TAM LI KAM WAH AGNES v. WONG PUI HANG WILLIAM AND ANOTHER

HCPI 117/2017

[2022] HKCFI 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 117 OF 2017

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DECISION ON ASSESSMENT OF COSTS

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I.  INTRODUCTION

1.  On 6 February 2017, the plaintiff (“P”) commenced the present action against the personal representative of Wong Ian Yik, deceased as the sole defendant. On the same day, P filed her statement of claim, statement of damages and medical reports. By the order of Master Leong dated 15 March 2017, Wong Pui Hang William (黃佩恆), the administrator of the estate of Wong Ian Yik, deceased was appointed to represent such estate for the purpose of carrying on the present action, and the present action was to be carried on by Wong Pui Hang William (黃佩恆) as the 1^st defendant (“D1”). Consequently, the writ of summons, the statement of claim and statement of damages were amended to so name D1.

2.  By the order of Master Leong dated 17 July 2017, Liberty International Insurance Limited was granted leave to join as the 2^nd defendant (“D2”) to defend P’s claim in the present action as if it were D1. On 28 August 2017, D2 filed its defence. On 25 September 2018, P filed her reply to D2’s defence.

3.  On 27 October 2017, P entered interlocutory judgment against D1 for damages to be assessed in default of any notice of intention to defend (“1^st Judgment”). On 5 January 2018, D2 filed a summons to set aside the 1^st Judgment. On 25 June 2018, by consent between the P and D2, Master Roy Yu set aside the 1^st Judgment, and awarded costs of and occasioned by D2’s summons filed on 5 January 2018 (including D2’s costs of the call-over hearing of such summons and of the consent application for disposal of such summons) in favour of D2 against P in any event to be taxed if not agreed.

4.  On 4 October 2018, P filed a summons to seek leave to adduce psychiatric expert evidence on quantum in respect of P’s personal claim. On 18 March 2019, P filed a summons for leave to amend such summons to seek leave to adduce psychiatric expert evidence on both liability and quantum in respect of P’s personal claim. On 20 March 2019, Master Grace Chan granted (a) leave for the plaintiff to amend her summons filed on 4 October 2018, (b) leave for the parties to adduce psychiatric expert evidence on both causation and quantum limited to 1 psychiatric expert for each party, and (c) consequential case management directions. Master Grace Chan also summarily assessed costs in respect of the summons filed on 4 October 2018 in favour of P against D2 to be paid forthwith, but summarily assessed costs in respect of the summons filed on 18 March 2019 in favour of D2 against P to be paid forthwith. On 8 May 2019, Master Grace Chan granted expert directions for inter alia obtaining joint psychiatric expert report to be compiled by the plaintiff’s and the 2^nd defendant’s psychiatric experts, and she also granted case management directions for further conduct of the present action.

5.  On 1 November 2017, 2 October and 21 November 2018, 14 March 2019, 10 March, 9 March and 9 September 2020, 22 November 2021 and 10 February 2022, P filed her list of documents and 1^st, 2^nd, 3^rd, 4^th, 5^th, 7^th, 8^th and 9^th supplemental lists of documents. On 9 June 2018, D2 filed its list of documents.

6.  In the meantime, P served her own witness statement and that of her daughter Tam Ellen Maria Yuen Yee, and D2 served the witness statement of Chan Sze Wan.

7.  On 22 November 2019, P filed her revised statement of damages and P’s 1^st supplemental witness statement. On 24 January 2020, D2 filed its answer to P’s revised statement of damages.

8.  On 9 March 2020, D2 filed request for answers to quantum-related interrogatories. On 5 June 2020, P filed her answer to such interrogatories.

9.  By a consent summons filed on 7 January 2021 (“Consent Summons”), P and D2 sought an order by consent that:

10.  By written directions dated 8 January 2021, the parties were informed that this court was not prepared to deal with the Consent Summons between P and D2 (without involving D1) by way of paper disposal, and directed P to make proper application to the court.

11.  On 8 December 2021, P filed (a) an inter partes summons to seek reliefs similar to those in paragraph 9(a)-(c) above (“Summons”) pursuant to Order 19 rule 3 of the Rules of the High Court (“RHC”), Order 14 rule 1 of the RHC and inherent jurisdiction of the court, and (b) the affidavit of P’s solicitor Lau Cho Keung Joe (“JL”) in support of the Summons (“JL 1^st Aff”).

