Lexis Insights

Legal News, Views, and Insights from LexisNexis Hong Kong

O.22, r.10(1) RHC states that a sanctioned payment may not be withdrawn or diminished before the expiry of 28 days from the date the sanctioned payment is made unless the Court grants leave to withdraw or diminish it.

On 17 January 2018, the Court of First Instance handed down its judgment dealing with the application and interpretation of O.22, r.10(1) RHC in a personal injury case, i.e. Lam Wai Ling Mayme v Hutchison Telecommunications (Hong Kong) Ltd [2018] HKCU 195, [2018] HKCFI 92. In that case, the learned Master granted leave to the defendant pursuant to O.22, r.10(1) RHC to withdraw a sanctioned payment before the expiry of 28 days. However, CFI allowed the appeal and ordered that the defendant’s summons for leave to withdraw the sanctioned payment be dismissed.

The issue before the court was whether there has been such a change of circumstances as would render it unjust to allow the plaintiff to benefit from the sanctioned payment. The Hon. Mr Justice Bharwaney referred to Hong Kong Civil Court Practice 2017 for its useful summary of the principles and case law on O.22 r.10(1) RHC:-

“Where leave is required to withdraw, amend or accept a sanctioned payment under Order 22 rule 10, the court is guided by authorities under the previous Order 22. In Tsang Kam Ming v Artchamp Investment Ltd [2002] 2 HKC 693, 696B-E, referring to Cumper v Pothecary [1941] 2 KB 58 (CA) it was held that the power to grant leave to withdraw is discretionary and the defendant must satisfy the court there are good reasons. Good reasons include a change of circumstances increasing the prospects of the defence, or decreasing the likely quantum of damages … In Wong Pan v Eastern Pacific Circuits (HK) Ltd [2007] HKCU 408 (DCPI 1283/2004; Judge CB Chan; 16.11.2005) a defendant was granted leave to withdraw a payment into court where subsequently discovered documents gave rise to a new defence.

…

the court distilled the applicable principles from Cumper … and set them out in the following words:

• (i)        The discretion of the court is unfettered;
• (ii)       Such discretion is to be exercised judicially;
• (iii)      The main criterion is whether there has been a change of circumstances as would render it unjust to allow the offeree to benefit from the sanctioned offer/payment … For instance, the discovery of further evidence, which puts a wholly different complexion on the case, or a change in the legal outlook brought about by a new judicial decision;
• (iv)      Delay in making the application is a relevant consideration;
• (v)       The substantiality of the offer to accept is a relevant consideration;
• (vi)      The conduct of the applicant is a relevant consideration;
• (vii)     The court will not, in the interlocutory application, conduct a mini-trial of the issues raised;
• (viii)    After taking into account all the relevant factors, the court will be guided by the overriding consideration to do justice between the parties.”

Find out more in:

1. Hong Kong Civil Court Practice 2018
2. Civil Procedure in Hong Kong – Sixth Edition
3. Butterworths Hong Kong Personal Injury Service
4. Butterworths Hong Kong Employee Compensation Handbook – Fifth Edition