SLA nee S v. HKL

FCMC 7500/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 7500 OF 2010

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DECISION

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Application

1.  By a summons dated 16 June 2015, the petitioner applies for an order that the taxation of the petitioner’s bill of costs by the learned master on 12 May 2015, and reviewed on 29 May 2015 (“the Review Decision”), be reviewed.

2.  In the taxation, the learned master disallowed the charging rate of the petitioner’s fee earner, Ms Allison, at $2,300 per hour but only allowed the charging rate at $1,650 per hour.

3.  Mr Glynn, appearing for the petitioner, submits that the learned master has erred in failing to take into account the experience of Ms Allison in a foreign jurisdiction. Further, he submits that the guideline of fees issued by the Law Society in 1997 (“the Guideline”) is not binding. He submits that Ms Allison’s rate should be at least $2,000 per hour.

4.  Ms Lee, appearing for the Legal Aid Department, submits that the learned master’s decision should be upheld because even if the learned master took into account of the overseas experience of Ms Allison, the charging rate at $1,650 per hour is an appropriate rate. To ensure consistency, she submits that the learned master has not erred in not departing from the Guideline.

Discussion

5.  I agree that overseas experience of a solicitor could be taken into account for the purpose of assessing the appropriate hourly rate. Mr Glynn refers me to Kennedy v Cheng Kelly (No 2) (2011) 14 HKCFAR 713.  In that case, for the purpose of assessing the appropriate hourly rate of a solicitor who was qualified in Hong Kong in 2002 but was previously admitted in New Zealand in 1999, Registrar Kwang had this to say :-

“I do not accept the Respondents’ argument that the Court should only take into account his Hong Kong experience and ignore his overseas experience. His overseas experience is a relevant one and would contribute to his effective management and preparation of the appeal. The Respondents had no positive evidence to prove the otherwise. For this case, the Court is entitled to take into account of his overall seniority and experience in assessing his appropriate hourly rate.” (paragraph 44)

6.  In that case, Registrar Kwang further pointed out that the solicitor had a due role as the main case handler performing the role of the instructing solicitor and the supervising partner when work was delegated to his associates. In addition, the solicitor also acted as a “quasi junior counsel” to assist the Senior Counsel and later the London Silk.

7.  In the present case, I agree that the experience of Ms Allison in another jurisdiction should be taken into account. However, that is only one of the relevant matters for consideration. Further, I do not think that in counting the experience of Ms Allison, one can simply add her overseas years of experience to her years of experience after admission in Hong Kong.

8.  According to a “summary of Miss Allison’s years of experience” prepared by Mr Glynn, Ms Allison was admitted as a solicitor in the Supreme Court of Western Australia on 5 March 2003. She had a total of 1 year and 3 months experience in Australia as a solicitor. Then she came to Hong Kong. From January to November 2006, she worked as a foreign registered lawyer in a solicitors firm. Then she joined Hampton, Winter & Glynn (“HWG”) as a foreign registered lawyer for 1 year and 3 months. On 19 April 2008, she was admitted as a solicitor in Hong Kong. She resumed working in HWG as a paralegal from 2 August 2010 to 3 October 2010 and then started to practice as a solicitor on 4 October 2010. She handled this case from January 2012 to September 2013.

9.  After a close scrutiny of the working experience of Ms Allison, I find that after her admission in Hong Kong as a solicitor, she did not start her practice. It was not until 2 August 2010 that she joined HGW in the capacity of a paralegal. On 4 October 2010, her position in HGW became solicitor. In other words, after her admission in Hong Kong, she did not start to practice as a solicitor for over 2 years.

10.  In this case, the date of the legal aid certificate was awarded to the petitioner on 20 January 2012, ie when Ms Allison started handling this case for the legal aid. Therefore, at that juncture, if I count from 2 August 2010, Ms Allison had only 1 year and 6 months working experience since her admission in Hong Kong.

11.  Her total years of experience as a solicitor in Australia was 1 year and 3 months. Her total years of experience as a foreign registered lawyer in Hong Kong was 2 years and 2 months. This case was handled by Ms Allison from 20 January 2012 to 27 September 2013. After taking all her experience into account, I find that, for the purpose of taxation, it is appropriate to categorize her as having 2 to 4 years’ of practice. Although the learned master did not take into account of Ms Allison’s overseas experience, he did in fact say at paragraph 7 of the Review Decision that :-

“Ms Allison was admitted in Hong Kong in April 2008, that would be four years’ experience when she handled the case in 2012, and HK$1,650 is the upper ceiling of the category of two to four years’ experience.”

12.  On one hand, I think the learned master should have taken into account Ms Allison’s overseas experience. On the other hand, the learned master was too generous. He did not take into account the fact that Ms Allison did not start her practice for over 2 years after admission. In the circumstance, the end result is that the learned master was correct in categorizing Ms Allison as having 2 to 4 years’ experience.

13.  According to the Guideline, her hourly rate should be ranged from $1,350 to $1,650.

14.  Mr Glynn submits that the Guideline is not binding. Registrar Kwang in Kennedy v Cheng Kelly (No 2), (supra), had this to say :-

“Even though it is accepted that the 1997 rates do not bind the taxing masters as a strait-jacket, in my experience, they still form a useful guideline or as a starting point for the taxing masters to consider at taxations conducted at different levels of courts. In appropriate cases, the rates can be adjusted upwards or downwards according to the special circumstances of the case.” (paragraph 35)

15.  I agree that although the Guideline is not binding, it is a useful guideline. In the present case, I do not find any special circumstances justified for an upward or downward adjustment. At most, the complexity of the case is a matter to allow Ms Allison’s rate be set at the upper limit within the range of 2 to 4 years’ experience. I find that $1,650 is an appropriate rate.

16.  The learned master was correct in paragraph 8 of the Review Decision when he decided that unless there are good reasons, the court should not depart from the Guideline so as to ensure the consistency of the routine taxation case.

Conclusion

17.  After taking all the circumstance into account, I decide that an appropriate hourly rate of Ms Allison should be $1,650 per hour. The learned master’s decision was not wrong. This application is therefore dismissed.

18.  I make an order nisi that the petitioner do pay costs of this application to the Legal Aid Department. This order nisi for costs becomes absolute 14 days after the date hereof unless any party applies to the court for varying the order.

19.  Both parties ask me to assess the costs summarily. I agree. As Ms Lee has already given a copy of the statement of costs for summary assessment to this court and to Mr Glynn, the petitioner can file a list of objection within 21 days from today. Costs will then be assessed summarily.