12.  After (a) describing the subject traffic accident as a result of which Wong Ian Yik, deceased suffered fatal injuries, (b) canvassing the merits of P’s claim on the issue of liability, (c) describing the procedural history of the present action, and (d) describing the negotiations between P and D2 on the issue of liability, the JL 1^st Aff claimed as follows:

“32. We would submit that [D1] has indicated clearly that he is not going to defend the case and therefore, he has not taken any step in the proceedings. Further, but for [D2’s] application, Interlocutory Judgment in default of Notice of Intention to Defend against the 1^st Defendant would not have been set aside. As it had been set aside, we are not able to reapply for Interlocutory Judgment in default of Notice of Intention to Defend under Order 13 rule 2 RHC again. However, since the Writ, Statement of Claim and related documents had been served to [D1], who failed to serve a defence after the expiration of the period fixed by [the RHC], and [D1] has clearly expressed an intention not to defend the case, we hereby apply for Interlocutory Judgment in default of defence under Order 19 rule 3 RHC against [D1]. Given the fact that [P] and [D2] has agreed that [D2] on behalf of [D1], would admit 85% liability, the same percentage should also apply to the Interlocutory Judgment on liability against [D1].

33. Further or in the alternatively, if [D2] insisted that it had already filed a Defence on behalf of [D1] (which we do not agree because the Order dated 17 July 2017 only gave [D2] the right to defend as if it is [D1], but not to file a Defence on behalf of [D1]), the Court may also consider to give summary judgment against [D1] in favour of [P] under Order 14 rule 1 RHC. We verily believe that there is no triable issue and no defence on the part of [D1] regarding the fatal claim of [P] as set out in [P’s] Summons.

34. In light of the preceding paragraphs, [JL] respectfully pray this Honourable Court to make an Order in terms of [P’s] Summons.”

13.  On 6 January 2022, D2 filed the 3^rd affidavit of its solicitor Wu Tung Wah (“Wu 3^rd Aff”). Apart from pointing out a discrepancy between the wording of the reliefs sought in the Consent Summons and in the Summons (whereby some words in the former were omitted in the latter), the Wu 3^rd Aff canvassed the correspondence that passed among the parties in the year between my written directions dated 8 January 2021 (see paragraph 10 above) and the Summons filed on 8 December 2021 (see paragraph 11 above). The Wu 3^rd Aff further complained that the JL 1^st Aff unnecessarily contained extensive legal submissions, canvassed at length the procedural history of the present action, and exhibited many documents (including court documents already filed in the present action) on the issue of liability, and that P caused confusion by raising contentions that relied on Order 19 rule 3 and Order 14 rule 1 of the RHC:

“19. In view of the confusion mentioned in [the JL 1^st Aff], we must point out that Master Leong has made an Order on 17 July 2017 that leave be granted to [D2] to defend [P’s] claim in this action as if it is [D1] (“the Order dated 17 July 2017”). Accordingly, pursuant to the Order dated 17 July 2017, [D2] filed and served the Defence of [D2] on 28 August 2017.

20. In paragraph 33 of the [JL 1^st Aff], [JL] stated that [D2] had no right to file its Defence on 28 August 2017 despite the Order dated 17 July 2017. He suggested that [P] can obtain Summary Judgment or Default Judgment against [D1].

21. I respectfully submit that these are on the wrong basis. I am obliged to state the fact that regarding the proposed settlement terms set out in [P’s] Summons filed on 8 December 2021, they have been agreed by [P] and [D2] upon [P’s] acceptance of [D2’s] sanctioned offer on the issue of liability. [JL] also confirms in paragraph 28 of the [JL 1^st Aff] that it was the case. The without prejudice letters exchanged between [P] and [D2] showing [P’s] acceptance of [D2’s] sanctioned offer can be produced to the Court subject to the Court’s direction.

22. I respectively submit that pursuant to the Order dated 17 July 2017, [D2] being the motor insurer of [D1] has the right to deal with and agree for and on behalf of [D1] on the issue of liability and quantum of this action, provided that sufficient notice has been given to [D1] for the proposed terms of settlement and that [D1] has been given the opportunity to disagree with the proposed settlement if he so wishes.

