TAI TSZ LUNG v. LAU YUEN FUNG t/a LING FU ENGINEERING CO AND ANOTHER

DCEC 583/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 583 OF 2016

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DECISION ON COSTS

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A.  INTRODUCTION

1.  On 6 January 2017, I granted leave to the applicant to withdraw his summons applying for leave to amend the application by adding a new party, Lixil Corporation (“Lixil”), as the 3^rd respondent in these proceedings, and ordered the applicant to pay the 1^st and 2^nd respondents and Lixil the costs of the summons. I further directed summary assessment of those costs.  After summarily assessing the costs of the 1^st respondent who appeared in person, I adjourned the summary assessment of the costs of the 2^nd respondent and Lixil to be disposed of on paper without a hearing

2.  The 2^nd respondent and Lixil had lodged their statements of costs for summary assessment, and the applicant alsolodged his statements of objections.

B.  THE COSTS OF THE 2ND RESPONDENT

3.  In its costs statement, the 2^nd respondent claims a total amount of $14,963 for its costs.

B.1  Item A4: Fee earners’ hourly rate

4.  The fees earners consist of the principal (admitted in 1987), and two assistant solicitors (“AS”) (respectively admitted in 2015 and 2016). The principal charges $2,600 per hour and the two AS charge $1,280 at the District Court scale, which are the rates usually allowed on a party-and-party taxation respectively for a qualified fee earner with 10 or more years of post-qualification experience and for a newly admitted solicitor.    I do not agree with the applicant’s argument that the costs of the AS should be respectively capped at $1,173 and $1,066 per hour and consider the rate of $1,280 for the AS reasonable and allow the rate as claimed.

B.2  Item B1: Photocopy charges

5.  Order 62, First Schedule, Part I, Item 1A of the Rules of the District Court (Cap.336H) prescribes $1 per page for copying of documents.  The 2^nd respondent claims $33 as photocopying charges for 11 pages of documents. The applicant objects to it and suggests that the charges should be $11. I agree. Thus the charges at $1 per page should therefore be $11.

B.3  Item C1: Attendance on the 2^nd respondent

6.  The 30 minutes at $1,300 are claimed for one letter written by the principal to the 2^nd respondent. Given the fact that the 2^nd respondent did not seem to have taken any active role in relation to the summons, I’d be inclined to think that 30 minutes spent by an experienced principal is excessive for the reason that it would have likely been a simple update given to the 2^nd respondent in relation to the applicant’s summons.  However, I reject the applicant’s suggestion of 5 minutes, and consider 20 minutes be more reasonable. I therefore allow $867 for this item.

B.4  Item C2: Attendance on the applicant

7.  The principal charges $5,200 for the 2 hours spent on 2 letters from and 5 letters written to the applicant’s solicitors.  For similar reasons as above, I consider that those letters would have unlikely been complicated, and that the 2 hours claimed is excessive.  Yet, the 5 minutes suggested by the applicant is unrealistic and thus rejected.  I consider 1 hour being a reasonable time, and allow $2,600 for this item.

B.5  Item D1: Perusal of documents

8.  A total of 45 minutes are claimed for perusing the applicant’s supporting affirmation and Lixil’s affirmation in opposition.   Given the stance of the 2^nd respondent, which was neutral, I regard 45 minutes to be excessive.  and consider 30 minutes to be a reasonable amount of time spent. Thus, I allow $1,300 for this item.

B.6  Item D2: Hearings

9.  A total of 30 minutes is being claimed for each of the hearings attended by the principal on 28 October 2016 and one of the AS on 6 January 2017.  As for the costs of the hearing on 28 October 2016, the court made no order as to costs. Thus, no costs should be allowed. As for the hearing on 6 January 2017, the hearing lasted for about 15 minutes. Thus, I allow $320 for the hearing on 6 January 2017.

B.7  Item D3: Research

10.  A total of 2 hours is being claimed for the research conducted by the principal.  Since the summons was not directly concerned with the 2^nd respondent, I do not consider it necessary for the principal to have been required to spend any time in doing legal search.  I therefore disallow this item of charge.

B.8  Conclusion

11.  In conclusion, the costs of the 2^nd respondent on the applicant’s summons are assessed at $5,098. The breakdown is as below:

Item	Description	Time allowed	Amount allowed (HK$)
A4	Hourly rate of fee earners: principal @ $2,600, AS @ $1,280
B1	Photocopying charges		11
C1	Attendance on 2nd respondent	20 minutes	867
C2	Attendance on applicant	60 minutes	2,600
D1	Perusal of documents	30 minutes	1,300
D2	Hearings	15 minutes	320
D3	Research	nil	0
	Total		5,098

C.  THE COSTS OF LIXIL

12.  In its costs statement, Lixil claims a total amount of $42,160 for its costs.  The applicant does not object to the hourly rate of the fee earner, TBK, of $2,600 and item B in the amount of $194 which Lixil claims for its manual work.

