THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF SO CHING WAN v. ASSEN LTD (NOW IN LIQUIDATION) AND OTHERS

CACV 306/2019

[2023] HKCA 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 306 of 2019

(ON APPEAL FROM HCB 4475 OF 2002)

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REVIEW OF TAXATION

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1.  This is the application of the Paying Party, ie. the Applicant (“Mr. Tang”), to review my rulings made in the taxation of the costs claimed by the 2^nd to 4^th Respondents (“Receiving Parties”) in the bill of costs filed herein on 4 June 2021 (“Bill of Costs”).

2.  The Receiving Parties commenced taxation pursuant to the order of the Honourable Madam Justice Kwan, Vice-President, the Honourable Mr. Justice Cheung, Justice of Appeal and the Honourable Mr. Justice Au, Justice of Appeal dated 5 May 2021 (“Order”)

Background of the case  

3.  In HCB 4475/2002, Mr. So Ching Wan (“Bankrupt”) was adjudged bankrupt on 19 August 2002 upon a creditor’s petition.

4.  The Bankrupt used to be a director and was a shareholder of the 1^st Respondent.  The 2^nd to 4^th Respondents were directors and shareholders of the 1^st Respondent. 

5.  At a creditors’ meeting held on 14 November 2002, Mr. Tang and Mr. Wong Kwok Man (“Mr. Wong”) were appointed as joint and several trustees of the property of the Bankrupt.

6.  On 7 June 2016, Chung J made an order, pursuant to section 29(1) of the Bankruptcy Ordinance (Cap. 6) (“Ordinance”), requiring the Respondents herein to provide answers and documents as set out in Annex A and Annex B of that order (“2016 Order”).

7.  The application before Chung J was made by the Applicant, described as “the Joint and Several Trustees of the Property of So Ching Wan (‘the Bankrupt’)”.

8.  On 12 October 2018, Mr. Tang signed a summons (“Summons”) taken out under section 29 of the Ordinance and Order 45 of the Rules of the High Court (“RHC”) against the Respondents to enforce the 2016 Order.  The 1^st Respondent was in liquidation and Hom & Associates (“H&A”) acted for the 2^nd to 4^th Respondents.

9.  On 6 November 2018, the Applicant filed another summons (“Leave Summons”), which does not concern this taxation, seeking leave to continue these proceedings against the 1^st Respondent retrospectively given its liquidation.

10.  The Summons was amended on 22 November 2018 (“Amended Summons”), which was signed by Mr. Tang as “the Joint and Several Trustees of the Property of the Bankrupt”.

11.  On 6 June 2019, Deputy High Court Judge William Wong SC ordered, inter alia, that the Amended Summons be dismissed and the Applicant to pay the costs of the 2^nd to 4^th Respondents for the Amended Summons, which was varied on 2 July 2019. 

12.  The Applicant appealed to the Court of Appeal in CACV 306/2019 against the dismissal of the Amended Summons and the costs order (“Appeal”) on 3 July 2019.  The Amended Notice of Appeal and the Re-Amended Notice of Appeal was filed on 15 August 2019 and 11 December 2020 respectively. 

13.  The Appeal was fixed to be heard on 9 December 2020 with 1 day reserved, but the actual hearing time was much shorter.  By the order dated 29 December 2020, the Appeal was dismissed with costs on indemnity basis to be paid by Mr. Tang personally. 

14.  The part of the order dated 29 December 2020 concerning costs provides that :-

“2. There be a costs order nisi that the Applicant is to pay costs of the appeal to the liquidators of the 1^st Respondent and also to the 2^nd to 4^th Respondents on an indemnity basis. Mr. Alan Chung Wah Tang is to pay the costs personally and not from the estate of the Bankrupt. Such costs are to be taxed on an indemnity basis.”

15.  By way of summons filed on 12 January 2021, Mr. Tang applied to vary the costs order nisi (“Costs Order Nisi”) dated 29 December 2020 (“Application”).  The Application was dismissed by the Order and it was ordered that “the costs of and occasioned by the Application be to the 1^st to 4^th Respondents to be taxed together with the costs of the appeal if not agreed.”  

16.  In the Judgment of the Court of Appeal dated 29 December 2020, CA found, in paragraph 26 therein, that “the proceedings had all along been conducted by Mr. Tang himself” and in paragraph 27 therein, that “From now on the reference to the applicant must be understood to be referring to Mr. Tang himself.”

17.  On 4 June 2021, the Receiving Parties commenced taxation and the Bill of Costs was filed on the same date.  The List of Objections (“LOO”) was filed on 13 July 2021.  The taxation hearing was heard on 24 February 2022 (“Taxation Hearing”).  During the Taxation Hearing, Mr. Tang was legally represented and instructed law costs draftsman (“LCD”) to represent him.  He acted in person when the application for review of taxation was subsequently taken out.

Preliminary issues in the LOO

18.  In the LOO, the following issues were raised as preliminary issues :-

(a) hourly rates of solicitors, including whether H&A have excessively charged the hourly rates (“Issue 1”)

(b) Grossly excessive time charges (“Issue 2”) 

19.  At the Taxation Hearing, I was of the view that Issue 1 and Issue 2 were matters for consideration at taxation, not preliminary issues for taxation.  I had considered and ruled on the hourly rate of the solicitors for Issue 1 and I had considered the allegations for Issue 2 when making the rulings at the Taxation Hearing.

Proceedings background

20.  After my rulings at the Taxation Hearing, Mr. Tang, now acting in person, lodged the application for review of taxation on 26 May 2022.  In compliance with O.62, r.33(3) of RHC, Mr. Tang lodged the written objections specifying the items objected to for the application for review of taxation on the same date, seeking to review a total of 143 items (“Review Application”).

21.  2 call-over hearings were heard on 20 July 2022 and 29 September 2022, and leave was granted to Mr. Tang to lodge a revised review application, which was lodged on 10 August 2022, reducing the items for review to a total of 60 items and deleting Section F therein (“Revised Review Application”).  At the call over hearings, Mr. Tang raised concern about, inter alia, discovery of documents.  No proper application for discovery has been taken out. 

22.  The review of taxation hearing (“Review Hearing”) was heard on 2 March 2023.  At the beginning of the Review Hearing, Mr. Tang made 2 applications orally :-

(a) Application for adjournment of the Review Hearing (“Adjournment Application”); and

(b) Application for discovery of documents (“Discovery Application”).

23.  After orally making the Adjournment Application and after answering concern raised by the Court for clarification and justification of the application, Mr. Tang withdrew the application.  Mr. Leung, the LCD for the Receiving Parties, asked for costs of the Adjournment Application, which was agreed by Mr. Tang to be 1 hour LCD rate, ie. $1,800, payable forthwith.

24.  The Discovery Application was then made by Mr. Tang orally at the Review Hearing, asking for documents and evidence to show and prove that the 2^nd to 4^th Respondents have paid in satisfaction of all the amounts as in the Bill of Costs.  As the application is taken out late, no proper application was made and there were no merits at all in the application, the Discovery Application was dismissed with reasons given orally at the Review Hearing.  Mr. Leung asked for costs of the Discovery Application, which was agreed by Mr. Tang to be 1 hour 15 minutes of LCD rate, ie. $2,250, payable forthwith.

25.  After hearing the above Adjournment Application and Discovery Application, the Review Hearing commenced, which could not be completed on 2 March 2023 and was adjourned part-heard to 25 August 2023.  This is my determination of the Review of Taxation.

Grounds of Review

26.  There are sections A to E in the Revised Review Application, including explanation of background of the case, grounds of review, preliminaries issues and submissions from Mr. Tang, before listing out the items objected to with reasons.

