished.
L L

21. While it is impossible and indeed imprudent to exhaustively

M M
state the exceptional circumstances that justify the departure from the
N prima facie rule, which by definition must be rare, the burden rests N

squarely on the party seeking to invoke the Otherwise Proviso to establish

O O
such circumstances. The court will not lightly displace the prima facie
P rule until and unless that the applicant has discharged the burden to its P

satisfaction.
Q Q

R 22. This requirement to demonstrate exceptional circumstances R

has been referred to and applied in all the three cases referred to in Part A3
S S

7
HCA757/2009, Decision on Costs, unreported, 17 February 2012, a decision of
T mine, at para 20. T

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above. 8 I hope by my analysis, the jurisprudential basis for such a

B B
requirement is now established.
C C
23. Further, when applying the Otherwise Proviso, the court is in
D effect depriving the plaintiff his costs or even ordering him to pay the D

defendant costs. The plaintiff will be significantly disadvantaged. In

E E
my view, fairness dictates that the plaintiff, who is considering whether to
F accept the sanctioned payment or sanctioned offer, should be given a prior F

warning that the defendant will apply to invoke the Otherwise Proviso and
G G
how it is to be invoked. The plaintiff can then make an informed decision
H H
whether to accept the payment or offer with the full knowledge that upon

I
acceptance, the prima facie rule on his entitlement as to costs may be I
displaced. Further, if a defendant is allowed to invoke the Otherwise
J J
Proviso without giving the prior warning, a plaintiff who has accepted the

K
payment or offer on the faith that he would be entitled to recover his costs K
up to the date of serving notice of acceptance would never know if at the
L L
next moment the defendant would apply for a different costs order. The

M
certainty as to costs created by the prima facie rule will be gone. Faced M
with the uncertainty as to costs, the plaintiff would be greatly handicapped
N N
in deciding if he should accept the payment or offer in the first place. It

O
would render the operation of sanctioned payments and sanctioned offers O
ineffectual.
P P

24. This requirement of a prior warning did not feature in the

Q Q
judgment of Deputy Judge Burrell in Fung Yim Chun & Anor v Fung Kui
R R
8
Cheung Mei Po v Chan Yu Ching, Alexs, supra, per Master KK Pang at para 18;
S Lin Yanjin v Smart Billion Engineering Ltd, supra, per Master Ng at paras 87-111, S
where the learned master also reviewed the English and Australian authorities in
detail; Fung Yim Chun & Anor v Fung Kui Wah, supra, per Deputy Judge Burrell at
T para 12. T

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A A

Wah. The simple reason is that the plaintiff had been clearly forewarned
B B
in the solicitors’ correspondence of the application under the Otherwise
C Proviso. C

D 25. Master KK Pang and Master Ng differed on this point. D

Master Pang considered the requirement unnecessary. 9 Master Ng

E E
10
disagreed. Both referred to the pre-CPR English case of Glenlion
F Construction Limited v Beqverfoam (Moreton) Limited11 on how the court F

exercised its discretion to make an otherwise costs order after a plaintiff

G G
had accepted a payment into court under the old Order 62, rule 10(2) of the
H H
then English Rules of the Supreme Court in support of their conclusion.

I
For present purposes, I need not go into detail of how the learned Masters I
dealt with that authority. It is not necessary because it is a case decided
J J
on the pre-CPR provisions. We are now in the post-CJR era. We

K
should look at the current provisions, that is, Order 22 rule 21(1), to see K
how the court should approach the Otherwise Proviso. And as I have
L L
demonstrated above, on a proper understanding of Order 22, rule 21(1)

M
with a view to achieving its intended effect to encourage settlements, the M
requirement of a prior warning is indeed a pre-requisite for applying the
N N
Otherwise Proviso. In any event, if necessary, I prefer the reasoning of

O
Master Ng when she concluded that on the authority of Glenlion O
Construction Limited v Beqverfoam (Moreton) Limited, a prior warning is
P P
required.

Q Q
26. In sum, the prima facie rule in Order 22, rule 21(1) should
R apply unless (1) the defendant discharges the burden of showing R

S 9 S
Supra, at para 68.
10
Supra, at paras 107-109.
T 11 T
(1983) 134 Fam Law 861 (CA).

