YIP WUN HONG v. CHEUNG KWONG SANG t/a INTERIOR CONTRACT INTERNATIONAL AND FURNITURE HOUSE AND ANOTHER

1985, No.A5678

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REVIEW OF TAXATON

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    The 1st Defendant applied for a Review of Taxation on 26th May 1992 in respect of four categories of items of costs which can be grouped under 2 headings, namely:-

A. Counsel's fees in respect of:

1. Meetings;

2. Written Opinion and Advice;

3. Drafting, Brief & Refreshers.

B. Solicitor's hourly rate of costs in respect of:

    4. Preparation of trial and the general care and conduct of the case.

    In this case the Plaintiff was injured in an industrial accident on 25.7.83 and suffered 100% permanent disability as he was rendered completely paraplegic. On the 2nd day of the trial, the action was settled and by consent Mortimer, J. on 11.7.91 gave judgment for the Plaintiff against the 1st Defendant in the sum of $4.15 million in addition to the E.C.C. award together with costs.

A.    Counsel Fees

1. Meeting and Conferences

    The 1st Defendant, who is the paying party of the Plaintiff's Bill of Costs, objected to excessive number of conferences with counsel especially leading counsel at short time intervals - a total of 14 meetings with Mr. Bokhary, Q.C. during a period of 14 months.

    I must point out at the outset that this case involved disastrous injuries to the Plaintiff in 1983 and when counsel were instructed in mid-1985, the quantum involved was not quite well settled. It is clear from the papers before me (including files of the Plaintiff's solicitors) all lawyers involved gave top priority to this case. A number of complexities were involved especially under quantum of damages. The importance they attached to this case was quite clear from the industrious and prompt actions taken as appeared from the papers. Since the Plaintiff had been rendered immobile, home visits were necessary.

     After junior counsel, Mrs J. Barnes, paid a home visit on 6.5.85 for 2 hours, the whole team of lawyers including the aforesaid leading counsel paid another home visit on 12.11.87 for 6 hours. Thereafter leading counsel had 10 conferences alone with solicitor charging at about $3,000 per hour which was, in my view, on the low side and did not in any way reflect the normal rate charged by him.

    In other words, the services rendered to the Plaintiff is very impressive indeed. This high standard of care and conduct is just what should be expected from a lawyer. One cannot therefore turn around and criticize their efforts in this disastrous case when one is asked to pay for their services. After a careful and thorough scrutiny of the conference notes available, I accept that they are necessary and proper.

    By 1989, Mr. Bokhary, Q.C. was appointed to the bench rendering a change of leading counsel necessary. Mr. Kaplan, Q.C. took over the case. Thereafter both Mrs. Barnes and Mr.Kaplan were appointed to the bench and Mr. Sarony took over the case from them in 1991 with Mr. Meyrick Wong acting as an additional junior to him. The 1st Defendant complained, in the second place, that the duplication caused by changes of Counsel had not been adequately compensated by my reduction at the taxation. Those fees of $1,000, $25,000 and $6,000 of Mrs Barnes, Mr Kaplan, Q.C. and Mr Sarony were reduced to half as half of those conferences were concerned with advice on evidence on damages which had not been given before.

    Upon a closer scrutiny of those conferences, I could not find anything otherwise and would therefore maintain my original ruling. In other words, I find half of those conferences were in any event necessary and proper.

    Thirdly, the 1st Defendant submitted that there was no justification, on a party and party basis, for counsel to interview the Plaintiff at his residence or to the extent of one by Mrs Barnes alone, one by Mr. Bokhary Q.C. alone, and one by both of them.

    The Plaintiff was actually rendered immobile by the negligent acts of the Defendants. It was just proper and necessary for lawyers to interview him at his home. In any event the fees charged by each one of them were only their normal fees, apart from the low concessionary rate charged by Mr. Bokhary Q.C. on certain occasions. I do not find the 1st Defendant's submission in this respect justified at all.

    In the end I must re-emphasize that the high standard of care and conduct exhibited by this team of lawyers were entirely proper and necessary as would be expected of them. The 1st Defendant's first point of objection is accordingly dismissed.

2. Counsel's Advices and Opinion

   The 1st Defendant objected to six Advices given solely by Mr. Bokhary Q.C., one jointly with Mrs Barnes, on the ground that they were excessive and were given at short time interval.

