CHAN KWONG HON v. CHAN KAM WAH KENT AND ANOTHER

HCPI 242/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 242 OF 2002

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ASSESSMENT OF GROSS SUM COSTS
UNDER ORDER 62 RULE 9(4)(b)

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1. This case was listed for trial on 11 February 2003 having been in the Running List/Warned List. After 4.30 p.m. on 10 February 2003, the Plaintiff accepted the payment into court which had been increased only that morning. The case remained as listed only for the matter of costs to be assessed since it was an extremely straightforward running down action. Had it gone to trial it would not have occupied the court for more than one day. The Defendants had indicated no evidence would be called and the medical evidence was agreed.

2. The accident occurred in daylight in December 1999. The Plaintiff was driving a taxi and had become stationary behind a bus at traffic lights. The 2nd Defendant drove a medium goods vehicle, owned by the 1st Defendant, into the rear of the vehicle driven by the Plaintiff, pushing it into the rear of the bus. There can have been no defence to the Plaintiff's claim. The 2nd Defendant had pleaded guilty to careless driving. It was an action in which judgment should have been entered for the Plaintiff under Order 18 Rule 19, the Defence being struck out as disclosing no reasonable defence. It verged on the frivolous if not ludicrous in alleging that the Plaintiff failed to keep sufficiently far ahead of the Defendant's vehicle so as to give the Defendant more space in which to pull up without striking the rear of the taxi.

3. However the Defendants were able to avoid having judgment entered against them because they contended that be Plaintiff did not own the taxi and so he could not legally claim the costs of repair. Quite apart from any question of ownership of the taxi (in fact he did own it) he would be entitled to claim such costs of repair as bailee.

4. Nonetheless although liability remained technically in issue, this was a claim in which the Plaintiff was bound to succeed. The Defendant's solicitors stated at the Check-list hearing that they would not call any evidence.

5. The Plaintiff's solicitors' preparation for this action as far as the facts were concerned, was therefore limited and simple. The usual documentation had to be prepared and the medical evidence considered. The Plaintiff was examined by one orthopaedic consultant for each party. They later produced a joint report.

6. Although a Revised Statement of Damages was filed and served this was quite unnecessary. Only one figure was altered - the claim for loss of earning capacity was increased from $100,000 to $300,000 - and this should have been done by a short letter. It was also far too detailed, over one page being wasted on repeating details from the medical reports which had already been served. The claim was put at over $2.5m. - $700,000 was accepted. It was clearly grossly inflated. Three lists of documents were prepared for the Plaintiff. One was sufficient. The Statement of Claim was however appropriately and commendably brief.

7. For overall preparation a total of 58 hours work shared between solicitors of 22 years and 4 years experience respectively, was claimed. It was clear there was overlap and duplication. The work required obvious care even in such a simple case, but that period of time is unjustified. I allowed $120,000 in respect of profit costs arguably on the generous side. This reflected the fact that the solicitors had instructed counsel only once and had therefore done the vast majority of the work themselves.

8. The disbursements included counsel's fee of $35,000 for a 34-page Advice on Quantum. It was unnecessarily long and did not justify the fee claimed. But for the Defendants' solicitors' generous approach I would have reduced it below the $20,000 I allowed. It has to be remembered that this is a party and party taxation.

9. I also reduced the claim for copy documents - $3,000 for 1,000 pages - by half. It seems to me that such a simple case could not possibly justify the generation of such a copying charge.

10. The remainder of the disbursements were medical and court fees. In total I allowed gross sum costs at $164,437 to be paid within 21 days.

11. If the Plaintiff's solicitors seek to charge their client, the Plaintiff, any of the costs they feel they have not recovered, that would, in my opinion be an imposition. It particularly applies to the difference between counsel's fee as claimed and as allowed.

12. Solicitors conducting such litigation should ensure that counsel's fee will be reasonable. They should not comfort themselves that they can charge to their client an excess which they should not have incurred in the first place.