23. Upon [P’s] acceptance of [D2’s] sanctioned offer, and with evidence that [D1] has been notified of the proposed settlement terms and with his indication of not giving any response to the proposed settlement terms, I respectively submit that this Honourable Court may make an Order in terms of the agreed terms of settlement by virtue of Order 22 rule 22(5) of the [RHC] or by exercising its case management power under Order 1B of the RHC or the inherent jurisdiction.

24. In view of the misconception of law shown in [the JL 1^st Aff] and having considered the substantial amount of submissions stated in [the JL 1^st Aff] and the large amount of exhibits enclosed therein being not helpful and unnecessary for the purpose of [P’s] application, I would respectfully submit that substantial amount of costs has been unnecessarily incurred by [P] in making [the JL 1^st Aff] and it is unfair to require [D2] to bear such costs.”

14.  On 11 January 2022, P filed JL’s 2^nd affidavit in reply (“JL 2^nd Aff”). The JL 2^nd Aff corrected certain typographical errors in the JL 1^st Aff, agreed with the wording of the reliefs sought as D2 suggested, and explained P took a long time to file the Summons because of “the unreasonable objection on the part of [D2], and the related research work on the law”. It was said P had queried whether D2 had authority to sign the Consent Summons on behalf of the court, a view echoed in this court’s written directions dated 8 January 2021, and had proposed to D2 for interlocutory judgment on terms as set out in the Consent Summons to be entered against D2, which D2 refused. After P and D2 signed the Consent Summons which was filed on 7 January 2021 and this court by the written directions dated 8 January 2021 declined to deal with the Consent Summons, P’s solicitors “conducted research on how [they] could enter Judgment against [D1]”, and on 17 May 2021 proposed to D2’s solicitors that P could use the Consent Summons to obtain judgment against D2 and P could apply for default judgment against D1 for failure to give notice of intention to defend. By their letter dated 1 June 2021, D2’s solicitors opposed P entering interlocutory judgment against D1 again for default of notice of intention to defend (without citing any legal authority), but did not suggest under what procedural rule P could enter interlocutory judgment against D1. P’s solicitors were of the view that Order 22 rule 22(5) of the RHC and Order 1B of the RHC as raised by D2 would not enable P to enter default judgment against D1 because (a) D1 was not party to the sanctioned offer under Order 22 of the RHC, and (b) Order 1B of the RHC did not have relevant provisions for entering judgment against D1. JL claimed that after “further extensive research” P’s solicitors took the view that P could apply for default judgment against D1 for failure to file and serve a defence under Order 19 rule 3 of the RHC (instead of Order 13 rule 2 of the RHC that P relied upon for entering the 1^st Judgment against D1), and it was “wrong for [D2] to say that because [D2] was given the right to defend the case as it is [D1] (see the Order of Master Leong dated 17 July 2017), and because there was settlement agreement between [P] and [D2], then the Court can give Judgment against [D1]”. JL contended P could alternatively rely on Order 14 rule 1 of the RHC to enter summary judgment against D1. Since there was no reply from D1 after service of the Summons and the JL 1^st Aff on D1, JL urged the court to grant the reliefs sought.

15.  D1 did not appear at the hearing of the Summons on 14 January 2022 (“Hearing”). Indeed, D1 in the present action had not (a) filed any acknowledgment of service, given notice of intention to defend and/or served any defence, (b) appeared at any hearing to oppose P’s claims or at all, and/or (c) taken part in any proceedings in the present action.

16.  In my view, given D2’s consent (as evident from the Consent Summons and the Wu 3^rd Aff – see paragraphs 9 and 13 above), there was no reason why the court should not grant interlocutory judgment against D1 on P’s FAO and LARCO claims on terms in paragraph 24(a) below upon P conceding 15% contributory negligence. Nevertheless, both P and D2 erred in their contentions as to the underlying basis for so entering interlocutory judgment against D1 for 85% liability for P’s FAO and LARCO claims, which contentions reflected a misunderstanding of their respective roles vis-à-vis D1.

