MA KA LAI v. KATAFYGIOTIS LAMPROS

HCPI 982/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 982 OF 2001

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A S S E S S M E N T  O F  C O S T S

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1. This was a straightforward claim for damages on behalf of a 16 years old girl who was about 12^1/2 years of age at the time of the traffic accident in which she sustained principally a fracture of her right tibia. She did not lose consciousness, nor were there any facial injuries. Although naturally it was a frightening and painful experience she was indeed fortunate to escape so lightly. The low speed of the car which struck her was a material factor. Her leg has progressed well and although some discomfort persists, this will resolve itself. She may be left with some mild angulation; it is currently only 6o to the lateral aspect.

2. This case came before me as a trial, on liability only, on 19 December 2002, four years after the accident. Why it has taken four years to proceed to this limited final stage has not been satisfactorily explained. The infant Plaintiff is legally aided, the certificate having been granted in September 1999 the Writ was not issued until November 2001, and the Department of Legal Aid may well wish to note this fact and a number of others apparent in this written decision.

3. When the case was called on Counsel for the Plaintiff asked for a short period of time in which to consider some matter and discuss with Counsel for the Defendant.

4. The ultimate outcome was that Counsel for the Plaintiff informed me that he wished to accept the payment into court. I was of course unaware of the fact of any payment into court. In effect he was asking me to approve a compromise of this infant's action on that basis but I was not told of any agreement in respect of costs.

5. It transpired that all this was unknown to Counsel for the Defendant. He had not agreed to the Plaintiff accepting the money paid into court ― I was told that the total sum was $280,000, the last amount being paid in on 12 December 2002, one week before trial. Furthermore there had been no agreement as to costs.

6. The situation was unusual, or, at least in my experience was unusual. The lack of any agreement between the parties was an obvious obstacle to approval of what the Plaintiff's Counsel sought. The hearing was to deal with liability only and so I assumed that the medical position of the Plaintiff was uncertain. It now appeared that there was no such uncertainty and it was implicitly being suggested that quantification of the true value of her claim could now proceed.

7. Despite this there was no up-to-date medical report from an orthopaedic consultant (it was over two years since he had examined her). There was a report from a clinical psychologist, Mrs Chung Ng Lai-kuen, dated 17 October 2002. An eminently straightforward report, it indicates some emotional upset following the accident and a mild degree of Post-Traumatic Stress Disorder which has subsided. It was surprising to find that two years ago the Plaintiff had been referred to Dr Timothy Law a neuropsychologist. This was premature and in any event unnecessary. A sixteen-page report had resulted.

8. Having seen the Plaintiff, I was however satisfied on all the available information that there was no reason to postpone my evaluation for further reports.

9. Mr Kumar Ramanathan for the Defendant had adopted a sympathetic and professional approach to the situation which presented itself and encouraged a pragmatic solution. He had however entirely reasonable concerns and arguments on the question of costs. The sum in court had been offered in correspondence before trial costs had been incurred. For some reason, the Plaintiff's solicitors had rejected this out of hand in writing:

"Due to the extremely low offer, our Mr Chung finds it unnecessary to talk your Miss Kwan on settlement."

The writer had not assessed the situation well. As will appear shortly the Plaintiff's Counsel was justifiably eager to encourage the Plaintiff to accept the payment into court and salvage the position as best he could.

10. In the circumstances of the accident, it was clear that the only aspect on which the Defendant could be faulted was his failure to sound his horn when he saw the Plaintiff at the road edge looking away from him and, as he acknowledged in his statement to the Police Officer, likely to cross the road. Although his speed, lookout and position on the road indicated care and concern, he ought to have sounded his horn to warn or attract the attention of the Plaintiff. That is, after all, what a horn is for. But I made it clear that was the only respect in which he was negligent.

