HOSSAIN MD FARUK v. KHAN, FAQERGUL formerly known as KHAN, WAJID t/a PESHAWAR AUTO DISMENTLING & GENERAL TRADING CO

CACV 156/2022, [2024] HKCA 745

On Appeal From [2022] HKDC 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2022

(ON APPEAL FROM DCEC NO 1221 OF 2017)

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DECISION ON FURTHER VARIATION
OF ASSESSMENT OF COSTS

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Hon Au JA (giving the Decision on Further Variation of Assessment of Costs of the Court):

1.  By way of its Decision on Variation of Assessment of Costs dated 28 May 2024[1] (“the Decision”), this court accepted the applicant’s application by way of letter dated 13 May 2024 (“the Applicant’s Variation Application”)  and varied the assessment of the applicant’s costs of the appeal on a nisi basis from HK$150,000 to HK$210,000 (including HK$150,000 as counsel’s fee)  (“the Nisi Costs Assessment”)  for the reasons set out therein.

2.  At [7] of the Decision, it is stated that the Nisi Costs Assessment shall become absolute unless the respondent applies to vary it by summons within 14 days of the Decision.

3.  On 31 May 2024, the court received the respondent’s letter applying to vary the Nisi Costs Assessment to HK$65,000 for the following reasons:

(1)  The appeal was simple in nature, and it is not reasonable for the applicant to instruct new counsel of such seniority (counsel was called in 1982)  to act for him in it.

(2)  Further, the applicant’s handling solicitor was already involved in the trial and thus familiar with the case.

(3)  In the premises, with the assistance of the handling solicitor, a reasonable brief fee for counsel should be no more than HK$35,000 and a reasonable fee for solicitors should be HK$30,000, making the total costs to be HK$65,000.

4.  The respondent further submits that, as stated at [38] of this court’s main judgment dated 26 April 2024[2] (“the Main Judgment”), the Applicant’s Variation Application should have been made by summons instead of letter.

5.  We do not accept the respondent’s grounds for varying the Nisi Costs Assessment:

(1)  The applicant has been on legal aid, and the Director of Legal Aid (“the Director”)  had assigned the new counsel to act for the applicant in the appeal.  There is nothing before us to show that it was unreasonable for the Director to decide to assign another counsel of such experience to appear before the Court of Appeal.

(2)  As to the solicitors’ costs, for the reasons set out in [35] of the Main Judgment and [6] of the Decision, we had already taken into account the fact that the same firm of solicitors was involved in the trial before the assessing the sum down to HK$60,000 as what we regarded to be reasonable.

6.  Finally, as to the complaint about the form of the applicant’s application to vary the assessment, we are prepared to waive this procedural irregularity as this would not cause any prejudice to the respondent.  In particular, it is pertinent to note that the respondent has also made the present variation application by letter instead of summons as stated at [7] of the Decision.

7.  We therefore reject the respondent’s variation application, and the Nisi Costs assessment shall hereby become absolute.  As the applicant has made no submissions in response to this application, we further make no order as to costs in this application.