27.  In Section A of the Revised Review Application, Mr. Tang explained the background of the case and relied on the following grounds to review my rulings at the Taxation Hearing :-

“(a) Learned Master is invited to re-consider the “Preliminary Issues” Raised in the Objection [LOO]; (Ground 1)

(b) Learned Master is invited to re-consider (even under the indemnity basis) the unreasonableness of both the nature of costs incurred and the amount of such costs so claimed (and Counsel fees in particular); (Ground 2)

(c) the apparent lack of contemporaneous evidence of agreement to and payment of the Claimed Costs by Respondents at the Taxation Hearing; (Ground 3)

(d) the apparent lack of contemporaneous evidence of there being any duly acknowledged receipt of fees by Counsel at the Taxation Hearing (Ground 4); and

(e) Learned Master is invited to re-consider exercising her discretion in light of the over-all unreasonableness of the Claimed Costs for a three-hour hearing, the conduct of the parties and the fact that these proceedings were instigated when Trustee was performing his statutory duties to enforce a Court Order under Section 29 of the bankruptcy Ordinance against the Respondent.” (Ground 5)

28.  For Ground 1, Mr. Tang repeats the “Preliminary Issues” raised in the LOO, which I identified as Issue 1 and Issue 2 in paragraph 18 above.

29.  I will now consider and rule the hourly rates of fee earners under Part A of the Bill of Costs.

30.  The Receiving Parties claimed in the Bill of Costs the fees for 2 fee earners, KC (the handling solicitor) and TS (a trainee solicitor), as follows :-

(a) KC, with hourly rate of $6,000 for the period before 1 April 2019 (“Period 1”);

(b) KC1, with hourly rate of $6,300 for the period from 1 April 2019 onwards (“Period 2”);

(c) TS, with hourly rate of $1,800 for Period 1; and

(d) TS1, with hourly rate of $1,890 for Period 2.

I allowed in full at the Taxation Hearing.

31.  Mr. Tang submitted that the fees charged for the fee earners are excessive and unreasonable.

32.  KC was admitted in Hong Kong in 1994.  He was previously admitted in Australia in 1993 and was also admitted in England and Wales in 1994.  When Mr. Tang filed the Notice on Appeal in July 2019, KC had 25 years of local experience.

33.  In view of the experience of KC, I am of the view that there is nothing unreasonable for different hourly rates be allowed at different periods.

34.  The amounts of hourly rates claimed by the Receiving Parties are higher than those stated in the table of “Solicitors’ hourly rates for party and party taxation” provided by the Law Society of $5,800 for solicitors of over 15 years of experience (“Law Society Table”).

35.  As the basis of taxation is on indemnity basis, I have considered the legal principles in paragraphs 26 and 34 of the case David John Kennedy v Kelly Cheng and Robert Yip [2012] HKCFA 64 for the consideration of hourly rate of a solicitor :-

“26. I should also add that in assessing what is unreasonable (as opposed to assessing what is reasonable), the court should bear in mind the practical reality that there are litigants who, being understandably more anxious than others to pursue or defend their rights, are willing to pay more than the normal average fees of counsel and solicitors. How much more such a litigant is prepared to pay over and above the normal average fees depends on a variety of factors including in particular, the complexity of the case and the importance of the case to him. In my view, it is not uncommon and certainly cannot be considered as unreasonable for a concerned litigant to adopt such an attitude. On a party and party taxation, it is likely that anything over and above the normal average fees would not be regarded by the court as reasonable and will be taxed off and the receiving party will have to shoulder the shortfall. But if the court, for good reasons, saw fit to award him his costs on a more generous basis (i.e. on an indemnity basis), I do not think it should be regarded as unreasonable to allow him to recover more than the normal average fees so long as they are not clearly excessive or, to use Megarry VC’s words, absurd or extravagant.”

“34. On a party and party taxation, it would not be considered reasonable for the receiving party to have instructed solicitors who charged more than the average hourly rates and any excess would be taxed off. But on an indemnity taxation, it would not be considered unreasonable for the receiving party to have engaged solicitors who charged more than the average hourly rates unless they are clearly excessive. What is clearly excessive depends on the circumstances of each case.”

 (emphasis underlined and bold)

36.  Whether the hourly rate is clearly excessive depends on the circumstances of each case.  When considering the hourly rates of KC and KC1, I have considered a number of factors, including the background and circumstances of this case, the complexity of issues involved in the appeal which was heard by the Court of Appeal, the nature of the work involved and the possibility of delegating to junior staff.

37.  I accept that the Receiving Parties are justified to be more concerned in this appeal case to engage a solicitor as experienced as KC, having 25 years of experience, which means paying more than the normal average fees.  Charging at $6,000 per hour, which is $200 per hour more than the Law Society Table, is not unreasonable.

38.  As I have allowed KC to claim different hourly rates at different periods of time as explained in paragraphs 32 and 33 above, I accept that for Period 2, with the experience of KC, an increase of hourly rate of $300 is not unreasonable.

39.  Therefore, I maintain my ruling of the hourly rates for KC and KC1 under Part A of the Bill of Costs.

40.  For TS, as submitted by Mr. Tang to consider the overall amounts claimed, and given my rulings made for the fee earners at the Taxation Hearing, the involvement of the trainee solicitor in this case is rather limited.

41.  Even with the consideration of the legal principles as stated in the CFA case above, the more concerned client to adopt a cautious approach to engage a more experienced solicitor can hardly be applicable to engaging a more experienced trainee solicitor.

42.  Considering the background and circumstances of this case, it is unreasonable, even on an indemnity basis, to allow the trainee solicitor an hourly rate more than the “Law Society Table” of $1,700 per hour and it is unreasonable to allow an increased rate for different periods for a trainee solicitor. 

43.  I therefore allow the review of TS and TS1.  I rule and allow $1,700 for TS and $1,700 for TS1.

44.  For Issue 2 in the LOO, the allegation of “grossly excessive time charges” will be considered when ruling on the items for the review of taxation and will not be ruled separately.  I have to point out that when the Receiving Parties claim for considering a document, it means more than the time for reading the document concerned.

45.  For Ground 2, it shall be considered when ruling on the items for the review of taxation and will not be ruled separately.

46.  For Ground 3, Mr. Tang submitted that there is the apparent lack of contemporaneous evidence of agreement to and payment of the claimed costs by the Respondents at the Taxation Hearing.

47.  Further, Mr. Tang submitted that even if the hourly rates claimed were proven to have been contractually payable by the Receiving Parties to H&A, evidence of their actual payment should be produced.  This is the basis of Mr. Tang making the Discovery Application orally at the beginning on the 1^st day of the Review Hearing.  I see no merits in the contention of Mr. Tang and I had dismissed this Discovery Application, with reasons given orally at the Review Hearing.

48.  There is a presumption that if a party has a solicitor on record that the party is liable to pay the solicitor’s costs, the party seeking to recover costs does not have to adduce evidence to support the presumption. It is for the Paying Party to adduce evidence to rebut the presumption.

49.  Under paragraph 17(7) of Practice Direction 14.3, a solicitor shall certify and sign to confirm on the taxation bill that the claim does not exceed the client’s liability to the firm. The Bill of Costs specifies the hourly rate and the time claimed.  H&A did comply with the requirement and the certificate in the Bill of Costs signed is effectively confirming H&A are not seeking to recover any amount more than the amount claimed in the Bill of Costs.  The Court can and should, unless there is evidence to the contrary, assume that the certificate shows that the indemnity principle has been complied with.

50.  Mr. Tang has not produced any evidence otherwise, other than expressing that there is the lack of contemporaneous evidence of the agreement to and payment of the claimed costs, which is taking Mr. Tang nowhere.

51.  In fact, I had ruled on the Discovery Application at the Review Hearing.  If there is genuine concern about the conduct of the Receiving Party, any proper application with basis to take out, if so advised, should be taken out in good time.  The concern about discovery of documents or evidence about payment had been raised at the call-over hearings, but I have to point out that :-

(a) no proper application has been made;

(b) Section F about request for documents has been deleted and it is no longer included in the Revised Review Application; and

(c) Mr. Tang only took out the Discovery Application orally at the Review Hearing, which was dismissed by me.

I therefore conclude that there is no basis for Mr. Tang to challenge the agreement to pay costs in this case as stated in Ground 3.  It follows that there is no merit to Ground 3 of this Review of Taxation and the allegation will not affect the consideration of hourly rate of fee earners.

52.  Mr. Tang invited the Court to re-consider the rates claimed by KC in light of the fact that the profit costs claimed by KC amounted to 68% of all costs allowed.  He contended that much of the work required to be performed could have been done by a less senior solicitor.

