XCHRX CHOY BING WING t/a BING CHOY & ASSOCIATES v. THE HONGKONG & SHANGHAI HOTELS, LTD.

CACV 151/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 151 OF 1998

(ON APPEAL FROM HCCT NO. 8 OF 1992)

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DECISION ON REVIEW OF TAXATION

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The taxation

1. There was an appeal by the defendant against an order for costs made by Master Cannon on 14 April 1998 subsequent to the assessment of the plaintiff's quantum meruit claim which had been heard by another Master. The Court of Appeal dismissed the defendant's appeal and it ordered that the defendant should pay the costs of the plaintiff, such costs should be taxed if not agreed. The taxation of the plaintiff's costs is on a party and party basis. Pursuant to that order, the plaintiff's bill was taxed on 19th May 2000.

Application for review

2. The plaintiff is not satisfied with the taxation. By a summons filed on 2nd June 2000, the plaintiff applied for a review under Order 62 rule 33 of the Rules of the High Court (RCH). The application for review is in respect of the hourly rate of the plaintiff as a litigant in person on the ground that the hourly rate as taxed has not truly reflected the plaintiff's pecuniary loss, which the plaintiff has suffered. However, the plaintiff in his affirmation in support of his application had also raised the disbursements paid to Mr. Hubert Woo, the expert as another item for review. The defendant had raised no objection to such additional item. I had also considered that additional item. After the hearing, I decided that I affirmed my previous decisions in respect of the hourly rate for the plaintiff and the hourly rate for the expert, Mr. Hubert Woo. The plaintiff confirmed that written reasons for my decisions would be required. The followings are the reasons for my decisions.

The grounds for review

3. The plaintiff has stated his reasons for the review in his affirmation. They can be summarized as:

1. The plaintiff's previous charge for work for the defendant at $700 an hour is below the normal hourly rate. He had charged such a low rate because of his special personal relationship with the defendant and there was hope of securing further substantial business from the defendant. With his experience of 30 years, according to the fee schedule set up by the Government and generally accepted by the engineering field, he is entitled to charge $4000 per hour.

2. He has lost a number of businesses because of those proceedings.

3. As to Mr. Woo's fee, the plaintiff simply said that to allow his fees at an hourly rate of HK$2,000 for 17 hours of work had undervalued his services provided. At the hearing, Mr. Kwan, acting for the plaintiff submitted that he only challenged the hourly rate of Mr. Woo, which he argued it should be marked up to $4000. He did not challenge the time.

Oppositions from the defendant

4. Miss E. Tang, acting for the defendant, put in her written submissions in support of my original decisions on the hourly rate of the plaintiff and that of Mr. Woo. She asked me to affirm my original decisions.

Reasons for decisions

5. As the plaintiff is a litigant in person, for the taxation of his costs, Order 62 rule 28A of the RHC is applicable. Having considered the submissions from the parties, I was satisfied that the plaintiff had suffered pecuniary loss in the preparation and the conduct of the litigation. According to Order 62 rule 28A (2), the amount allowed shall be such sum as the court thinks fit not exceeding two-thirds of the sum which in my opinion would have been allowed in respect of that item if the plaintiff had been represented by a solicitor. The basic and overriding principle for taxation of costs inter parties is the indemnity principle. The receiving party cannot recover a sum in excess of his loss. (Gundry v Sainsbury [1910]1 KB 645, followed in AG v Leung Ka Kit MA No 502 of 1996, Sear J (unreported))

6. As to the hourly rate for the plaintiff, in the taxation, I awarded him the average hourly rate of $1,295. This amount was arrived at by reference to a bill dated 1/5/89 issued by the plaintiff to the defendant. In this bill the plaintiff quoted his professional service on hourly rate of $700. The bill covers the period from March 1996 to April 1998. Allowing an annual inflation rate of 8% (as proposed by the defendant and I accepted), the hourly rate for 1996 was $1,199; for 1997 was $1,295 and for 1998 was $1,399. I accepted $1,295 as the average hourly rate for the whole period.

7. In the plaintiff's application for a review, the plaintiff put in the evidence of his previous hourly rate of charge as an authorized person. In his bill issued to Peak Tramways Co. Ltd. dated 13/7/1982, his hourly rate was $800. In his bill issued to HK & Shanghai Hotel Ltd. dated 22/4/1987, his hourly rate was $700. In his third bill issued to the same company dated 15/6/1988, his hourly rate was $800. These bills show that the plaintiff's hourly rates of professional charge were similar to his rate of charge in 1989. I see no ground for reviewing his hourly rate of professional charge.

8. As to the plaintiff's allegation of loss of business opportunity amounting to $7.875 million, I am of the view that this is too remote for me to take into consideration. There is no evidence to show that he would be awarded the contracts for the projects. The plaintiff could have engaged a solicitor to act for him in the proceedings, so that he might take up the business opportunities. He chose to conduct the case himself. I do not think it appropriate to consider his loss of business opportunity as his loss.

9. As to the hourly rate for the expert, Mr. Hubert Woo, I awarded him the hourly rate of $2,000, which I used for the assessment of his time spent on his work for this matter. The plaintiff did not dispute the time assessed. He only disputed the hourly rate awarded to the expert. I came to this figure after I had read through his expert report dated 9th July 1996. I had also compared his experience as an engineer to that of the plaintiff. Mr. Woo graduated in 1964 with Bachelor of Science Degree in Civil Engineering from the University of Hong Kong (p.1 of the report). The plaintiff was a design engineer in Maunsell Consultants Asia in 1971 (p.3 of his statement). But since 1994, Mr. Woo changed his profession from being an engineer to a barrister (p.2 of the report). However, it seems to me that at the time of giving expert opinion, Mr. Woo had more experience as an engineer than the plaintiff. Considering the expert evidence Mr. Woo was required to give as can be seen from his report, it seemed that what the plaintiff required Mr. Woo was his expertise on engineering. I therefore considered Mr. Woo's fee on the basis that he was an expert on engineering. In the absence of any evidence what the proper charge it should be for such an expert from the plaintiff, the burden of proof being on the plaintiff as the receiving party, I used the average hourly rate for the plaintiff as the starting point. I had also taken into consideration that Mr. Woo was a barrister in his private practice and with his seniority as a barrister, he would be able to charge up to $2500-$2800 per hour. I decided that his hourly rate should be $2,000.

10. For the reasons above, I affirmed my original decisions and I ordered the plaintiff to pay costs of this application to the defendant.