17.  Turning first to D2, since D2 as motor insurer repudiated liability under the relevant insurance policy, D2 stood in a position of conflict of interest vis-à-vis D1 and could not have represented or acted on behalf of D1 in the present action. D2 could only have represented or acted on behalf of D1 in the action pursuant to its rights under the relevant insurance policy, so had D2 done so, D2 would have affirmed the relevant insurance claim which would have been contrary to its repudiation thereof. This explained why D2 did not appoint solicitors to act on behalf of D1 in the present action. However, despite D2’s repudiation, it remained liable under section 10 of the Motor Vehicles Insurance (Third Party Risks) Ordinance Cap 272 (“Ordinance”) to satisfy judgments against the person insured (ie D1) in respect of third party risks. By reason of such statutory liability, D2 (irrespective of its repudiation of the relevant insurance claim) had an independent interest as motor insurer to participate in the present action and (if it saw fit) to contest P’s claims, and hence on 17 July 2017 Master Leong allowed D2 to independently join the present action as an interested party but not to represent and act on behalf of D1. It must be remembered that D2 was not any tortfeasor, and P had no claim at all against D2. P’s claims were against D1 alone, so if P were successful in her claims against D1 in the present action, D2 would have a statutory obligation to satisfy P’s judgment against D1 as tortfeasor irrespective of D2’s repudiation of liability vis-à-visD1. This was why Master Leong by his order dated 17 July 2017 allowed D2 to defend P’s claim in the present action as if it were D1 (and not to represent and/or act on behalf of D1).

18.  Once the matters referred to in the above paragraph were properly understood, it was plain that D2 did not file its defence for and on behalf D1, but rather that it filed its own defence to defend P’s claims against D1 in order to protect its own interest in view of its own statutory liability to satisfy any judgment by P against D1 in the present action. Any sanctioned offer by D2 must also be understood in such light. Having repudiated liability, D2 had no “right to deal with and agree for and on behalf of [D1] on the issue of liability and quantum of this action” as suggested in the Wu 3^rd Aff, and giving D1 notice of proposed terms of settlement and opportunity to disagree would not have given D2 such right. In the circumstances, Order 22 rule 22(5) of the RHC would not have conferred any right for P to enter judgment against D1. Likewise, Order 1B of the RHC also would not have conferred on P any such right, and the Wu 3^rd Aff did not explain which provision in Order 1B of the RHC would have conferred such right.

19.  Turning now to P, this court at the Hearing had debated whether Order 14 rule 1 of the RHC would, as the JL 1^st/2^nd Affs suggested, ground interlocutory judgment against D1. On more mature reflection, this court now considers Order 14 rule 1 of the RHC would not assist. Order 14 rule 1(1) of the RHC provides as follows:

“Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.” (my emphasis)

Since D1 had not filed any acknowledgment of service to give notice of intention to defend, Order 14 rule 1 of the RHC was quite inapplicable.

20.  I am also not persuaded by P’s reliance on Order 19 rule 3 of the RHC to suggest she could enter default judgment against D1 for failure to serve a defence. The key question is whether D1 failed to serve his defence. Order 18 rule 2(1) of the RHC provides as follows:

“…… a defendant who gives notice of intention to defend an action must, unless the Court gives leave to the contrary, serve a defence on every other party to the action who may be affected thereby before the expiration of 28 days after the time limited for acknowledging service of the writ or after the statement of claim in served on him whichever is the later.” (my emphasis)

Plainly, a defendant is required to serve a defence only of he gives notice of intention to defend the action. Here, D1 did not file any acknowledgment of service to give notice of intention to defend, so he was not required to file a defence, and hence could not be said to have failed to do so. On such basis, Order 19 rule 3 of the RHC was not applicable.

21.  In my view, since D1 did not give notice of intention to defend, the applicable rule would be Order 13 rule 2 of the RHC, which provides as follows:

“Where a writ is indorsed with a claim against a defendant for unliquidated damages only, then, if that defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time, enter interlocutory judgment against that defendant for damages to be assessed and costs, and proceed with the action against the other defendants, if any.”