53.  The fact that the work done by KC amounted to 68% of all costs allowed is no ground to reduce the hourly rates of KC.  There may be work which can be done by solicitor with less experience charging at lower rates.  However, solicitor with less experience will require more time than a more experienced solicitor to complete the same piece of professional work.  In this review of taxation, I will consider whether it would be unreasonable (for taxation on indemnity basis) or whether it would be proper or necessary (for taxation on party and party basis) for KC to undertake the work claimed.  The fact that certain work can be done by a more junior fee earner is not a ground to reduce the hourly rate of a solicitor, as the time allowed for a solicitor to finish a job will be determined in accordance with his experience and the hourly rate allowed for him. 

54.  If KC took up work for unqualified person or work which was not appropriate for him to do, he may only be allowed to charge at the rate of an unqualified person or junior fee earner for that particular piece of work.  This will be dealt with item by item and will not affect the hourly rate allowed for the fee earner in respect of the whole Bill of Costs. 

55.  For Ground 4, ie. the allegation of the apparent lack of contemporaneous evidence of there being any duly acknowledged receipt of fees by Counsel at the Taxation Hearing, I will further consider when items for counsel fees are considered below. 

56.  For Ground 5, Mr. Tang asked the taxing Master to re-consider based on (a) overall unreasonableness of the claimed costs; (b) conduct of the parties; and (c) the fact that these proceedings were instigated when trustee was performing the statutory duties to enforce a court order under section 29 of the Bankruptcy Ordinance.  For (a), it should be considered generally throughout the review of taxation, but not to rule specifically.  For (b), as Mr. Tang did not elaborate further (other than relying on the excessive amounts claimed) and with the circumstances before me, I do not see any conduct affecting my consideration of review of taxation.  For (c), the Court should not be considering the substantive matters raised at the Appeal hearing.  I notice that Mr. Tang did not elaborate further or repeat this ground at the Review Hearing.

Preliminary issues raised in the Revised Review Application

57.  In Section B of the Revised Review Application, Mr. Tang has listed out some preliminary issues, which are basically repeating the Preliminary Issues in the LOO.  Section C is about “unreasonably excessive amounts claimed”, Section D is about “costs unreasonably incurred” and Section E is about “no evidence of agreement / payment of fees (costs)”, which is repeating Ground 3 and Ground 4.  During the Review Hearing, Mr. Tang confirmed that these need not be determined preliminarily or separately, but to be considered when I review the relevant items objected at the Review Hearing.  The only preliminary issue I have to rule is Issue 1 of LOO, ie. the hourly rates of the fee earners, which I had considered and ruled in paragraphs 29 to 43 above. 

Items for review

58.  In the Revised Review Application, Mr. Tang applied to review a total of 60 items, which I will consider below, with reference to the item number in the Bills of Costs.  I will group some of the related items to be considered together.

Applicable Legal principles 

59.  Items 1, 4, 7, 9, 10, 13, 14, 22, 25, 32, 35, 38, 41, 42, 44, 46, 47, 48, 49, 51, 52, 53.1, 57, 58, 65.1, 65.2.1, 65.2.2, 65.2.4, 65.2.5, 65.3.1, 65.4.1, 65.4.2, 65.4.4, 65.5.1, 65.6.1, 65.6.2, 65.6.3, 65.7, 65.8, 66.1, 67, 68 and B1B2 are items under Part A of the Bill of Costs.  They are to be considered under the indemnity basis, which I have to consider whether the costs claimed are unreasonable.

60.  To consider whether an item claimed by the Receiving Parties is unreasonable or not, the legal principles in the case David John Kennedy v Kelly Cheng and Robert Yip [2012] HKCFA 64is applicable, which I quote as follows :-

“21. First, an award of costs on an indemnity basis is intended to allow for the payment of costs on a more generous level as compared to the case of costs awarded on a party and party or common fund basis. The object of such an order is to reimburse the winning party (the receiving party) “all (his) costs” and to give him “a complete indemnity” and “everything”, “shorn only of” or “except the unreasonable” or “anything that is seen to be unreasonable”. However, as the Registrar rightly observed, this is not giving a blank cheque to the receiving party to recover all his costs without proper scrutiny by the court. This would defeat the very object of having a taxation.

22. Secondly, the receiving party is prima facie entitled to be paid all his costs, provided that they are “costs of and incidental to the proceedings”, subject only to the qualification that any particular item which has been unreasonably incurred or any particular amount which is unreasonable must be excluded. This means that all items incurred for the purpose of the litigation are included except that those items or amounts which the taxing master considers to be unreasonable would be taxed off. The receiving party does not have to show that his costs had been reasonably incurred or were of a reasonable amount, only that they are not unreasonable.

23. Thirdly, there is no question of the paying party having any burden of proof since there are relevant materials including client’s instructions which are not available or discoverable to the paying party. So long as there are materials available to the taxing master, they can be considered by him. If necessary, he can ask the receiving party to produce them for the purpose of taxation.

24. Fourthly, the court only considers whether the costs were unreasonably incurred or of an unreasonable amount. (See Lord Woolf in Petrotrade.) The approach of the taxing master is to decide whether a particular item or particular amount which is being challenged is unreasonable. He is not required to go through the items and decide whether they are reasonable. He is required only to adjudicate on items or amounts which are said to be so unreasonable as to be excluded.

25.   Fifthly, in the great majority of cases, this should not be difficult. The unreasonable items or unreasonable amounts would be easily identified or readily identifiable. It is only when it is not clear whether a particular item or amount is unreasonable, that is, where there is a doubt as to whether it is unreasonable, that the benefit of the doubt should be given to the receiving party.”

(emphasis underlined and bold)

61.  The remaining items (ie. items 70, 72, 74.1, 75, 76, 78, 79.1, 79.3, 80, 84, 86, 90.1, 90.2, 90.3.1, 90.4.1, 92 and item 1 under Section B2) are under Part B of the Bill of Costs.  They are items to be considered under the party and party basis, which I have to consider whether it is reasonable or proper of those costs to be allowed.

Items 1, 4, 67, 68, 74.1, 75, 76, 78, 79.1, 79.3, 80, 84, 90.2 and 92

62.  Out of the 60 items, the amounts for items 1, 4, 74.1 and 90.2 had been agreed by the LCD representing Mr. Tang before the Taxation Hearing and confirmed at the beginning of the Taxation Hearing.  The amounts for items 67, 68, 75, 76, 78, 79.1, 79.3, 80, 84 and 92 had been agreed by the LCD representing Mr. Tang during the Taxation Hearing.  No ruling was made by the Court for these 14 items, as the amount for each of these items was agreed by consent.  As a result, there is no basis to review these 14 items.

63.  Even if there is basis for Mr. Tang to review these 14 items, I notice that there are no reasons provided either orally or in the Revised Review Application of why the agreement as to each of those 14 items has to be revoked.  By considering the Revised Review Application and the submissions at the Review Hearing, I do not see any reason of why the items and the amounts agreed for items 1, 4, 67 and 68 are unreasonable, and I do not see any reasons why the items and the amounts agreed for items 74.1, 75, 76, 78, 79.1, 79.3, 80, 84, 90.2 and 92 are not necessary or proper.  Therefore, the amounts agreed for these 14 items are to be maintained.

Item 7

64.  For this item, KC claimed 1.5 hours in considering the Amended Notice of Appeal.  I allowed KC for 1 hour.

65.  Mr. Tang submitted that the amended grounds for the appeal were straightforward, with substantial deletion and few additions, and therefore it was unreasonable to take almost the same amount of time as item 1 of the Bill of Costs (ie. considering the Notice of Appeal) to re-read the Amended Notice of Appeal.

66.  The Notice of Appeal as in item 1 of the Bill of Costs contains 19 pages of content (with grounds of appeal A to G and a total of 47 paragraphs explaining the grounds), which parties have agreed 1.5 hours during the Taxation Hearing.  For the Amended Notice of Appeal (ie. item 7 of the Bill of Costs), which contains 23 pages in total including addition and deletion of content.  Apart from the deleted parts, there were amendments made for grounds A, B, C, D and G, and the relevant paragraphs explaining those grounds, and also minor amendments to grounds E and F. 

