LAM PUT v. TAI YIEH CONSTRUCTION AND ENGINEERING CO. LTD.

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J U D G M E N T

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1. This is an application for review of a taxation of costs. The only item with which the court is concerned is a disbursement; the fee of a medical witness, a Dr David T. Lee, for his attendance at court. The doctor's fee for his attendance (at the District Court in Wanchai from 9:30 am to 3 pm on 2nd April 1991, with a lunch break), was HK$17,500.

2. The taxing master taxed down this item to HK$7,500. Drawing on his experience over the last 6½ years of taxing bills of costs in Hong Kong, he described the fee of $17,500 as "at least exorbitant, if not extortionate".This is strong language; but, if justified, none the worse for that.

Was the taxing master right?

The material facts are as follows.

3. The case in which the doctor's fees were incurred was an employee's compensation case in the District Court. It was maintained on behalf of the employee by the Director of Legal Aid. During the course of preparation of the employee's case, the doctor had submitted two medical reports, dated respectively 28th March 1988 and 12th December 1990. He had been paid $2,000 for the first of these and $2,500 for the second.

4. Liability having been admitted, the case came on for hearing, on the issue of quantum, on 2nd April 1991. The doctor had been asked to and did attend. But he did not give evidence; for after the mid-day adjournment the parties compromised. One of the terms of compromise was that the employer should pay the employee's costs.

5. On the taxation of those costs the doctor's fees for his two medical reports were allowed in full. But objection was taken to the fee of $17,500 to which I have referred. The taxing master, as I have said, taxed this down to $7,500 and, on a review of that taxation, decided on 18th August 1991 to adhere to this.

6. The taxing master said that he had been told, on behalf of the Director of Legal Aid, that the Director had an agreement with particular doctors who appeared in compensation cases that they could charge at the rate of $3,500 per hour for their attendance at court. The taxing master said that, while he appreciated the difficulty in getting experienced doctors to attend court in compensation cases, he did not consider it to be proper that any such agreement should have been reached if the sole motive was to entice doctors to attend court by monetary reward.

7. The taxing master said that he had been told that, regardless of the sum allowed at the taxation or on the review, the doctor would have been paid the full amount charged, and any difference in the sum allowed on taxation or on the review of taxation would be recovered from or paid by the employee out of his compensation. The taxing master said that, in his opinion, this was a scandalous situation.

8. The taxing master said that it caused him particular concern that despite his ruling, the amount taxed off, $10,000, would be recovered from the employee regardless of any other considerations. He said that in such circumstances the employee's interest in the review was that if the sum allowed for the doctor's attendance at court was increased, the employer would have to pay the same and would be relieved to that extent of the responsibility of meeting the difference payable to the doctor. He said it was plainly wrong and inequitable for the doctor's fee to be made payable by the employee, even though he had taxed off $10,000 from it.

9. The Director of Legal Aid, dissatisfied with the decision of the taxing master, sought a further review. The relevant rules of court are as follows.

10. Rule 9 of the District Court Civil Procedure (Costs) Rules provides that:-

"There may be allowed on taxation in respect of the attendance of parties and of witnesses such reasonable amounts as the Registrar thinks fit."

(The reference to the Registrar is a reference to the Registrar of the District Court.) Rule 3 of the same Rules provides that:-

"Subject to these rules and to necessary modifications, the provisions of the Rules of the Supreme Court relating to taxation of a bill of costs shall apply to a taxation of costs of proceedings in the [District] Court".

Order 62, rule 33(1) of the Rules of the Supreme Court provides that:-

"Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by a taxing master, or with the amount allowed by a taxing master in respect of any item, may apply to the taxing master to review his decision in respect of that item."

Order 62, rule 34(2) provides that:-

"On reviewing any decision in respect of any item, a taxing master may receive further evidence and may exercise all the powers which he might exercise on an original taxation in respect of that item ....".

Order 62, rule 35(1) provides that:-

"Any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under rule 33 or 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item .....".

Order 62, rule 35(4) provides that:-

"Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule .....".

Order 62, rule 35(5) provides that:-

"If the judge thinks fit to exercise in relation to an application under this rule the power of the court to appoint assessors under section 53 of the [Supreme Court] Ordinance, the judge shall appoint not less than two assessors, of whom one shall be a taxing master."

11. The Director of Legal Aid's application for a further review, by the judge, of the taxing master's decision was initiated by a summons dated 29th August 1991.  On 12th September 1991 the summons came on before His Honour Judge Wesley Wong, a Judge of the District Court, in Chambers. The Judge's note reads as follows:-

"Master's grade is higher. I know it is not so in other jurisdiction. That is why there is this Order 62, rule 35. It would be embarrassing if after the hearing I were to reverse his decision. I think it would be proper in the circumstances to transfer it to a High Court Judge".

12. I find this impossible to understand. The reason why O.62, r.35 is to be found in the Rules of the Supreme Court in Hong Kong is because the same provisions are to be found in the Rules of the Supreme Court in force in England and Wales. It is not because "master's grade is higher". Puzzled by this misapprehension, I have caused enquiries to be made and have found, to my considerable surprise, that there is indeed a widespread belief in Hong Kong that, in .the judicial hierarchy, assistant registrars of the Supreme Court (of whom the taxing master here was one) have, somehow, recently assumed a higher rank than the Judges of the District Court. However, there seems to be no primary or secondary legislation having this result. The only ground for this curious belief which I have been able to identify is that, by reason of some recent, but apparently little-noticed, adjustment to the Civil Service pay scales, the rewards which the registrar of the Supreme Court (and his deputies and assistants) receive for their labours now apparently exceed those payable to the Judges of the District Court. How this can have been allowed to happen is not my concern. My only concern is that the judicial process should not be allowed to be distorted in the way it has been distorted here. A Judge of the District Court is appointed, like a Judge of the Supreme Court, under the provisions of Article XVIA of the Letters Patent applicable to the Colony of Hong Kong, as a Judge of a court of record (see s.3 (2) of the Distrct Court Ordinance, Cap.336) with the security of tenurs conferred on him by that Article, and it is constitutionally unacceptable for him to regard himself as inhibited from reviewing any decision of the registrar of the District Court (which, for this purpose, includes a decision of an assistant registrar of the Supreme Court acting as a registrar of the District Court under the provisions of s.14(4) of the District Court Ordinance). It follows that the decision of the Judge, which was to transfer the review to the High Court, was misguided; but here it is.

What must now be done with it?

13. I do not have sufficient materials before me to decide whether the taxing master was right or wrong to tax down to $7,500 the doctor's fee for his attendance at Court. Under O.62, r.34 (2) the taxing master could have received further evidence about the level of doctors' fees if he had been asked to do so or had called for it. But he did not in fact have the benefit of any such evidence. He relied on his own experience. I myself have no comparable experience. I do have power, under O.62, r.35, to give directions which would enable me to receive further evidence. But since no such evidence was before the taxing master, and an objection was understandably taken before me to my receiving any further evidence, I do not think I ought to give any such directions.

14. I have come to the conclusion that the right course to take, in order to arrive at a proper resolution of this obviously important point, is for me to exercise the power I have under O.62, r.35 (3), to call to my aid assessors to be appointed under s.53 of the Supreme Court Ordinance (Cap.4). One of these must be a taxing master, as O.65, r.35 (5) provides. The other should in my opinion be a practising solicitor; compare the corresponding O.62, r.35 (5) in the Rules of the Supreme Court in force in England and Wales.

15. I shall order accordingly, and give such further directions as may be required for the further hearing of this review before me and the two assessors so appointed.