LPC v. CKHA

CACV 304/2022

[2022] HKCA 1715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 304 OF 2022

(ON APPEAL FROM FCMC NO. 4670 OF 2019)

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DECISION

ASSESSMENT OF COSTS

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Hon Chu VP (giving the decision of the Court):

1.  On 13 October 2022, this Court handed down our judgment ([2022] HKCA 1512) dismissing the application of the respondent to vary the costs order nisi given on 17 August 2022[1] with costs to be summarily assessed. We also gave directions for the lodging of statement of costs and statement of objection.

2.  The petitioner filed her statement of costs on 20 October 2022, claiming a total sum of $136,150, of which $60,000 is counsel fee and the balance represents solicitors’ costs and disbursements.  On 28 October 2022, the respondent filed his statement of objection.  The first part made general objections to the petitioner’s statement of costs while the second part raised objections to the individual items of costs.

3.  In assessing the petitioner’s costs, we have taken into account the following:

(1)  The costs are assessed on party-and-party basis such that all costs that are necessary or proper for the attainment of justice or for enforcing the claiming party’s rights will be allowed.  It follows that while the amount of time spent on an item of work may be considered as reasonable and justified on solicitor-own-client basis of assessment, it will have to be reduced inter-partes if it is considered excessive on party-and-party assessment.

(2)  The application to vary the costs order nisi is a small application that has a short duration and involve a small volume of documents.  Notably, the written submissions are short and do not involve complex arguments or law. 

(3)  Having regard to (1) and (2) above, we consider the time incurred on attending client or counsel (items C1 and C2) and perusal and consideration of documents (item D2) is excessive and should be reduced.  There is also no justification for attendance by litigation clerk (item B2) to be claimed on time basis.    

(4)  That having been said, we do not accept that the hourly rate of the fee earner, Mr Suen, should be reduced, given that it is proper and necessary to involve him as he is the handling solicitor and the variation application is a part of, and flows from, the appeal.  The fact that counsel had been instructed is to be reflected in the amount of time allowed.

(5)  A certificate of two counsel is not a prerequisite for a party to an appeal to seek the costs of two counsel.  In view of the fact that two counsel were instructed by both sides in the application for leave and the appeal, the petitioner’s engagement of two counsel cannot be said to be improper or excessive.

4.  In light of the above considerations, and taking a broad-brush approach, we have assessed the petitioner’s costs of the application at $90,000.