    All these advices were submitted for my scrutiny. They were careful, prompt and thorough. One could not criticize solicitors for relying on counsel in this very case involving a number of complexities. They just arose in the ordinary course of this litigation. I could not find anything improper or unnecessary in anyone of them.

    Further and again, it was objected that two further Advices by Mr. Sarony on quantum in June 91 should be reduced to account for duplication of advice previously given by Mr. Bokhary, Q.C. One must however remember that those advices on quantum given earlier at the preliminary stages involved collection of data and opinion from experts. Those advices given by Mr. Sarony in 1991 when the trial date drew near and after the Defendants had made payment into court, involved an overall assessment of those data and opinion, and those authorities decided then and available to him. It was particularly difficult and different as Mr. Sarony advised against accepting a lesser sum paid into Court. I found that such advices would in any event be necessary should Mr. Bokhary, Q.C. continue to act in the case. Accordingly the 1st Defendant's second objection is dismissed.

3. Miscellaneous Works by Counsel (Drafting, Brief and refreshers)

    The 1st Defendant objected to the "luxurious" items of having Counsel to settle the List of Documents, Hearsay Notice, and various letters when, the 1st Defendant submitted, these were clearly solicitor's work.

    I noticed that in one List of Documents, junior counsel re-drafted the same with additions to both Part I & Part II (i.e. privileged documents) which items, as advised, were disclosed as to their existence. When documents were settled by leading counsel, only junior counsel's rate of charges was imposed. In one important letter, leading counsel drafted the entire letter.

    In the end, I find each and every item was proper and necessary. I do not find anyone of them as, being "luxurious" at all.

    It was further submitted that Mr. Sarony's and Mr. Meyrick Wong's Brief fees (of $70,000 and $30,000) and one unused refreshers (of $20,000 and $10,000) were excessive and the Plaintiff should be entitled to one set of Counsel's fees only as anything incurred by change of Counsel would not be proper on party and party basis.

    I noticed Mr. M. Ozario for the 1st Defendant charged $50,000. His standing at the Bar is between Mr. Sarony and Mr. M. Wong. The rates of Brief and Refresher charged by them were only standard rates charged according to their seniority at the Bar and the complexities involved in this very case. They are, in my view, proper.

    In this case, it is justified to involve 2 junior counsel when both leading counsel were not available at the trial. I do not find any duplication of works by the change of counsel. In fact if the original team of counsel was available, they would charge at much higher rates of fees. Both sets of fees of Mr. Sarony and Mr. M. Wong would therefore be allowed upon review as originally taxed.

B. Solicitor's Works

4. Preparation of trial

    Lastly, the 1st Defendant contended that given the heavy reliance on Counsel, the case could have been handled by a much less senior solicitor and on that basis, the solicitor's hourly rates should be more substantially reduced than the deduction of $100/hour from the maximum hourly rate charged by Mr. E. Li, being a partner of the firm, admitted in 1980. It was submitted that his hourly rate should be cut by half as he was discharging his duties only as a clerk.

    This kind of allegation is quite common one way or the other. On one hand, a paying party sometimes alleged that a solicitor only acted like a messenger or postman in relating pieces of information between various parties. On the other hand, there might be complaints, on rarer occasions, by clients especially those on legal aid, that a solicitor should instruct counsel on some important points or issues rather than handling them himself.

    I do agree that on principle, if a solicitor only acted as a clerk, he could only charge a clerk's rate. However, as I have said, this is by no means a run-of-the mills case. Many complexities were involved. The quantum was enormous. It was justified for a partner to handle the case as assigned by the Director of Legal Aid. Once assigned he owed a duty to his client to discharge his function properly. He could be criticized on the other hand for failure to refer matter to counsel. A solicitor could be adjudged negligent for such a failure to refer the case or issue. He worked, as revealed from his files, closely with counsel. I do not find him working as a clerk. On the contrary, I found him working diligently and industriously in this very unfortunate case. The criticism laid by the 1st Defendant is not justified.

    In some areas where a clerk could be engaged (which of course would in the end involve instructing the same and receiving report therefrom) I have already taken this factor into consideration by adjusting his hourly rate by $100/hour less. This also reflected his seniority from his admission in 1980 when this litigation proceeded from 1985 to 1991. In the end, the 1st Defendant's submission in this respect is not accepted.

Conclusion

    These 4 points of objection upon review are not accepted and the application for review is accordingly dismissed. I shall hear parties on the question of costs of this Review.