PORTRIC CO LTD v. GOLDEN DRAGON ENGINEERING CO LTD

Review of Taxation

Requirement for counsel's brief fee to be marked on his brief. The Taxing Master should adhere to the provisions of Part II of Ordinance 62 and should not disallow counsel's fee on the basis of any Practice Direction or Code of Conduct of the Governing Bodies of the resprective branches of the Profession.

In this case I ordered that the 3 items which had been disallowed on the Bill should be reinstated.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REVIEW OF TAXATI0N

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1. At the taxation of the defendants bill of costs the Master disallowed three items which were disbursements in the defendants bill. The items were counsel's brief fee on an Order 14 application counsel's brief fee at the hearing and counsel's refresher. The only point at issue was that the taxing master disallowed these items as it is common ground that a brief fee was not marked on either of the briefs I have above referred to.

2. I am informed by Mr. Chu who represents the defendants that there is concern within the legal profession at the present policy which is adopted by taxing masters of disallowing counsel's fees unless counsel's brief fee is marked on the brief. It was for this reason that he had seen fit to apply to a judge for a review to be undertaken of the bill so that a determination of this issue could be made.

3. I adjourned the initial hearing and requested the taxing master, Master Clay, to give his reasons for disallowing these items. Most helpfully Master Clay has given his reasons. Master Clay expresses concern that if brief fees are not marked on briefs no satisfactory controls can be exercised over fees which are charged by counsel and it can then easily become possible for counsel to charge in effect contingency fees. With respect I can sympathize with the sentiments which are expressed by Master Clay. It is also relevant to have regard to the provisions contained in the "Code of Conduct for the Bar of Hong Kong" effective from 21st January 1983 which I understand is presently binding upon barristers. Rule 73(a) reads as follows:

"A barrister must ensure that on every occasion when he appears before a court he has in his possession a back sheet bearing the following information (1) the name of the case (2) the name of the barrister (3) the name of the instructing solicitors (4) the court and (5) (except for prosecution briefs, briefs on behalf of the Crown and briefs in interlocutory matters), the fees or "legal aid" or "no feel" as appropriate."

There is also a Practice Direction issued by the Law Society on the 10th February 1979 which requires solicitors to ensure that brief fees are marked on the back-sheet of briefs.

4. There appears to be little doubt that the governing bodies of both branches of the profession are anxious to ensure that their members do agree brief fees at the earliest practicable time and that there should not be scope for fees to be charged on a contingency basis. It must, however, be borne in mind that the Practice Direction and the Code of Conduct I have referred to are for the guidance of members of the profession and do not form part of the laws of Hong Kong.

5. I will now consider the legal position. Fees payable to counsel are dealt with in Part II of Order 62 of the rules of the Supreme Court.  Rule 2(1) reads as follows:-

"2.    (1)     Except in the case of taxation under the Legal Aid Ordinance and taxations of fees payable by the Crown, no fee to counsel shall be allowed unless -

(a)	before taxation its amount has been agreed by the solicitor instructing counsel; and
(b)	before the taxing master issues his certificate a receipt for the fees signed by counsel is produced to him."

This rule is taken from Appendix II of Order 62 of the English rules. There is a note in the fourth edition of Butterworth on Costs on the English Rule. The note states:

"In theory this has always been the practice, but in recent years it has become common for fees not to be marked when papers and briefs have been delivered. The onus is on the solicitor to agree fees with counsel before they appear in the bill of costs, which means that the solicitor has accepted the fee as such. It will of course be noted that fees incurred under the Legal Aid Act 1974 are excepted from this provision.''

6. There is no doubt in my mind that there is no requirement at law for counsel's brief fee to be marked on his brief.  I do not think that it is any part of the function of a taxing master to attempt to impose upon either counsel or solicitors a requirement that they should comply with the respective Codes of their qoverning bodies. It is inappropriate that they should attempt to do so. Their duty is simply to ensure whether the rules applicable to the taxation have been complied with. There is no requirement under Rule 2(1) of Part II of Order 62 to the effect that counsel's brief should be marked on the back sheet of the brief.

7. In view of the concern which has been expressed by Master Clay in his reasons on the review it may be the case that there is a fairly widespread practice of counsel's fees being agreed otherwise then in accordance with the Barristers Code of Conduct and the Practice Direction of the Law Society. If, indeed, this be the case it may well be appropriate for the Supreme Court Rules Committee to give consideration to modifying or amending Order 62 of the Rules of the Supreme Court so as to include provisions to enable a taxing master to disallow counsel's fee if there has been non-complicance with the requirement for making the brief. It may though be the case that the taxing master is not the person who is best qualified to determine whether there has been a breach of this requirement and in any event it would probably be necessary to repose in him a measure of discretion so as to enable him to adopt a flexible approach to the matter if it is decided that he should have such authority. As I indicated at the hearing the three items marked off will be reinstated in their original amounts. The defendants will have the costs of this review.