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exceptional circumstances that justify a departure; and (b) he has given a

B B
prior warning to the plaintiff the he will apply to invoke the Otherwise
C Proviso upon acceptance of the sanctioned payment or sanctioned offer. C

D 27. With this approach in mind, I now turn to the defendant’s D

application.
E E

F B2. The present case F

G B2.1 Exceptional circumstances G

H 28. On exceptional circumstances, the defendant initially H

contended that the plaintiff had signed statements of truth in respect of the
I I
pleadings and witness statements which are untrue or, without any honest

J belief in their truth. However, at the hearing before me, Mr Kwok, SC, J
for the defendant, did not press on with these grounds.12 He just focused
K K
his submissions on the defendant’s complaint that the plaintiff had

L exaggerated its claim. He cited Order 62, rule 5(2)(c), which mandated L

the court, in exercising its costs discretion, to have regard to the point
M M
whether a claimant who has succeeded in his claim, in whole or in part,

N exaggerated his claim. He argued that the plaintiff had exaggerated the N

claim, as evidenced by the fact that it eventually accepted the sanctioned

O O
payment of HK$100,000, a much lower sum than what was claimed. He
P repeatedly described the plaintiff’s claim as a HK$100,000 claim, which is P

well within the District Court’s jurisdiction. With respect, I disagree.

Q Q

29. The mere fact that the plaintiff had accepted the sanctioned
R R
payment of a mere HK$100,000 does not necessarily mean that its original
S S

12
I would simply say that on the evidence available, the defendant would have
T tremendous difficulty to establish these grounds. T

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claim was exaggerated. Properly understood, the plaintiff’s claim for loss
B B
and damage was based on the actual compensations paid to S&G paid and
C increased from time to time. The compensations paid were well C

documented. This militates strongly against Mr Kwok’s contention that

D D
the plaintiff had inflated the claim. Further, the plaintiff had every
E commercial reason to accept the sanctioned payment, which can be found E

in the undisputable evidence of its responsible officer, Mr Michael

F F
Desnoyers, in his 4th affirmation :
G G
“8. The plaintiff’s decision to settle the case reflected on
commercial considerations in light of the escalating legal
H costs and litigation risks, and the mere fact that the plaintiff H
accepted a much lesser amount than their claim is no basis
for any suggestion that the plaintiff had grossly inflated its
I claim in the first place. The plaintiff has already incurred I
a significant amount of legal fees in this action and if the
matter was to go for a full trial which was listed for hearing
J J
next year with 9 days reserved with senior and junior
counsel involved for both sides, the plaintiff would be
K expected to spend further significant sums of money on the K
preparation and the trial. The issues involved in this
action were complicated both on the facts and law. For
L example, there was no express contractual provision L
requiring the PCBs supplied by the defendant to meet or
M satisfy the ESD Standard or requiring the defendant to M
notify the plaintiff for the change of materials, and the
plaintiff had to reply on implied terms which might not be
N accepted by the court. Also the burden of proving the N
PCBs supplied by the defendant rested on the plaintiff and
this issue was hotly contested by the parties and their
O O
experts. Though we strongly believe that the PCBs
supplied by the defendant under the relevant purchase
P orders were defective, there was no certainty that the court P
would also see it that way at the trial, the complexity of the
issues involved could also be seen by the engagement of
Q the expert witnesses and senior counsel and junior counsel Q
by the parties. Further the plaintiff had to rely on an
R overseas witness from Sargent & Greenleaf and there was R
no guarantee that we would be able to secure his attendance
at the trial. To illustrate the magnitude of the costs
S involved, there had been 6 Case Management Conferences S
where counsel was briefed to attend 5 of them and senior
counsel attended the last Case Management Conference, 5
T T

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A A

expert reports including 1 joint report were prepared by Dr

B Leung after many costly ESD tests were undertaken by him, B
and the documents in support of the plaintiff’s claim extend
to over 7,000 pages. The plaintiff had been in
C negotiations with Sargent & Greenleaf with regard to C
retrieving additional documentary records in support of the
D
quantum of its claim, and if the action was to be pursued, D
this exercise would be costly.