67.  It is not unreasonable to allow 1 hour to consider the Amended Notice of Appeal and I maintain my ruling.

Items 9 and 52

68.  For item 9, KC claimed 1 hour in considering the letter of 7 pages dated 16 September 2019, with enclosure of the amended draft index to the appeal bundle.  I allowed in full.

69.  Mr. Tang submitted that it is completely unreasonable to have spent 1 hour of KC’s time to check the straightforward draft appeal bundle index against the past court filings and work should have been delegated to junior staff.

70.  For item 52, it contains the following sub-items :-

(a) item 52.1, which KC claimed 30 minutes and TS claimed 1 hour in considering the draft appeal bundle index sent under the letter of 9 pages dated 9 July 2019.  I allowed KC 20 minutes and tax off TS.

(b) item 52.2, which KC claimed 15 minutes and TS claimed 30 minutes in considering the revised draft appeal bundle index sent under the letter of 10 pages dated 5 September 2019.  I allowed KC in full and tax off TS.

(c) item 52.3, which KC claimed 15 minutes and TS claimed 30 minutes in considering the re-revised draft appeal bundle index sent under the letter of 7 pages dated 17 December 2019.  I allowed KC in full and tax off TS.

(d) item 52.4, which KC claimed 2 hours and KC1 claimed 15 minutes, with TS claimed 2 hours and TS1 claimed 15 minutes in considering the appeal bundles inclusive of checking those documents being attached thereto, with a total of 1,126 pages. I allowed KC 1.5 hours, and taxed off KC1, TS and TS1.

71.  Mr. Tang submitted that there was duplication of the items.  In view of the description of those items and the documents in support provided in the Review Hearing bundles, there were different letters containing different versions of the appeal bundle index and there is no duplication. 

72.  For items 9 and 52, the different revised versions from the Applicant for the draft appeal bundle index were upon the Court’s directions to revise and for the other party to confirm. Therefore, engaging KC the handling solicitor to handle is not unreasonable. 

73.  In relation to the different versions of the appeal bundle index and the need to check if all the important documents are included, the time allowed under items 52.1, 52.2, 52.3 are not unreasonable.  For item 52.4, because of the different versions previously submitted, it is also not unreasonable for KC to consider the appeal bundle.  Having taken into account some of the checking of pages can be delegated to junior staff, I only allowed KC 1.5 hours and have taxed off KC1, TS and TS1.  I therefore maintain my ruling for all sub-items under item 52.

74.  In relation to item 9, even if KC’s handling of that item is justified, when comparing the different items of work of considering the draft bundle index, by comparing the related items together, I am of the view that the checking of different versions, by comparing to the previous ones, should be done in much lesser time.  Allowing 1 hour is unreasonable.  I therefore allow the review of this item and I allow KC 20 minutes, considering that this is the first version of the draft bundle index.

Item 10

75.  For this item, KC claimed 30 minutes in drafting the letter dated 27 September 2019 to Court of 2 pages with enclosures of 11 pages.  I allowed this item in full.

76.  Mr. Tang submitted that work should have been delegated to junior staff.  Further to item 9, time charged is unreasonable for picking minor formatting errors, which KC should have marked on the draft index instead of writing a letter to court. 

77.  It is not disputed that there were directions from the Registrar on 19 September 2019, which the parties have to reply to.  In view of the preparation of the draft bundle index, with the reason explained in paragraph 72 above, I accept that it is not unreasonable for KC to draft the letter.  In view of the content of the letter, there were 6 paragraphs commenting the appeal index, with paragraph 1 containing 4 sub-paragraphs, paragraph 5 containing 3 sub-paragraphs and paragraph 6 containing 3 sub-paragraphs.  In the circumstances, it is not unreasonable to allow KC 30 minutes and I maintain my ruling.

Items 13 and 14

78.  For item 13, KC claimed 30 minutes in considering the letter with enclosures of 8 pages dated 4 November 2019.  I allowed in full.

79.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that the time allowed is unreasonable.

80.  As the enclosure is the draft bundle index, it is not unreasonable for KC to consider.  In relation to the time allowed, I adopt the same reasoning as for item 9 in paragraph 74 above. I am of the view that allowing 30 minutes under this item is unreasonable.  I allow the review of this item and allow KC for 15 minutes.

81.  For item 14, KC claimed 30 minutes in drafting the letter of 2 pages to Court dated 18 November 2019. I allowed 20 minutes at the Taxation Hearing.

82.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that the time allowed is unreasonable, as the letter only commented on 2 items of the appeal bundle.

83.  As the handling solicitor, it is not unreasonable for KC to draft the letter.  However, I notice that this letter is drafted from the considering of item 13 enclosing the revised draft bundle index.  There were related items above about checking different versions of bundle index.  As there are only 2 items commented on the bundle index, it is unreasonable to allow 20 minutes.  I allow the review of this item and allow KC for 10 minutes.

Item 22

84.  For this item, KC claimed 1 hour in drafting the letter to Court of 3 pages dated 12 May 2020.  I allowed 40 minutes at the Taxation Hearing.

85.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that the letter contained content about the trustees’ capacity in paragraph 2(3) therein, which is unreasonable time spent. 

86.  Pursuant to the letter from court dated 11 November 2020, it was upon the court’s requisitions raised that KC drafted the letter, addressing the court’s concern and to raise the content as in paragraph 2(3) therein.  Given the background of the case, I am of the view that it is not unreasonable for KC to draft the letter to Court as per the content and to allow KC 40 minutes.  I therefore maintain my ruling.

Item 25

87.  For this item, KC1 claimed 20 minutes for considering the note of order by way of letter dated 3 June 2020.  I allowed 15 minutes.

88.  Mr. Tang submitted that work should have been delegated to junior staff.  In view of the consideration of the note of order from the Court, I am of the view that it is not unreasonable for KC1 to handle. 

89.  The letter contained 3 pages, which is one of the case management directions.  Considering the content therein, including the application of Practice Directions 4.1 to these proceedings, it is not unreasonable to allow 15 minutes for KC1 and I maintain my ruling.

Item 32

90.  For this item, KC1 claimed 2 hours for considering the summons filed on 5 November 2020 together with enclosures of a total of 37 pages.

91.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that the actual contents of the re-amended notice of appeal spans only 10 pages and the total amount claimed is unreasonable. 

92.  In view of the content of the summons, it is not unreasonable for KC, the experienced handling solicitor, to consider.  The summons, with the content and enclosure therein, was prepared by the Applicant’s solicitors, while the other 2 previous Notice of Appeal (item 1 of the Bill of Costs) and Amended Notice of Appeal (item 7 of the Bill of Costs) were prepared by Mr. Tang acting in person.  In view of the content of the Re-Amended Notice of Appeal and the summons taken out, it is not unreasonable to allow KC1 of 1.5 hours and I maintain my ruling.

Item 35

93.  For this item, KC1 claimed 1 hour for drafting the letter to Court dated 9 November 2020.  I allowed 40 minutes.

94.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that KC kept on side-tracking the appeal by arguing about the Applicant’s legal representation / capacity and the format of the amended Notice of Appeal.

95.  In view of the drafting the letter to Court for this appeal case, KC1’s involvement is justified.  In view of the content of the letter, it is not unreasonable to allow KC1 for 40 minutes and I maintain my ruling.

Item 38

96.  For this item, KC1 claimed 45 minutes for drafting the letter to Court dated 9 November with enclosure of a total of 10 pages.

97.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, KC kept on unreasonably side-tracking the appeal by repeatedly arguing about the Applicant’s legal representation / capacity and the capacity of one of the Bankruptcy trustees to act in the Appeal.

98.  In view of the drafting of the letter to Court for this appeal, KC1’s involvement is justified.  Regarding the time, it is a letter in reply to the Court’s note on 9 November 2020, I am of the view that it is not unreasonable to allow KC1 for 25 minutes and I maintain my ruling.

Item 41

99.  For this item, KC1 claimed 3 hours and TS1 claimed 3 hours for considering the skeleton of the Applicant.  I allowed 2 hours for KC1 and taxed off TS1.