Although P tentatively raised this procedural rule to ground her application for interlocutory judgment against D1, P (in face of D2’s objections) considered she could not re-apply for interlocutory judgment against D1 under Order 13 rule 2 of the RHC when the 1^st Judgment dated 27 October 2017 (see paragraph 3 above) was set aside upon consent between P and D2 by Master Roy Yu on 25 June 2018 (see paragraph 3 above). I am unable to understand such inhibition, especially as Order 13 of the RHC did not contain any express prohibition. Further, a simple example could illustrate this point. For example, a plaintiff might have inadvertently served the “writ …… endorsed with a claim against a defendant for unliquidated damages only” to a wrong address, and being then unaware of such error entered default judgment against the defendant under Order 13 rule 2 of the RHC, but it was later set aside when service of the writ to the wrong address was discovered. In my view, it would be illogical and would in fact fly against the spirit of Order 13 of the RHC (meant to provide for summary disposal of legal claims in the absence of intention to defend by the defendant) if, after having re-served the writ to the defendant’s correct address and the defendant not having filed any notice of intention to defend or participated in the proceedings at all, the plaintiff would not be able to re-enter default judgment against the defendant under Order 13 rule 2 of the RHC, and instead would be constrained to proceed to trial so as to seek judgment against the defendant.

22.  Here, the 1^st Judgment against D1 entered on 27 October 2017 was set aside because by then D2 had already filed its defence on 28 August 2017 to defend P’s claim as if it were D1 (see paragraph 2 above). If the 1^st Judgment were not set aside, D2 would be bound by such judgment and would have to satisfy any damages assessed by the court in due course pursuant to section 10 of the Ordinance. This could not be right where D2 had filed a defence to contest all issues of liability, causation and quantum for opposing P’s claims in the present action. Hence, the 1^st Judgment against D1 entered on 27 October 2017 was set aside by consent between P and D2 on 25 June 2018.

23.  But the present action had progressed and developed since then. D2 made its sanctioned offer, and P and D2 reached understanding on 85% liability on the part of the tortfeasor (ie D1) for P’s FAO and LARCO claims, which was the equivalent of P conceding 15% contributory negligence on the part of Tam Michael Arthur Siu Cheung, deceased. Once P and D2 reached such understanding, D2’s defence on the issue of liability against P’s FAO and LARCO claims fell away, and cleared the way for P to re-apply for default judgment against D1 pursuant to Order 13 rule 2 of the RHC on the basis of (a) P conceding 15% contributory negligence as aforesaid, (b) D1 not having given notice of intention to defend, and (c) D2 not resisting default judgment against D1 on such basis.

24.  Thus, at the Hearing on 14 January 2022, this court granted inter alia the following order (“Order”):

25.  On 24 January 2022, P filed her statement of costs. On 28 January 2022, P filed the 6^th affirmation of service by Wong Chi Wai Dominic that verified service of my order dated 14 January 2022 and P’s statement of costs dated 24 January 2022 on D1 by ordinary post to his usual or last known address. On 7 February 2022, D2 filed his statement of objections. To date, D1 had not lodged any statement of objections.

26.  The proper approach to summary assessment of costs has been laid down by the Court of Appeal in Poon Shu Fan v Wong Tin Yan [2012] 5 HKLRD 512. For present purpose, it is sufficient to refer to the useful summary in the headnote of the reported judgment at pp 512 – 514 as follows:

“(2) As in an ordinary taxation, under O.62 r.28(2) of the Rules of the High Court (Cap.4A) (the RHC), in a summary assessment, party-and-party costs were allowed only if they were ‘necessary or proper’ for the attainment of justice or for enforcing or defending the rights of the receiving party. Pursuant to Practice Direction 14.3, the court adopted a broad-brush approach to ensure the final figure assessed was not disproportionate and/or unreasonable having regard to the nature and circumstances of the application or matter and the underlying objectives stated in O.1A of the RHC, even if there was no challenge to individual items. ……

(3) A summary assessment required a two-stage approach. If total costs claimed appeared proportionate, then all that was normally required was that each item should have been reasonably incurred and the cost reasonable. If the overall costs appeared disproportionate, then the court would have to be satisfied that each item was necessary and its costs was reasonable. A sensible standard of necessity should be adopted allowing fully for the different judgments which those responsible for the litigation could sensibly come to as to what was required. While the threshold was higher than that of reasonableness, it should be achievable by a competent practitioner without undue difficulty. The conduct of the other party was relevant, since a cooperative party could reduce costs, but an uncooperative party could render necessary costs which would otherwise be unnecessary. ……

……

(6) Since Civil Justice Reform in 2009, taxation of counsel’s fees under a party-and-party taxation was no different from taxation of costs and expenses. The test of ‘necessary or proper’ applied and must take into account the matters set out in para.1(2) of Part II of the First Schedule to O.62 of the RHC, as well as the requirement of reasonable proportionality. Accordingly, paras.62/App/28(5) (p.1172) and 62/App/28A of Hong Kong Civil Procedure 2012 (p.1172), which referred to the previous pre-CJR ‘excessive and unreasonable’ test under the former para.2(5) of Part II of the First Schedule to O.62 of the RHC, should no longer be followed, ……”

27.  I also refer to the following guidance in Practice Direction 14.3:

“13. A broad-brush approach will be taken by the Court in the summary assessment procedure. The Court will not embark on a mini-taxation. Prolixity in contents of a statement of costs is therefore not acceptable. Costs for gathering information and drafting of these statements will generally not be granted.

