XCHRX FENN KAR BAK LILY v. GOH KIM LAY AND ANOTHER

1992 No. A9177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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Introduction

1. The history of these proceedings is set out in the judgment given by me on 14th March 1996. Since then, special leave to appeal to the Privy Council was refused on 28th March 1996, and the Plaintiff duly applied for a review of the taxation of the Defendants' Bill of Costs. At the same time, the Plaintiff's solicitors filed their list of objections to the Defendants' Bill. One of those objections read:

"The amount actually paid or payable by the Defendants to their own solicitors ... for the 'Mareva' application is much less than the sums set out in the Defendants' Bill of Costs for taxation. Therefore the Defendants are making a profit out of the Court proceedings. The Plaintiff put the Defendants to strict proof on the actual amount of legal costs paid or payable to their own solicitor."

Accordingly, on 12th April 1996, some months before the review was due to take place, the Plaintiff's solicitors requested the Defendants' solicitors to provide them with copies of (a) the bill which the Defendants' solicitors had sent to the Defendants, and (b) the receipt issued to the Defendants.

2. The hearing of the review was due to take place on 2nd July 1996. The Defendants' solicitors had not provided the Plaintiff's solicitors with copies of the documents which had been requested. Master Jennings therefore adjourned the hearing of the review to enable copies of the documents to be provided. On 22nd June 1998, the Defendants' solicitors filed a summons applying for the restoration of the review, and seeking an order for a new master to be appointed to conduct the review since Master Jennings had retired in the meantime. That summons came before Master Chu on 20th July. She took the view that she had no jurisdiction in the matter and she dismissed the summons. She expressed the view that the review could not be restored without further directions from me. The Plaintiff's solicitors have now filed a summons returnable before me asking for the appointment of a new master to conduct the review. Since the Defendants have still failed to provide them with copies of the requested documents, the Plaintiff's solicitors also sought in the summons an order for the production to them of a copy of the bill which the Defendants' solicitors sent to the Defendants.

The restoration of the review

3. In a succinct submission, Mr. Chan Chi Man for the Defendants has contended that a new master should not be appointed to conduct the review of taxation because the review should not be restored. That is, at first blush, an unusual stance for the Defendants to take, since the restoration of the review was the primary relief sought in the Defendants' own summons of 22nd June. But the reason why Mr. Chan now resists the restoration of the review is because of the attitude said to have been taken by the Plaintiff's solicitors when the summons came before Master Chu. The Plaintiff's solicitors are said to have contended that the review should not be restored, presumably because the Plaintiff's solicitors thought at the time, albeit erroneously, that if the review was not restored the Plaintiff would not be required to pay the taxed Bill.

4. The only ground on which it is said that the review should not be restored is that there has been inordinate delay on the part of the Plaintiff in applying for directions for the review. The only delay relied upon is delay since the dismissal of the Defendants' summons. Since less than three months have elapsed between then and the filing of the Plaintiff's summons on 16th November, I do not regard the lapse of time as delay, let alone inordinate delay, at all. There is therefore no basis for saying that the review of the taxation should not be restored.

Change of master

5. Ord. 62 r. 34(1) provides:

"A review under rule 33 shall be carried out by the taxing master to whom the taxation was originally assigned."

The rationale for that rule is that the taxing master who carried out the original taxation will know why a particular item had or had not been allowed. However, in the present case, Master Jennings had allowed the whole of the Defendants' Bill without considering the individual items. It was in effect a taxation by default. In those circumstances, the inherent jurisdiction of the court permits me to direct that any master can review the taxation, and I direct that the review of the taxation of the Defendants' Bill of Costs be conducted by any master in place of Master Jennings.

Production of the Defendants' bill

6. Finally, in the course of the hearing before Master Chu, it transpired that on 15th August 1996 the Defendants' solicitors had sent to the Registrar a copy of their bill to the Defendants. The Plaintiff's solicitors had been unaware of that. Following the hearing, the Plaintiff's solicitors sent a clerk to examine the court file. The clerk could not find the copy of the bill on the court file, and that is why the Plaintiff's solicitors were still asking for an order for its production to them.

7. In fact, the copy of the bill is on the court file. I have seen it. It was filed in that part of the file in which correspondence with the court rather than formal documents are filed, and it may be that that is the reason why it was missed by the Plaintiff's solicitors' clerk. Since the file can be perused by the Plaintiff's solicitors, the Plaintiff no longer needs an order for the production of the copy of the Defendants' solicitors' bill to the Defendants, and I make no order on that part of the Plaintiff's summons. Indeed, the fact that it was sent to the Registrar by the Defendants' solicitors is, on the face of it, hardly consistent with the case which Mr. Chan Chi Man would have advanced if Mr. Yu Ying Wai for the Plaintiff had pressed for an order for its production - namely, that the document was a privileged document and therefore immune from production.

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