100.  Mr. Tang submitted that the time claimed is unreasonably excessive with 2 counsel instructed.

101.  There are a total of 42 pages of the skeleton for the appeal.  In view of the content therein, even with counsel instructed, it is not unreasonable to allow KC1 for 2 hours and I maintain my ruling.

Item 42

102.  For this item, KC1 claimed 4 hours for considering the list of authorities of the Applicant together with enclosures of a total of 212 pages.  I allowed 2 hours.

103.  Mr. Tang submitted that the time claimed is unreasonably excessive, as there are 2 counsel instructed.

104.  There are a total of 13 authorities with a total of 212 pages.  Even if counsel are instructed, it is not unreasonable to allow KC1 for 2 hours and I maintain my ruling.

Item 44

105.  For this item, KC1 claimed 2.5 hours and TS1 claimed 2.5 hours for considering the skeleton of the Joint and Several Liquidator of the 1^st Respondent. I allowed 1 hour 45 minutes for KC1 and taxed off TS1.

106.  Mr. Tang submitted that as the appeal was to compel the 2^nd to 4^th Respondents as the directors of the 1^st Respondent to produce records, the 1^st Respondent has no role to play.  It is unreasonable to have spent time to consider the submissions of the 1st Respondent.

107.  As the 1^st Respondent is one of the related parties involved and submissions had been lodged, it is not unreasonable to allow KC1 consider the skeleton.  In view of the content, containing 23 pages of the skeleton plus 37 pages of past correspondence amongst the parties, it is not unreasonable to allow KC1 for 1 hour 45 minutes and I maintain my ruling.

Item 46

108.  For this item, KC1 claimed 2 hours and TS1 claimed 2 hours for considering the 2^nd to 4^th Respondents’ skeleton together with enclosure of a total of 36 pages.  I allowed 1.5 hours for KC1 and taxed off TS1.

109.  Mr. Tang submitted that the time charged is unreasonable.

110.  In view of the length and content of the skeleton and KC had provided comments and revised copies to counsel, it is not unreasonable to allow KC1 for 1.5 hours and I maintain my ruling.

Item 47

111.  For this item, KC1 claimed 3 hours for considering the 2^nd to 4^th Respondents’ 12 list of authorities with enclosure of a total of 156 pages.  I allowed 1.5 hours.

112.  Mr. Tang submitted that the time charged is unreasonable.

113.  In view of the authorities involved with a total of 156 pages, it is not unreasonable to allow KC1 for 1.5 hours and I maintain my ruling.

Item 48

114.  For this item, KC1 claimed 2 hours and TS1 claimed 2 hours for considering the supplemental skeleton of the Applicant with enclosures of a total of 53 pages. I allowed 1 hour for KC1 and taxed off TS1.

115.  Mr. Tang submitted that the time charged is unreasonable and there is duplication of work with counsel.

116.  In view of the content of the skeleton, even if counsel are instructed, it is not unreasonable to allow KC1 for 1 hour and I maintain my ruling.

Item 49

117.  For this item, KC1 claimed 3.5 hours for the Supplemental List of Authorities of the Applicant of a total of 182 pages.  I allowed 2 hours.

118.  Mr. Tang submitted that the time charged is unreasonable and there is duplication of work with counsel.

119.  In view of the content of the skeleton, even if counsel are instructed, it is not unreasonable to allow KC1 for 2 hours and I maintain my ruling.

Item 51

120.  For this item, KC1 claimed 15 minutes for consider the letter for the Joint and Several Liquidator of the 1^st Respondent to the Court dated 8 December 2020 together with its enclosure.  I allowed 12 minutes for KC1.

121.  Mr. Tang submitted that as the appeal was to compel the 2^nd to 4^th Respondents as the directors of the 1^st Respondent to produce records, the 1^st Respondent has no role to play.  It is unreasonable to have spent time to consider the letter of the 1^st Respondent.

122.  As the 1^st Respondent is one of the parties involved and the letter was sent to Court, it is not unreasonable for KC1 to consider and to allow KC1 for 12 minutes.  I maintain my ruling.

Item 53.1

123.  For this item, KC1 claimed 1 hour and TS1 claimed 1 hour for attending to the preparation of the Appeal hearing on 9 December 2020.  I allowed 45 minutes for KC1 and taxed off TS1.

124.  Mr. Tang submitted the time spent is unreasonable as KC1 had limited role at the hearing.

125.  No documents in support could be produced by the Receiving Parties and Mr. Leung submitted that KC1’s preparation was the usual preparation for hearing.  As 2 counsel are involved and no specific preparation work is particularised, allowing 45 minutes is unreasonable.  I allow review for this item and allow 20 minutes for KC1.

Item 57

126.  For this item, KC1 claimed 2 hours for considering the judgment dated 29 December 2020. I allowed 90 minutes for KC1.

127.  Mr. Tang submitted that as the reading of judgment is “post-hearing”, the time spent is unreasonable.

128.  I am of the view that KC1 is entitled to claim for the consideration of the judgment.  In view of the judgment containing 43 pages and the content therein, it is not unreasonable to allow KC1 for 90 minutes and I maintain my ruling.

Item 58

129.  For this item, KC1 claimed 20 minutes for considering the order dated 29 December 2020. I allowed 15 minutes.

130.  Mr. Tang submitted that as this is post-hearing, the time spent is unreasonable. 

131.  I am of the view that KC1 is entitled to claim for the consideration of the order.  In view of the content and to consider whether the content therein is in order and accurate, it is not unreasonable to allow KC1 for 15 minutes and I maintain my ruling.

Item 65.1  

132.  For this item, it consists of a total of 12 sub-items as follows:-

(a) item 65.1.1, drafting long email of advice dated 5 July 2019, claiming KC 1 hour 15 minutes;

(b) item 65.1.2, drafting long email of advice dated 19 August 2019, claiming KC 1 hour 45 minutes;

(c) item 65.1.3, drafting long email of advice dated 19 December 2019, claiming KC 1 hour;

(d) item 65.1.4, drafting long email of advice dated 15 October 2020, claiming KC 2 hours;

(e) item 65.1.5, drafting long email of advice dated 26 October 2020, claiming KC 1 hour;

(f) item 65.1.6, drafting long email of advice dated 25 November 2020, claiming KC 45 minutes;

(g) item 65.1.7, drafting long email of advice dated 30 December 2020, claiming KC1 for 1 hour 45 minutes;

(h) item 65.1.8, drafting long email of advice dated 31 December 2020, claiming KC1 for 45 minutes;

(i) item 65.1.9, drafting long email of advice dated 12 January 2021, claiming KC1 for 1 hour 30 minutes;

(j) item 65.1.10, 60 emails written, claiming KC 5 hours 30 minutes and KC1 for 7 hours 55 minutes;

(k) item 65.1.11, 44 emails received, claiming KC 1 hour 15 minutes and KC1 for 2 hours 25 minutes; and

(l) item 65.1.12, 1 telephone call, claiming KC1 for 10 minutes,  

with a total of KC claiming 10 hours 45 minutes and KC1 claiming 18 hours 15 minutes for communication with clients.  At the Taxation Hearing, as agreed by both LCD, I gave my ruling for all 12 sub-items in total.  I allowed 9 hours for KC and 14 hours for KC1.

133.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, 23 hours to liaise with clients for this appeal with one substantial hearing is unreasonable.

134.  As the handling solicitor, it is not unreasonable for KC to be engaged in communication with his clients, the 2^nd, 3^rd and 4^th Respondents.  It is not in dispute that the appeal has been fixed to be heard with 1 day reserved, which ended up finishing early in the morning.

135.  Mr. Leung, the LCD for the Receiving Parties, pointed out that there was no face to face conference with clients, as they mainly relied on e-mail communication.  The appeal proceedings lasted for about 1.5 years in total, from filing the Notice of Appeal on 3 July 2019 to the appeal hearing on 9 December 2020, with the Appellant filing a total of 3 versions of Notice of Appeal (2 by Mr. Tang acting in person and 1 by Mr. Tang’s solicitors).  It was not unreasonable for KC, being the handling solicitor, to take instructions and advise clients accordingly with different Notice of Appeal filed, and to report the progress of the case throughout the whole period.  It is not unreasonable to allow KC for 9 hours and KC1 for 14 hours.  I maintain my ruling. 