C.1  Item C1: Attendance on Lixil

13.  Lixil claims 1 hour 15 minutes for 2 conferences TBK held with Lixil and 2 hours 30 minutes for emails and telephone calls TBK had with Lixil. The applicant contends that the attendance on Lixil should have been by a junior solicitor of less than 2 years of post-qualification experience rather than by TBK who has more than 10 years of post-qualification experience. The applicant’s application to join Lixil after the limitation period had expired was a very important application to Lixil. It is necessary in my view for a more experienced solicitor such as TBK to attend to Lixil to give advice to and take instructions from the latter.  I do not consider it reasonable for a junior solicitor to have undertaken such task.  Having regard to the fact that the facts relied on by Lixil set out in the affirmation in opposition are not complicated, I consider that the total time of 3 hours and 45 minutes claimed by TBK is excessive. A reasonable time would be about 3 hours.  I therefore allow $7,800 (i.e. $2,600 x 3) for this item.

C.2  Item D1: Preparation of /drafting documents

14.  TBK claims (i) 3 minutes for preparing a “Notice to Act”, (ii) 5 hours 48 minutes for drafting, revising and settling the affirmation in opposition, (iii) 2 hours for preparing the statement of costs and (iv) 2 hours 30 minutes for conducting research on case law.

15.  As for (i) the “Notice to Act”, it should have been drafted by a legal clerk. Thus, I consider $33 to be reasonable (at the hourly rate of $650 for a legal clerk).  Insofar as (ii) is concerned, the time incurred in relation to the affirmation in opposition, I do not accept the applicant’s contention that it should have been drafted by a junior solicitor.  I consider it proper and necessary for TBK to have undertaken the entire task of preparing the affirmation in opposition. That notwithstanding, I regard the time claimed excessive.  A reasonable time would have been 2 hours 30 minutes.  Thus, I allow $6,500 for this item.

16.  I do not regard it as reasonable for Lixil to charge for the costs of preparing the costs statement.  No costs should be allowed despite the suggestion by the applicant to allow $400 for the costing clerk.

17.  Lastly for legal research, I accept the applicant’s submission that it is reasonable that it be done by a junior solicitor at the hourly rate of $1,280.  I would allow 1 hour for the legal research.  Hence, the amount I allow is $1,280.

18.  For this item, a total amount of $7,813 is allowed.

C.3  Item D2: Perusal of documents

19.  A total of 1 hour 30 minutes is claimed for the perusal of various documents by TBK.  The documents that required the most attention would have been the summons and the affirmation in support.  The other documents consisting of orders and directions are simple documents. One hour in total by TBK in my assessment is reasonable. Thus, I allow $2,600 for this item.

C.4  Item D3: Preparation for hearing

20.  A total of 15 minutes is being claimed for the preparation by TBK. The time claimed is reasonable, I allow the amount of $650 claimed in full.

C.5  Item D4: Attendance on hearing

21.  A total of 15 minutes is claimed by TBK. Since TBK was obviously the handling solicitor for this matter, I regard it proper and necessary for TBK rather than a junior solicitor to attend the hearing as the applicant suggested.  Thus, I allow $650 in full.  

C.6  Item E: Other disbursements

22.  A total of $105 is claimed for affirmation fee and travelling, photocopying and miscellaneous charges.  General disbursements are not allowed in a party-and-party taxation.  Thus, apart from photocopying charges which are fixed at $1 per page, no other charges should be allowed.  Since Lixil has not stated the number of pages it had photocopied in relation to the summons, I can only assess the amount by reference to the documents it had filed with the court. The total number of pages, according to my counting, is 14 pages.  Thus, I allow $14 for this item.

C.7　Conclusion

23.  In conclusion, the costs of Lixil on the applicant’s summons are assessed at $19,721. The breakdown is as below:

Item	Description	Time allowed	Amount allowed (HK$)
A4	Hourly rate of fee earner @ $2,600
B1	Manual Work		194
C1	Attendance on Lixil	3 hours	7,800
D1	Preparation of/drafting documents	2 hours 30 minutes (plus 3 minutes @ hourly rate of $650)	7,813
D2	Perusal of documents	1 hour	2,600
D3	Preparation for hearing	15 minutes	650
D4	Attendance on hearing	15 minutes	650
E1	Affirmation fee, travelling, photocopying and miscellaneous charges		14
	Total		19,721