DBS BANK (HONG KONG) LTD v. SIT PAN JIT

HCA 382/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 382 OF 2009

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DECISION ON COSTS

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1. In my Decision delivered on 9 November 2012 on the plaintiff’s application to strike out certain parts of the defendant’s expert report, I had made an order nisi that the plaintiff should pay 60% of the defendant’s costs to the defendant (with counsel’s certificate).  There has not been application for varying the order nisi, which has become absolute.  The summary assessment of the costs under Order 62 rule 9A will be on paper without a hearing.

2. Pursuant to the order, the defendant has submitted the schedule of costs, which comprises of section A, the solicitors’ profit costs of $109,350.00 and section B, the disbursements, including the counsel’s fees of $38,000.00, totally $147,450.00, 60% of which is $88,470.00.

3. The plaintiff has also submitted the schedule of objections.  The objections are mainly on section A, the solicitors’ profit costs.  No objection has been raised on section B.  Rightly so.

4. I shall adopt the broad-brush approach, following the guidance set out by the Court of Appeal in Poon Shu Fan v. Wong Tin Yan and Leung Yuk Lin CACV 81/2012 delivered by A. Cheung, CJHC on 9 October 2012 at paragraphs 12-18, in particular: the broad-brush approach at §12; the two-stage approach in England, as explained by Lord Woolf C.J. in Lownds v. Home Office [2002] 1 WLR 2450, and at §18, the Chief Judge said:

“… The bottomline, it should be added, is that costs are in the discretion of the court but that discretion, though wide, must still be exercised in a judicial manner.”

5. In exercising my discretion, I will also bear in mind the factors as set out in Order 62 rule 5.

6. The nature of the expert evidence for the trial is of course relevant and, in my view, it will play a very important part in the determination of the issues in dispute.  It is reasonable for the parties to treat this application as a very important application for the preparation for the trial.

7. I have placed considerable weight to the plaintiff’s objections to the following issues:

a.  Duplication of work by the solicitor and the trainee;

b.  Time required for preparation for the 3-minute chamber hearing;

c.  Time for preparation for substantive hearing, in particular, time for considering plaintiff’s authorities and defendant’s own authorities;

d.  Time for considering my Decision.

8. On a broad-brush basis, I allow the defendant’s profit costs to be $70,000.00, added by disbursements of $38,100 = $108,100, 60% of which is $64,860.00.

9. The defendant’s costs are summarily assessed at $64,860.00, which is to be paid by the plaintiff within 14 days from the date of this Decision.