Items 65.2.1, 65.2.2, 65.2.4 and 65.2.5

136.  KC claimed a total of 5 hours 25 minutes and TS 20 minutes for these 4 items concerning communication with Mr. Tang.  Both LCD at the Taxation Hearing agreed I gave ruling for a sum for these 4 items.  I allowed a total of 4 hours for KC and taxed off TS.

137.  As Mr. Tang opposed to these 4 items separately in the Revised Review Application, I will consider them one by one.

138.  For item 65.2.1, KC claimed 1 hour 20 minutes for communication by way of 6 letters written.

139.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he referred to detailed analysis in Appendix 1 enclosed to the Revised Review Application.

140.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Having considered the length and content of the letters, it is not unreasonable to allow 40 minutes in total for all the 6 letters written.

141.  For item 65.2.2, KC claimed 45 minutes for communication by way of 9 letters or emails received.

142.  Mr. Tang submitted that work should have been delegated to junior staff. Further, he referred to the detailed analysis in Appendix 1 enclosed to the Revised Review Application.

143.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Having considered the length and content of the letters, I am of the view that spending about 2 minutes for each of the 9 letters or emails and allowing 18 minutes in total is not unreasonable. 

144.  For item 65.2.4, KC claimed 20 minutes for considering documents received by them from the Court of a total of 8 pages.

145.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that it is unreasonable for an experienced solicitor to revisit in any detail Practice Direction 4.1 attached to the said document from court.

146.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Out of the 8 pages, 7 pages are taken from Practice Direction 4.1, and one page is “Important Directions” from Registrar of Civil Appeals.  In view of the content, including the important directions and the need to consider the application of Practice Direction 4.1 to these proceedings, it is not unreasonable to allow KC for 12 minutes.

147.  For item 65.2.5, KC claimed 3 hours for considering the transcripts of the hearing before Deputy High Court Judge William Wong SC on 27 May 2019 under HCB 4475/2022 sent under the email dated 11 July 2019. 

148.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that time claimed is unreasonable.

149.  It is not unreasonable for the handling solicitor KC to consider the transcripts.  Having considered the length of the transcript and the importance of the hearing, it is not unreasonable to allow 2 hours 50 minutes.

150.  By adding my rulings for these 4 sub-items, they add up to 4 hours which is not unreasonable to allow.  I maintain my ruling.

Items 65.3.1

151.  For this item, KC1 claimed 1 hour for 2 letters written, including 1 long letter dated 27 November 2020 to Mr. Wong, one of the Joint and Several Trustees of the Property of the Bankrupt.  I allowed KC1 for 50 minutes.

152.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he referred to the detailed analysis in Appendix 1 enclosed to the Revised Review Application.  In gist, Mr. Tang is of the view that it is entirely unnecessary, irrelevant and unreasonable to write the letter to Mr. Wong.

153.  As both Mr. Tang and Mr. Wong were appointed as the joint and several trustees of the property of the Bankrupt, letter sent to Mr. Wong ascertaining his position before the appeal hearing is not unreasonable.  KC, being the instructing solicitor, is justified to handle the matter.  I ruled that it was not unreasonable to allow 50 minutes in writing the 2 letters and therefore I maintain my ruling.

Items 65.4.1, 65.4.2 and 65.4.4 

154.  KC claimed a total of 2 hours 10 minutes for these 3 items concerning communication with the Joint and Several Liquidators of the 1^st Respondent.  Both LCD at the Taxation Hearing agreed I gave ruling for a sum for these 3 items.  I allowed in full.

155.  As Mr. Tang opposed to these 3 items separately in the Revised Review Application, I will consider them one by one.

156.  For item 65.4.1, KC1 claimed 20 minutes for 1 letter written.

157.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, Mr. Tang referred to the detailed analysis in Appendix 1 enclosed to the Revised Review Application. In gist, Mr. Tang is of the view that the reply is irrelevant to the appeal hearing and should be taxed off.

158.  The letter is a reply to the letter from the Joint and Several Liquidator of the 1^st Respondent in the letter dated 3 December 2020.  It is not unreasonable for the handling solicitor KC to write that reply letter.  Considering the content, it is not unreasonable to allow this item and the amount in full.  I therefore maintain my ruling.

159.  For item 65.4.2, KC1 claimed 1 hour 30 minutes for 8 letters received, including 2 long letters. 

160.  Mr. Tang submitted work should have been delegated to junior staff.  Further, he referred to the detailed analysis in Appendix 1 enclosed to the Revised Review Application.

161.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Having considered the length and content of the letters, it is not unreasonable to allow this item of 8 letters received and the amount in full.  I therefore maintain my ruling.

162.  For item 65.4.4, KC1 claimed 20 minutes for considering 2 letters and enclosed documents of a total of 9 pages. 

163.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, Mr. Tang referred to detailed analysis in Appendix 1 enclosed to the Revised Review Application.  In gist, this item is irrelevant to the appeal.

164.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  The 2 letters were sent from the Joint and Several Liquidators of the 1^st Respondent and from Mr. Tang, with the copy of the letters provided to the Receiving Parties.  They questioned the position of Mr. Tang’s capacity in the action.  I do not agree that the content of the letters is irrelevant, as Mr. Tang’s capacity will affect the court’s consideration, including costs issues.  It is not unreasonable to allow this item and the amount in full. 

165.  With my ruling for the above 3 sub-items of item 65.4, added up to 2 hours 10 minutes, I maintain my ruling.

Item 65.5.1

166.  For this item, KC1 claimed 1 hour 25 minutes for 5 letter written to the former solicitors of Mr. Tang.  I allowed in full.

167.  Mr. Tang submitted that work should have been delegated to junior staff and the work done is mostly irrelevant.  Further, he referred to the detailed analysis in Appendix 1 enclosed to the Revised Review Application.  In gist, the letters under this item are mostly irrelevant.

168.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Considering the content of those 5 letters, which concern Mr. Tang’s capacity, I do not agree that the content of the letters is irrelevant, as the Mr. Tang’s capacity will affect the court’s consideration, including costs issues.  It is not unreasonable to allow this item and the amount in full. 

Items 65.6.1, 65.6.2 and 65.6.3

169.  KC1 claimed a total of 5 hours 5 minutes for these 3 items concerning communication with the solicitors of Mr. Tang.  Both LCD at the Taxation Hearing agreed I gave ruling for a sum for these 3 items.  I allowed 4.5 hours for KC1.

170.  As Mr. Tang opposed to these 3 items separately in the Revised Review Application, I will consider them one by one.

171.  For item 65.6.1, KC1 claimed 3 hours and 50 minutes for 11 letters written.

172.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, Mr. Tang referred to detailed analysis in Appendix 1 enclosed to the Revised Review Application.  In gist, Mr. Tang is of the view that all the letters were unreasonable challenges from the Receiving Parties which is unnecessary and provoking, and intended to rack up costs.

173.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Having considered the 11 letters and the content, I am of the view that challenging Mr. Tang’s capacity, including his capacity to give instructions to his solicitors for the proceedings are not unreasonable for this case.  I allow 3 hours 40 minutes.

174.  For item 65.6.2, KC1 claimed 45 minutes for 6 letters received.  

175.  Mr. Tang submitted work should have been delegated to junior staff.  Further, he referred to detailed analysis in Appendix 1 enclosed to the Revised Review Application.  In gist, Mr. Tang is of the view that most of the letters are irrelevant.

176.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  Having considered the length and content of the letters, as they are letters from Mr. Tang’s solicitors, it is not unreasonable to allow time for considering these 6 letters.  I allow 35 minutes.

177.  For item 65.6.3, KC1 claimed 30 minutes for considering the draft consent summons and its enclosure of a total of 37 pages.

178.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that the time claimed is substantially unreasonable and duplicated. 

179.  It is not unreasonable for the handling solicitor KC to handle the communication concerned.  The consent summons contains 3 pages only, but the draft amended Notice of Appeal contains 31 pages.  Even if time had been given to consider the draft amended Notice of Appeal before, this item is not in duplication to any other items.  There is the need to consider the draft amended Notice of Appeal as per the version annexed to the consent summons.  I allow 15 minutes. 

