JOSEPH LEUNG & ASSOCIATES (a firm) v. SHAM YICK CHUN GARY AND OTHERS

HCMP 3334/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3334 OF 2013

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R U L I N G S  O N  C O S T S

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Summary Assessment of Costs

1.  At the conclusion of the hearing on 14 January 2014 the applicant requested that the costs of the hearing on that day be dealt with by way of a summary assessment.  As is set out in the Practice Directions, the court gives preference to such an approach in interlocutory applications.  Notwithstanding the fact therefore that the applicant had not prepared and served a statement of costs together with its skeleton argument (as also provided for in Practice Direction 14.3), given the circumstances I acceded to the applicant’s request and gave directions for the parties to exchange submissions in writing to facilitate the making of such a summary assessment.

2.  The applicant’s Statement of Costs for Summary Assessment (in fact entitled “Estimation of Party and Party costs and disbursements”) was available at the conclusion of the hearing on 14 January, 2014, and a copy was provided to the respondent.  As supplied to the court at least that statement did not include, as is required by the Practice Directions, certification by the Applicant’s solicitor that:

“I certify that the amount claimed in this statement of costs does not exceed [the plaintiff’s / defendant’s] liability for costs to my firm in respect of this [summons / hearing / action, etc.]”

3.  Such certification is necessary, and its importance is underlined in the Practice Direction where:

“Practitioners are reminded that the principle that a receiving party cannot recover a sum in excess of his liability to his own solicitors applies equally to summary assessment. Accordingly, the solicitor for the party seeking costs shall certify…”

4.  It is therefore rather unfortunate that no such certification was made until the solicitors for the applicant had been prompted by the court.

5.  The respondent’s submission makes, in effect two main points.  The first is that the hearing, as matters transpired, was no more than a hearing for directions, and costs should be assessed on that basis.  In particular, attendance by leading counsel cannot be considered to have been necessary.

6.  Secondly, the respondent submits that the claim for costs includes all of the preparation for the hearing, encompassing therefore the preparation of court documents for a substantive hearing which is yet to take place.  Those costs should not be dealt with in the costs of the hearing that in fact took place.

7.  So far as the first of these points is concerned, I agree that if this hearing had been fixed as a procedural callover then the attendance of counsel would likely have been unnecessary.  However it was not fixed as such; it was to be a substantive hearing and attendance by leading counsel, and a junior, at the hearing of this “contempt” application would not have been inappropriate.

8.  The respondent filed its evidence in time, but did not give any indication prior to doing so that it was intending to file evidence and appear at the hearing notwithstanding having been notified of the hearing.  That material was served on the applicant only at the last minute.  The applicant cannot therefore be criticised for briefing counsel and preparing throughout for a substantive hearing.  I have however borne in mind the risk inherent in the hearing date being fixed in close proximity to the last date for the filing of evidence.

9.  I agree with the respondent that, in principle the costs associated with preparation of documents for the substantive hearing are costs more appropriately dealt with as part of the costs of the committal application proper, not as part of this application.

10.  However, it is undesirable that there should be some element of the costs to date excluded from the Assessment for later determination without a very clear demarcation being available showing precisely what has been included and what excluded.  Accordingly I have made the Assessment encompassing all of the costs sought by the Applicant but as reduced by the letter of 6 February 2014.

11.  Having regard to the above factors, taking a broad‑brush approach, and seeking to ensure that the final figure is not disproportionate and/or unreasonable having regard to the nature and circumstances of the application I assess and determine the Applicant’s recoverable costs at HK$320,000.