14. Although the Court may allow the full amount claimed by the receiving party, it will, so far as possible, ensure that the final figure is not disproportionate and/or unreasonable having regard to the nature and circumstances of the application or matter and the underlying objectives stated in Order 1A. The Court will retain this responsibility notwithstanding the absence of challenge to individual items in the make-up of the figure sought. The fact that the paying party is not disputing the amount of costs can however be taken as some indication that the amount is proportionate and reasonable. The Court will therefore intervene only if satisfied the costs are so disproportionate that it is right to do so.”

28.  Bearing in mind the two-stage approach required for summary assessment, and having considered the nature and scope of the Summons, the affidavits filed in support and in response, the skeleton submissions and what transpired at the Hearing, and having considered all circumstances, I make the following general observations:

29.  Pursuant to her statement of costs, P claimed a total sum of $136,396.67 under the Cost Order. D2 claimed such quantum was “manifestly excessive and disproportionate” when P and D2 had agreed on the relevant reliefs sought under the Summons as evident from the Consent Summons, and suggested that only $16,900 should be allowed for P’s costs under the Cost Order.

30.  This court notes the hourly rate of JL at $5,800 was not disputed, but recognises there is some force in D2’s contention that JL should have delegated more straightforward tasks to junior/unqualified fee-earner. This is a factor which I shall take into account because under party and party assessment of costs the court is concerned with ascertaining the proper or necessary costs of notional solicitor(s) of appropriate seniority or unqualified fee-earner to deal with the task in question. In my view, it is reasonable to have a solicitor-in-charge to work with a more junior or unqualified fee-earner (as appropriate), so that fees can be reasonably contained with more general work done by the junior or unqualified fee-earner under focused supervisory input by the solicitor-in-charge. Here, JL could have delegated some straightforward tasks (eg preparing affirmation of service) to unqualified fee-earner, but in adopting such approach time must be allowed for notional reasonable supervision by JL as the solicitor-in-charge. D2 suggested reducing JL’s hourly rate of $5,800 to $4,500 to reflect notional delegation to more junior or unqualified fee-earners. However, as explained below, I consider it more appropriate to deal with this on item basis rather than adopt an across the board reduction.

31.  For item B1, P asked for $160 ($100 for filing and $60 for serving) x 3 = $480 for filing and serving the Summons, the JL 1^st Aff and the JL 2^nd Aff. Whilst D2 agreed to $100 for filing a document, it considered $60 for serving a document excessive and suggested $50. But according to Part 1 of the First Schedule of Order 62 of the RHC, the cost of each attendance for unqualified fee-earner to file or to serve documents is $110. Thus, P’s claim for $160 for each attendance for filing and for serving documents was less than the permissible rate of $110 x 2 = $220, and hence should be allowed. But D2 was right in saying there was just 1 attendance for filing and for serving the Summons and the JL 1^st Aff, and 1 attendance for filing and serving the JL 2^nd Aff. In the circumstances, I allow a sum of $160 x 2 = $320.

32.  For item C1, P claimed 1.5 hours of JL’s time ($8,700) for attendance on client. D2 submitted such item was not justified and should be disallowed because P’s solicitors should have already obtained P’s instructions when (a) P accepted D2’s sanctioned offer by way of letter by P’s solicitors dated 9 October 2020 and (b) P’s solicitors signed the Consent Summons. I am unable to accept D2’s contention. Irrespective whether P had earlier accepted D2’s sanctioned offer and/or committed to the Consent Summons, this court considered it would be inappropriate for P and D2 to proceed by way of the Consent Summons (see my written directions dated 8 January 2022), which therefore led to the Summons. Plainly, P’s solicitors would have to inform and advise P of such developments, to seek her instructions to take out the Summons, and to report to her on the outcome. In my view, 1.5 hours of JL’s time (without need for delegation) was necessary or proper, and I allow $8,700 under this head.