11. The Plaintiff was then of an age at which, in the circumstances of the case, she was capable of being contributorily negligent. She knew the risks, she was looking in the wrong direction, she never saw the Defendant's vehicle, and although I am satisfied she rushed into its path, she was saying throughout that she remained at the side of the road and that the Defendant drove into her. The nature of the road and the traffic on it made it extremely difficult for an adult to cross it safely, let alone a child. The authorities failed to provide any safe crossing for pedestrians.

12. In all these circumstances the assessment of the Plaintiff's Counsel that this was a 50/50 case on liability was somewhat optimistic. The payment into court was therefore a generous one on liability and possibly on quantum, but it was a very sound tactical payment in. I had no difficulty in approving such a settlement as being in the infant Plaintiff's interest. As I pointed out, had this proceeded to trial, it would have been disastrous for the Plaintiff.

13. The burning issue of costs remained. Mr Ramanathan's argument that they should be on the District Court scale was a sound one. In view of the date of the last payment in it would be wrong for the Plaintiff to have the costs of a trial and therefore a proper order would allow Plaintiff's Counsel's fee (and Solicitors' costs) on the basis of a hearing to approve settlement on the basis of acceptance of the payment in. Finally costs should be on a party and party scale. Although costs in such circumstances, after trial or settlement of an infant's claim, would normally be on a common fund basis, in the circumstances of this relatively simple claim I decided that they should be on the party and party scale.

14. I now proceed to deal with the Plaintiff's costs in accordance with the order and my decision under order 62 r 9(4)(b) to assess them on a gross sum basis.

Solicitors' Profit costs

15. The sum claimed is $316,463.33. This was a very simple case on limited evidence. There were no independent witnesses. The astonishing total of 13hours is claiming for perusing Counsel's five Advices and Draft Statement of Claim. This is wholly excessive. There cannot be any justification for requiring Counsel to advise on five occasions.

16. The time claimed for drafting and perusing a number of documents and statements is wholly excessive. It is also claimed that there were letters to and conversations with Counsel on 36 occasions. I regret to have to say that the alleged work and costs claimed are out of all proportion to this case.

17. Similarly the time claimed for perusing medical reports is disproportionate. I will come to Counsel's fees in due course but I note that he was instructed on no less than 43 occasions. Many of those were in relation to the most trivial of matters e.g. "Perusal of letter from Instructing Solicitors in respect of height and clothing of Ma Ka Lai [the Plaintiff]". The vast majority of the occasions on which Counsel was instructed was entirely unnecessary. The nature of them suggests that the Solicitor concerned was wholly unversed in personal injury litigation and felt unable to take any step without Counsel's approval. This is a classic illustration of a firm of Solicitors acting as a mere post-box or document generator, duplicating costs without restraint and failing to exercise any basic judgment. It is wholly wrong that Defendant's insurers or anyone for that matter, should be expected to pay for costs generated on this basis. A total of 122 hours work is claimed. I cannot accept that this case could properly call for anything like this amount of time.

18. I will allow the profit costs at $50,000.00. For preparation of and copying of documents I will allow $3,000.00

Disbursements

19. It was unreasonable to instruct Dr Timothy Law. Accordingly his fee must be deducted. I will allow the medical fees otherwise at $25,875.00 in total.

Counsel's fees

20. Counsel was instructed and his services utilised to a grossly excessive extent. I have already allowed, in the Solicitors' gross profit costs assessment, for the work which a Solicitor should do and which it is unreasonable to expect Counsel to do. Duplication of work and charges is not permissible. I will allow a total of $35,000.00.

Miscellaneous Disbursements

21. I will allow these at $3,500.00 in total.

Summary

22. The overall total is therefore:

50,000.00
3,000.00
25,875.00
35,000.00
3,500.00
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$117,375.00
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Conclusion

23. This is a legally aided case. The Plaintiff's Solicitors have waived any claim to any further costs. That means that there will be no deduction from the Plaintiff's damages and, subject to any decision by the Director of Legal Aid, no charge on the Legal Aid fund.