E
9. The plaintiff has been under great pressure from its Board E
to settle the matter as expeditiously as possible in light of
the costs and time incurred and spent and to be incurred
F and spent. Prior to the plaintiff’s acceptance of the F
Sanctioned Payment, the proceedings had already been
running for over 3 years and many of the plaintiff’s
G G
witnesses have either left the company or about to retire
which increase our litigation risks. Further, in the course
H of seeking discovery from the defendant in early 2012, the H
plaintiff came to know from the defendant’s solicitors that
the defendant had sold its factory in the Mainland China
I back in September 2009. Naturally this caused further I
concerns about the potential recoverability of the judgment
sum from the defendant when the cost of preparing the
J J
action to a full trial continued to surge. I wish to mention
that in view of the prolonged proceedings and escalating
K legal costs, the plaintiff had approached the defendant at K
different stages of the proceedings with a view to exploring
an amicable settlement of the claim (including mediation)
L but to no avail. Against this backdrop, the Board decided L
to accept the Sanctioned Payment although this only
M represented a small portion of the plaintiff’s total claim. M
10. I was advised by the plaintiff’s legal advisors and believe
N that it was open for the defendant to make a payment into N
Court (prior to the Civil Justice Reforms) of a Sanctioned
Payment (post Civil Justice Reforms) and it chose not to do
O so until 3 years after commencement of the action when the O
matter was listed to be tried in the High Court. And the
defendant has all along vigorously defended the claim.
P P
As soon as the defendant made the Sanctioned Payment,
the plaintiff took into consideration all the circumstances of
Q the case including the legal advice given by its legal Q
advisers and litigation risks and decided to accept the
Sanctioned Payment. There is no room for the defendant
R to complain our acceptance of the Sanctioned Payment. R
and its being liable to pay our costs when it could have
S made payment into court as sson as the proceedings S
began.”

T T

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A A

30. I reject Mr Kwok’s contention and hold that the defendant has
B B
not discharged the burden of showing exceptional circumstances to apply
C the Otherwise Proviso. Its application must fail on this ground alone. C

D B2.2 Prior warning D

E 31. For completeness, I will deal with the requirement for prior E

warning shortly, although strictly it is academic.

F F

G 32. Although the defendant did not accept that a prior warning G

that it would apply to invoke the Otherwise Proviso is necessary, it had in

H H
fact given such a warning to the plaintiff by the letter of 29 March 2012.
I I hold that this requirement is met. I

J B3. Conclusion J

K 33. The defendant’s application is dismissed. I make an order K

nisi that the defendant do pay the plaintiff costs, including any costs
L L
reserved, to be taxed if not agreed.
M M

C. SCALE OF COSTS
N N

34. Under Order 62, rule 9(1), where by or under the Rules of the
O O
High Court, costs are paid to any person, that person shall be entitled to his
P taxed costs. And “taxed costs” means costs taxed in accordance with P

Order 62 : see Order 62, rule 1. So the plaintiff is entitled to his taxed
Q Q
costs upon serving the notice of acceptance of the sanctioned payment.
R R
35. There are conflicting first instance authorities as to whether,
S S
when a High Court claim is disposed of by way of acceptance of a
payment into court under the old Order 22, which fell with the District
T T

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A A

Court jurisdiction, the plaintiff would be automatically entitled to taxed

B B
costs on the High Court scale and no other scale;13 or whether the court
C had the discretion to order taxation on the District Court scale.14 C

D 36. For present purposes, I need not come to a definitive view if D

the costs under Order 22, rule 20(1) are automatically taxed on the High
E E
Court scale or the scale is subject to the court’s discretion. It does not
F really matter because assuming that the latter view is correct, the plaintiff F

has satisfied me that it is entitled to have its costs taxed on the High Court
G G
scale.
H H

37. In my view, given the amount of claim which, as I have found,

I I
is not inflated, the complexity of the factual15 and legal issues involved,
J this is plainly a High Court case. It is simply inconceivable that the J

plaintiff could or should have commenced the action in the District Court.
K K
Although the plaintiff did accept the sanctioned payment of HK$100,000,
L it had good commercial reasons to do so. And it had already incurred L

substantial costs up to the acceptance of the sanctioned payment. In the

M M
circumstances, I do not consider it right to exercise my discretion,
N assuming that there is one, to order taxation on the District Court scale. N

O O

P P

Q 13 Q
Wellegant Development Ltd v Fine Telecom Ltd [2007] 2 HKC 427, per Deputy
High Court Judge L Chan (as he then was) at paras 48-49.
R 14 R
Wong Lan & Anor v Hong Chang Construction Transportation Engineering Co Ltd
& Anor [2007] 3 HKC 499, per Fung J at paras 42-44; Sunbeam Investments Ltd v
S
Mannitop Investment Co Ltd [2008] 5 HKC 250, per Burrell J at paras 10-12. S
15
The plaintiff’s case alone involved 3 factual witnesses with 9 witness statements,
5 expert reports including one joint expert report and documentary evidence of over
T 7,000 pages. T

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A A

38. I will therefore allow the plaintiff’s application. I further

B B
make an order nisi that the plaintiff do have its costs against the defendant,
C including all costs reserved, to be taxed if not agreed. C

D D

E E

F F
(J Poon)
G
Judge of the Court of First Instance G
High Court
H H

Mr Kenny C P Lin, instructed by Myra Li & Co, for the plaintiff

I I
Mr Kenneth Kwok SC leading Mr Maurice Ng, instructed by Li, Chow &
J Company, for the defendant J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

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