33.  For item C2(a), P claimed JL spent 55 minutes writing 9 letters to D2’s solicitors and 45 minutes perusing 9 letters from D2’s solicitors, ie $5,316.67 and $4,350. D2 suggested that the entitlement, necessity and time for correspondence with D2’s solicitors were not justified when instead P should have issued the Summons shortly after my written directions dated 8 January 2021. As seen in paragraphs 17-23 above, the positions adopted by P and D1 towards seeking interlocutory judgment against D1 were erroneous to some extent. Thus, whilst P could have taken a less dilatory and less complicated approach, D2 also had to bear part of the blame for raising contentions that were inappropriate, irrelevant and/or (as this court had found) without merit. But such contentions as raised by D2 invited response and counter-arguments by P. Taking the inter-solicitors’ correspondence into account and dealing with the matter on a broad-brush basis, P should be allowed half of JL’s time costs at ($5,316.67 + $4,350) ÷ 2 = $4,833.34 under this head.

34.  For item C2(b), P claimed JL spent 15 minutes writing 3 letters to D1, ie $1,450. D2 argued that such letters (if any) should be cover letters for service of documents only, so JL should have delegated such work to junior solicitor or LC. D2 suggested that $4,500 x 5 minutes = $375 be allowed under this head. Bearing in mind the relevant notional fee-earner for such work would be of less seniority than JL but taking into account that JL would have a supervisory function, I allow 6 minutes of JL’s time, ie $5,800 x 0.1 hour = $580 under this head.

35.  For item D1(a), P claimed JL spent 15 minutes ($1,450) for preparing the Summons. D2 had no quarrel with this claim. Given the time spent, I do not see any need to discount JL’s hourly rate as suggested by D2, and I allow $1,450 under this head.

36.  For items D1(b)-(c), P claimed JL spent 8 hours ($46,400) and 4 hours ($23,200) for preparing the JL 1^st Aff and the JL 2^nd Aff respectively. D2 claimed the quantum of such claims was grossly excessive. D2 contended that (a) in respect of the JL 1^st Aff, the application under Order 19 rule 3 of the RHC was misconceived, legal submissions and unnecessary description of the procedural history of the present action were included, and unneeded documents (including filed court documents) were exhibited, all of which were unhelpful for P’s application under the Summons, and (b) in respect of the JL 2^nd Aff, it was unnecessary to file/serve the same as its contents were repetitive of that of the JL 1^st Aff. D2 therefore suggested allowing $9,000 ($4,500 x 2 hours) for the JL 1^st Aff and disallowing JL’s time costs for the JL 2^nd Aff.

37.  In my view, given the history of the present action, especially with the 1^st Judgment against D1 having been set aside, brief explanation about the procedural history was required, and given D2’s previous resistance to the 1^st Judgment, brief explanation about how the Summons came about pursuant to D2’s sanctioned offer, the Consent Summons and my directions dated 8 January 2022 was not unreasonable. But I am not able to see any need to go into details of the merits of the issue of liability and the bulk of the inter-solicitors’ correspondence. After all, there was no disability interest in the present action for which Order 80 court approval would be required, and default judgment under both Order 13 rule 2 (which I have found above to be applicable) and Order 19 rule 3 (which I have found to be inapplicable) of the RHC would not be judgment “on the merits”. In the former case under Order 13 rule 2 of the RHC there is no requirement for the plaintiff to show or establish merits, and in the latter case under Order 19 rule 3 of the RHC the court cannot receive evidence and must give judgment according to the pleadings alone (see Hong Kong Civil Procedure 2022 Vol 1 paragraphs 13/0/13 and 19/7/11 at pages 299 and 563). Thus, the JL 1^st Aff should have been more focused and succinct. Further, it was plainly unnecessary to exhibit filed court documents to the JL 1^st Aff.

38.  As for the JL 2^nd Aff, such affirmation was in response to the Wu 3^rd Aff, and I find it necessary or proper for JL to point out the fallacies in certain arguments raised in the Wu 3^rd Aff. However, similar to what has been set out in the above paragraph, the JL 2^nd Aff could have been more focused and succinct without referring to unnecessary facts and matters.

