GENTLE SOAR LTD v. CMBC CAPITAL FINANCE LTD AND OTHERS

HCA 678/2021

[2022] HKCFI 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 678 OF 2021

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D E C I S I O N
O N  C O S T S

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1.  I refer to my Decision of 22 November 2021[6] dismissing the Injunction Summons. I refer also to the costs order nisi I made therein, which has since become absolute.

2.  This is my summary assessment of the costs concerned.

3.  By the Statement of Costs (“Ds/SC”) submitted by Messrs K M Lai & Li (“KML&L”) on behalf of D2 and D3, they claim costs for the Injunction Summons in the total sum of HK$2,316,245.

4.  Messrs Ince & Co on P’s behalf lodged on 22 February 2022:

(a)  its Statement of Costs (“P/SC”) in respect of the Further Evidence Summons, which I on 6 September 2021 ordered that D2 and D3 should bear on an indemnity basis. By that Statement of Costs, P claims costs in the total sum of HK$1,353,636; and

(b)  its List of Objections to Ds/SC (“P/Objections”). P objects on the basis that various items claimed by D2 and D3 are excessive. It says that only HK$851,770 should be allowed.

5.  On 1 March 2022, KML&L lodged D2 and D3’s:

(a)  Statement of Objections to P/SC (“Ds/Objections”). They say that only HK$307,005 should be allowed to P; and

(b)  Reply to P/Objections (“Ds/Reply”). All objections made in P/Objections are denied.

6.  P’s new solicitors Messrs Chiu & Partners on 6 April 2022 lodged P’s Reply to Ds/Objections dated 28 March 2022 (“P/Reply”).

The Further Evidence Summons

7.  I deal with the costs of the Further Evidence Summons first.

8.  The objections relating to B1 and B2 are agreed to (relating to the costs for preparation of bundles subsequently reused, so that the costs concerned had not been “thrown away”). I allow the balance, in the total amount of $1,300.

9.  In relation to Communication under C:

(a)  I agree that Item C1 for 25 work-hours in the total sum of $112,500 is excessive and unreasonable;

(b)  I allow only $60,000.

10.  In relation to Professional Work under D:

(a)  Some of the costs (in particular part of those under D1, D2, D3) were not thrown away as the works concerned had subsequently been used in the substantive hearing;

(b)  2 Senior Counsel have been engaged. Those costs for preparation of the hearing ($56,000) and legal research ($58,000) are excessive and unreasonable;

(c)  Attendance of the hearing (for 4.5 hours) has been accepted to be inaccurate, as the hearing only lasted 2 hours;

(d)  I allow only HK$130,000 in total.

11.  For Disbursement under E:

(a)  I have considered Lok Wai Yee v Man Koon Hung, (unreported, HCA 1181/2014, 17 June 2016), per Deputy Judge Marlene Ng (as she then was) at §12. I agree that part of the brief fees paid to counsel were not thrown away, in the sense that the fees for the substantial hearing would have been be reduced (in the sense that they became refreshers). As revealed in P/Reply, counsel fees for the substantial hearing were in fact lower than the briefs for the hearing on 6 September 2021;

(b)  I allow only $780,000 under E.

12.  In total, I summarily assess the costs in relation to the Further Evidence Summons at $971,300.

The Injunction Summons

13.  I move on to the Injunction Summons.

14.  In relation to A3, given the complexity and amount involved, I am of the view that the level of experience of the fee earner is appropriate.

15.  There is no objection to B for Manual Work.

16.  In relation to C, for an application of this nature, I am of the view that a total of 20 hours of communication and conference with counsel is reasonable.

17.  In relation to D for Professional Work, even for an application of the present nature, but with the engagement of leading counsel and an experienced junior, a total of 116 hours for $672,825 is excessive. I allow only HK$350,000.

18.  In relation to E for Counsel’s Fees, I accept P’s objection to E3 for settling correspondence, attendance of without prejudice meetings etc on top of the briefs. I otherwise allow the other fees. I also allow the costs for the engagement of a law costs draftsman.

19.  For the above reasons, and adopting a broad brush approach, I summarily assess the costs for the Injunction Summons at $1,915,000.

20.  I otherwise make no order in respect of this assessment exercise.