180.  With my ruling for the above 3 sub-items under item 65.6, I allowed a total of 4.5 hours.  I therefore maintain my ruling.

Item 65.7

181.  For this item, it consists of a total of 6 sub-items as follows :-

(a) item 65.7.1, drafting long email dated 17 November 2020, claiming KC 1 hour;

(b) item 65.7.2, drafting long email dated 22 November 2020, claiming KC1 for 3 hours;

(c) item 65.7.3, drafting long email dated 2 December 2020, claiming KC1 for 45 minutes;

(d) item 65.7.4, drafting long email dated 3 December 2020, claiming KC1 for 1 hour 30 minutes;

(e) item 65.7.5, 10 letters or emails written, claiming KC 15 minutes and KC1 for 2 hours 25 minutes; and

(f) item 65.7.6, 6 letters or emails received, claiming KC1 for 30 minutes,

with a total of KC claiming 15 minutes, KC1 claiming 9 hours 10 minutes and TS 1 claiming 30 minutes for communication with senior counsel, Mr. Anson Wong, SC.  At the Taxation Hearing, both LCD agreed I gave my ruling for all 6 sub-items in total.  I allowed in full.

182.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that the time spent with senior counsel is unreasonable.

183.  I have been provided with details of the communication with senior counsel, with breakdown and supporting documents of all the letters and emails.  Considering the content, they are for the preparation of the appeal hearing.  I agree that some work can be delegated to TS1, but in view of the background and circumstances of this case, it is not unreasonable for KC/KC1 to handle most of the communication.  It is not unreasonable to allow this item in full and I maintain my ruling.

Item 65.8

184.  For this item, it consists of a total of 5 sub-items as follows :-

(a) item 65.8.1, drafting long email dated 8 July 2019, claiming KC 1 hour;

(b) item 65.8.2, drafting long email dated 26 October 2020, claiming KC1 for 1 hour;

(c) item 65.8.3, 22 letters or emails written, claiming KC 1 hour and KC1 for 2 hours 50 minutes;

(d) item 65.8.4, 17 emails received, claiming KC 30 minutes; and

(e) item 65.8.5, 2 telephone calls, claiming KC1 for 12 minutes and TS1 for 6 minutes,

with a total of KC claiming 2 hours 15 minutes, KC1 claiming 4 hours 57 minutes, TS claiming 45 minutes and TS 1 claiming 6 minutes for the communication with junior counsel, Mr. Alan Kwong.  At the Taxation Hearing, both LCD had agreed I gave my ruling for all 5 items in total.  I allowed in full for this item, containing these 5 sub-items. 

185.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, he submitted that time spent with junior counsel is unreasonable and time may be duplicated with the communication with senior counsel.

186.  Mr. Leung explained during the Review Hearing that the time spent on senior and junior counsel for communication are separate, as can be compared by the schedule of communication.  I have been provided with details of the communication with junior counsel, with breakdown and supporting documents of all the letters and emails.  Considering the content, they are for the preparation of the appeal hearing.  I agree that some work can be delegated to TS/TS1, but in view of the background and circumstances of this case, it is not unreasonable for KC/KC1 to handle most of the communication.  It is not unreasonable to allow this item in full and I maintain my ruling.

Item 66.1

187.  For this item, TS1 claimed 2.5 hours in attending to comparing the revised draft appeal bundle index sent under the Applicant’s letter to the court with the index of the hearing bundle for the hearing on 27 May 2019.

188.  Mr. Tang submitted that the time claimed is unreasonable, as the draft appeal bundle index is straight forward and there is duplication of time allowed.

189.  Receiving Parties produced a one-page written note summarising the work done under this item.  In view of the different versions of appeal bundle index lodged by Mr. Tang, it is not unreasonable to engage a junior staff to compare the revised draft appeal bundle index to make sure everything is in order for further consideration by the handling solicitor.  I do not agree that there is duplication of work and it is not unreasonable to allow the time claimed.  I maintain my ruling. 

Item B1 B2

190.  I will consider item B1 B2 together.  For B1, the Receiving Parties claimed $360,000, being senior counsel’s brief for the preparation for and attendance at the hearing of the Appeal on 9 December 2020, which I allowed in full.  For B2, the Receiving Parties claimed $18,000 for B2.1, being counsel’s fees for preparing and settling Respondents’ Notice of Appeal and providing incidental advice, which I allowed in full.  For B2.2, the Receiving Parties claimed $150,000, being counsel’s brief fee for the attendance at the Appeal hearing on 9 December 2020, which I allowed in full.

191.  Mr. Tang submitted that :-

(a) no hours and hourly rates have been specified to justify a half-day appeal argument;

(b) no evidence to show that requirements under O.62, Part II, Section 2(1)(a) and (b) of the RHC has been satisfied; and

(c) master is invited to re-consider counsel fees in light of the “relevant circumstances” as set out in O.62, Part II, Section 1(2) of the RHC.

Mr. Tang proposed $200,000 for item B1 and $80,000 for item B2 in the LOO.

192.  As the hearing of the Appeal is heard in the Court of Appeal, 2 counsel is entitled, unless otherwise specified.  The leading counsel for the Appeal hearing is Mr. Anson Wong, SC, called to the bar in 1999 and the inner bar in 2014.  The junior counsel is Mr. Alan Kwong, called to the bar in 2008.

193.  When considering discretionary costs, including counsel fees, I have regard to all relevant circumstances, and in particular to the following :-

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

(b) the skill, specialized knowledge and responsibility required of, and the time and labour expended by, [the solicitor or] counsel;

(c) the number and importance of the documents (however brief) prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the importance of the cause or matter to the client;

(f) where money or property is involved, its amount or value; and

(g) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.

194.  In the Appeal proceedings, the Applicant has filed Notice of Appeal, Revised Notice of Appeal and Re-Revised Notice of Appeal.  Considering the grounds of Appeal, there were allegations that the Judge erred in law and/or wrong in factual determination, including whether the Judge erred in the determination concerning section 29 of the Ordinance.

195.  Further, Mr. Tang made serious allegation against the 2^nd Respondent in the proceedings, which the Court of Appeal noted in paragraph 6.14 of the Judgment dated 29 December 2020 :-

“6.14 In his 5th affirmation the applicant continued his allegation that the 2^nd respondent had been ‘cooking the books of and producing false accounts of Assen [ie. the 1^st Respondent]’. He referred to the ‘artificial valuation’ and ‘manipulation of an opaque auction’. He said there is clear evidence of ‘outright lies’ of the 2^nd respondent. He claimed the valuation reports obtained by the 2^nd respondent were procured to support the assertion that the value of shares in Assen is nil to support the pre-packaged auction sale at $9.2 million. The applicant used the words ‘Acts of perjury and contempt of Court’ in dealing with the conduct of the 2^nd respondent.”

196.  In the circumstances of these proceedings and in consideration of all the factors as stated in paragraph 193 above, it is not unreasonable to engage a senior counsel as experienced as Mr. Anson Wong, SC, and a junior counsel of the year of call of Mr. Alan Kwong.  The amounts in the briefs and fee notes claimed by both senior counsel and counsel are not unreasonable.

197.  Mr. Tang submitted, in particular in Ground 4 and Section E in the Revised Review Application that there was the apparent lack of contemporaneous evidence of there being any duly acknowledged receipt of fees by counsel at the Taxation Hearing, as required under O.62 Part II Section 2(1)(a) and (b) of RHC.

198.  There is no Part II under O.62 of RHC.  Mr. Tang confirmed at the Review Hearing that he meant O.62, First Schedule, Part II, paragraph 2(1)(a) and (b) of RHC, which provides that :-

“2(1) Except in the case of taxation under the Legal Aid Ordinance (Cap. 91) 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 counter seal is produced to him”

199.  The Receiving Parties had produced the briefs sent to both senior counsel and counsel, stating their respective agreed brief fees in the sums claimed for the Appeal hearing in the Bill of Costs, and fee notes of senior counsel and counsel have been considered and allowed at $360,000 and $150,000 respectively.  There was also fee note from counsel for the work done in the sum of $18,000, which was considered and allowed.  There is clear evidence of the amounts claimed having been agreed by the instructing solicitor before the Taxation Hearing.