39.  Taking into account the matters in paragraphs 37-38 above and bearing in mind that (a) D1 had not appeared or taken step to defend in the present action at all and (b) D2 in principle did not resist the substantive reliefs sought in the Summons (see D2’s consent to the reliefs in the Consent Summons), a total of 12 hours of JL’s time costs for items D1(b)-(c) were clearly disproportionate, and on a necessary or proper basis under party and party assessment, I allow a total of 4 hours x $5,800 = $23,200 under items D1(b)-(c) above. But I see no reason to discount the hourly rate as these were JL’s own affidavits for which his personal involvement was justified.

40.  For item D1(d), P claimed JL spent 1.5 hours ($8,700) for preparing three affirmations of service. D2 argued that the time incurred was grossly excessive and such affirmations, if necessary, should have been prepared by LC. D2 suggested that only $750 (ie $4,500 x 10 minutes) should be allowed. I agree with D2 that such affirmations of service should have been primarily prepared by LC under supervision. In the circumstances, I allow ($1,300 x 1 hour) + ($5,800 x 6 minutes) = $1,880 under this head.

41.  For item D2, P claimed JL spent 1.5 hours to persuse the Wu 3^rd Aff, ie $8,700. D2 submitted that the amount claimed was grossly excessive as all exhibits were already in the possession of P’s solicitors, and suggested to allow $1,125 (ie $4,500 x 10 minutes). In my view, the question was not whether the exhibited documents were already in the hands of P’s solicitors, but how D2 by the Wu 3^rd Aff utilised those documents to make out D2’s contentions for which perusal was required. Further, perusal of the Wu 3^rd Aff was not merely about reading as it also involved consideration of the effect of such documents on P’s case. In my view, there was also no need to discount JL’s hourly rate for this head of claim as he was the solicitor who dealt with the affidavit evidence and who attended the Hearing. In the circumstances, I allow $5,800 x 40 minutes = $3,866 under this head.

42.  For item D3, P claimed JL spent 4 hours to prepare for the Hearing (including drafting written submissions, preparing list of authorities, and making general preparation), ie $23,200. D2 submitted it was unnecessary to prepare written submissions (which repeated the contents of the JL 1^st/2^nd Affs) and authorities for the 3-minute Hearing of the Summons, and suggested allowing 10 minutes of JL’s time. In my view, I see no reason to discount JL’s rate to $4,500 as suggested by D2 because JL was the solicitor who appeared at the Hearing. However, as explained in paragraph 28(c) above, the so-called list of authorities merely comprised provisions in the RHC extracted from Hong Kong Civil Procedure 2022 Vol 1. Of the 3 pages of written submissions, only 1 page concerned the Summons and the remaining 2 pages concerned general case management matters. In any event, this court did not accept P’s argument (repeated in the written submissions) based on Order 19 rule 3 of the RHC. Bearing in mind that (a) JL was the handling solicitor-in-charge on behalf of P in the present action, (b) the recent JL 1^st/2nd Affs and the Wu 3^rd Aff must have been still fresh in JL’s mind, (c) D1 never appeared or participated to oppose P’s claim in the present action, and (d) D2 agreed with the reliefs sought in the Summons by reason of its consent to the Consent Summons, I am not persuaded that significant preparation for the Hearing would be required. In the circumstances, I allow 30 minutes of JL’s time ($5,800 x 0.5 hour) at $2,900 under this head.

43.  For item D4, P claimed 45 minutes of JL’s time ($4,350) for attending the Hearing. The time spent was not disputed, but since JL personally attended the Hearing, I see no reason to discount JL’s hourly rate as D2 proposed. In the circumstances, I allow $4,350 under this head.

44.  For item E1, P claimed $100 for travelling fee and postage. Although this item is not disputed by D2, I do not allow this item for the reason set out in paragraph 28(e) above.

45.  Upon considering the items of costs claimed to see whether or not they are appropriate on party and party basis as explained in paragraph 28 above, P’s total costs are assessed at $320 (item B1) + $8,700 (item C1) + $4,833.34 (item C2(a)) + $580 (item C2(B)) + $1,450 (item D1a) + $23,200 (item D1(b)-(c)) + $1,880 (item D1(d)) + $3,866 (item D2) + $2,900 (item D3) + $4,350 (item D4) = $52,079.34.