200.  The Receiving Parties had also produced the fee notes singed by both senior counsel and counsel for the amounts in B1, B2.1 and B2.2 before the issue of the certificate for taxation.

201.  Mr. Tang’s submissions in Ground 3 and Section E of the Revised Review Application is without merit. I maintain my ruling for counsel fees under item B1 B2.

Item 70      

202.  For this item, KC claimed 1 hour 30 minutes for considering the affirmation for the application by Mr. Tang of varying the Costs Order Nisi.  I allowed KC 1 hour.

203.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, the time claimed is excessive.

204.  This is the affirmation in support of Mr. Tang’s application to vary the Costs Order Nisi, which is an important issue affecting the 2^nd to 4^th Respondents, as the costs awarded may be varied.  I am of the view KC’s consideration of this affirmation is proper.  As there are 8 pages of the affirmation, with 43 pages of exhibits, it is proper to allow KC 1 hour for this item and I maintain my ruling.

Item 72

205.  For this item, KC claimed 2 hours for considering the list of authorities of Mr. Tang for varying the Costs Order Nisi.  I allowed 1 hour.

206.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, the time claimed is excessive. 

207.  This application may affect the 2^nd to 4^th Respondents, as the costs awarded may be varied.  I am of the view KC’s consideration of the list of authorities is proper.  However, with KC’s seniority, the time in reading the 9 list of authorities, including one being the Judgment below,  of 1 hour is not necessary.

208.  In view of the 9 list of authorities, 8 of which are cases, amounting to a total of 136 pages, and counsel has been instructed, I allow the review of this item and I now rule that 30 minutes for KC is proper or necessary.

Item 86

209.  For this item, KC claimed 20 minutes for considering the letter of the Joint and Several Liquidators of the 1^st Respondent to the Court dated 26 February 2021, together with Statement of Costs (Revised) of a total of 7 pages.  I allowed 10 minutes.

210.  Mr. Tang submitted that this item is irrelevant and unreasonable, as it concerns the Statement of Costs of the 1^st Respondent.

211.  Reviewing the content of this letter, as it was also sent to H&A, it is proper for KC to read the letter.  This letter contains of 3 short paragraphs of less than half a page, with enclosures of Statement of Costs of 6 pages.  I agree with Mr. Tang that the content of the Statement of Costs of the 1^st Respondent is entirely irrelevant for consideration and I therefore allow the review and allow KC 1 minute in reading the letter, knowing that the enclosure need not be read at all.

Item 90.1

212.  For this item, KC claimed a total of 6 hours 29 minutes for the communication with the clients, which includes sub-items of :-

(a) item 90.1.1, drafting a long email of advice, claiming 1 hour 30 minutes;

(b) item 90.1.2, 22 emails out, claiming 3 hours 55 minutes; and

(c) item 90.1.3, 16 emails in, claiming 1 hour 4 minutes.

There was consent by the LCD at the Taxation Hearing for me to rule these sub-items together.  I allowed a total of 4 hours for item 90.1.

213.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, the time claimed is excessive.

214.  As this application to vary the Costs Order Nisi may affect the costs awarded for the 2^nd to 4^th Respondent, it is proper for KC to handle communication with the clients.  As Mr. Tang asked for, inter alia, varying the Costs Order Nisi from indemnity basis to party and party basis, which would involve the consideration of conduct and a number of factors and consideration, it is proper for KC to communicate with the clients, explaining the application, taking instructions and giving advice.  Considering the content of the emails, it is proper to allow 4 hours for the total for item 90.1 and I maintain my ruling.

Item 90.3.1

215.  For this item, KC claimed 1 hour for 4 letters written.  I allowed KC 45 minutes.

216.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, work involved is irrelevant.

217.  In view of the content of the 4 letters, they are relatively short, with a total of 6 pages.  As one of the letters contains citation of Practice Direction 4.1, which Mr. Tang had pointed out it runs to about half a page, I allow the review of this item.  I allow KC 30 minutes.

Item 90.4.1

218.  For this item, KC claimed 2 hours 30 minutes for communication with counsel, Mr. Alan Kwong. There were 10 letters or emails written, including 3 long emails.  I allowed 1.5 hours for KC.

219.  Mr. Tang submitted that work should have been delegated to junior staff.  Further, the time allowed is excessive.

220.  It is not unreasonable for the handling solicitor KC to handle the communication with counsel, including by letters and emails.  Considering the content of the letters, it is proper to allow KC 1.5 hours for writing those letters or emails.  I maintain my ruling.

Item 1 under Section B2

221.  For this item, the Receiving Parties claimed counsel fees of Mr. Alan Kwong for perusal of further affirmations and documents, and preparing written submissions in opposition to Mr. Tang’s application to vary the Costs Order Nisi pursuant to the summons dated 12 January 2021 in the sum of $95,000.  I allowed in full.

222.  Mr. Tang submitted that justification is required for the time and hourly rate for writing 8-page submissions (mostly factual and descriptive).

223.  By considering the content of the submissions, I cannot agree with Mr. Tang’s submissions.  The submissions from the Receiving Parties’ counsel set out the background and important facts of this case, which is necessary to explain why Mr. Tang should be personally liable for costs.  The submissions then go on to address the various points made by the counsel for Mr. Tang in the written submissions, and also refer to cases and authorities to support their stance.  3 list of authorities were provided.  In view of the work done by counsel, including perusal of affirmations and documents, and with the consideration of the all relevant circumstances and in particular to those as stated in sub-paragraphs (a) to (g) in paragraph 193 above. I am of the view that counsel fees in the sum of $95,000 is proper.

224.  For Mr. Tang’s challenge of counsel fees under Ground 4 and Section E, I repeat the summary of Mr. Tang’s submissions in paragraphs 197 and 198 above.

225.  The Receiving Parties had produced fee note from counsel for the work done in the sum of $95,000, which was considered and allowed.  There is clear evidence of the amount claimed having been agreed by the instructing solicitor before the Taxation Hearing.

226.  The Receiving Parties had also produced the fee note singed by counsel for the amount in item 1 under Section B2 before the issue of the certificate for taxation.

227.  Mr. Tang’s submissions in Ground 4 and Section E of the Revised Review Application are without merit. I maintain my ruling for counsel fees under item 1 of Section B2.

Orders  

228.  To summarise, the following items are allowed for this Review of Taxation :-

(a) Hourly rate of TS and TS1 under Part A, allow $1,700 for TS and $1,700 for TS1

(b) item 9, allow 20 minutes for KC

(c) item 13, allow15 minutes for KC

(d) item 14, allow 10 minutes for KC

(e) item 53.1, allow 20 minutes for KC1

(f) item 72, allow 30 minutes for KC

(g) item 86, allow 1 minute for KC

(h) item 90.3.1, allow 30 minutes for KC

Costs

229.  Costs should follow the event.  With my rulings above, Mr. Tang were successful in only 8 items, one of which is the hourly rate for TS and TS1.  The Receiving Parties should be regarded as substantially the winning party for this Review of Taxation and should be awarded costs. 

230.  Considering the number of items and amounts allowed at this Review of Taxation and subject to the costs order I had made for the Adjournment Application and Discovery Application on the Review Hearing on 2 March 2023 (refer to paragraphs 22 to 24 above), I ordered that Mr. Tang do pay the Receiving Parties 80% of the costs of the Review of Taxation, including the costs of the 2 call-over hearings on 20 July 2022 and 29 September 2022 on party and party basis and on nisi basis.

231.  At the Review Hearing, both Mr. Tang and Mr. Leung had agreed that costs are to be summarily assessed by the Court.  I further direct as follows :-

(a) The Receiving Parties do lodge with Court and serve on Mr. Tang their Statement of Costs for this Review of Taxation within 14 days after the aforesaid costs order nisi shall become absolute.

(b) Mr. Tang do lodge with Court and serve on the Receiving Parties his objections(s), if any, on the Statement of Costs within 14 days thereafter.

(c) Unless otherwise directed, the Court shall summarily assess the costs for this Review of Taxation by way of paper disposal.