LAW YIN POK BOSCO v. DR CHAN YEE SHING

HCPI 369/2010
and HCPI 62/2011

[2022] HKCFI 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 369 OF 2010

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 62 OF 2011

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REVIEW OF TAXATION

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Background

1.  This Review of Taxation touches upon a bill filed by the Defendant as receiving party on 25 May 2020 and involving 2 costs orders. The issues in dispute at this review are:

a.  what is “costs of today” means under the costs order dated 11 October 2012 (“2012 Costs Order”); and

b.  whether the time allowed for consideration of a Re-Revised Statement of Damages is excessive under the costs order dated 20 August 2013 (“2013 Costs Order”).

2012 Costs Order

2.  The 2012 Costs Order was granted by Deputy High Court Judge Seagroatt (as he then was) (“the Judge”) at the hearing of same date (“the Hearing”). According to the written judgment (“Judgment”), it reads “(A)s far as costs are concerned, I would not allow costs of the defendant himself but I will make an order that the defendant’s solicitors have their costs of today”.

3.  The Hearing involved an application by the plaintiffs for adjournment of an upcoming trial and after hearing from parties, the Judge dismissed the application and after some exchange with the senior counsel acting for the Defendant (“SC”), made the 2012 Costs Order.

2013 Costs Order

4.  The 2013 Costs Order was made by Deputy High Court Judge Ng (as she then was) upon granting leave to the Plaintiffs to re-revise their Consolidated Revised Statement of Damages and granted the Defendants costs of and occasioned by such revision.

What is “costs of today” means?

5.  Upon hearing parties on this issue at the taxation hearing on 5 February 2021, written ruling had been handed down on 25 February 2021 with detailed reasons for my ruling that “costs of today” must mean costs of today’s application before the Judge. I stand by my decision in the written ruling.

6.  At this hearing, Ms Kwan for the PP relied heavily on the submissions that the exchange between the Judge and the SC should not be considered since they are irrelevant and the literal meanings of the 2012 Costs Order are very clear and should permit no argument.

7.  I do not agree that the 2012 Costs Order is clearly beyond argument. It is ambiguous as to whether it means costs of today’s application or today’s hearing as contended by the parties before me. Under such circumstances, the exchange between the Judge and SC in the transcript arisen from the Judge inviting the SC to address him on the issue of costs and result in the 2012 Costs Order would be the only means to ascertain the true intention of the costs order. I failed to see how these exchanges are irrelevant to the understanding of the 2012 Costs Order.

8.  As for the emphasis by the Judge that “I would not allow costs of the defendant himself”, this must be in answer to the SC’s request for “costs of … the lay client”. And the Judge only allowed costs of the solicitors since the SC was appearing on pro bono basis so the only legal costs for the defendant must be costs of the solicitors.

9.  Ms Kwan relied on indemnity principle, ie costs are awarded to the litigants, not the solicitors as legal costs and expenses are incurred by the litigants, not the solicitors, and argued that the Judge was consciously making an order to deprive the defendants of his legal costs to be recovered from the PP except for the costs of today only.

10.  I can’t see how this argument can sustain since it would be conflicting for the Judge to disallow costs of the lay client but allowed costs of the solicitors which are eventually liability of the lay client. Apparently the wordings of “costs of the defendant himself” (emphasis added) is confined to costs of the lay client and not legal costs as such.

Time for consideration of the Re-Revised Statement of Damages

11.  This is item 13 of the Bill which involved “reviewing and considering and communicating with Counsel” of the Re-Revised Statement of Damages (“RRSoD”) and the Defendant was claiming 2 hours of professional work. On taxation, it had been taxed down to 1 hour.

12.  The Plaintiffs submitted that the scope of the amendments in the RRSoD was extremely limited, ie an addition of paragraph 50 (b) and (c) and an update on mathematics and the relevant amendment or addition had been highlighted in red. An allowance of 1 hour for the solicitor who was already familiar with the documents with such limited amount of amendments is grossly excessive. Furthermore, the Defendant had already been awarded 35 minutes to amend the corresponding Answer which work must require the solicitor to consider the amendments, therefore an overlapping with the time spent in considering the RRSoD. Under such circumstances, the plaintiffs contended that only 10 minutes should be allowed under this head.

13.  The Defendant submitted that the whole RRSoD needed to be reviewed carefully to make sure that other additional paragraphs were not added to the pleadings.

14.  Having considered the submissions, I agree with the Defendant and maintained the 1 hour time granted under this item. It would be unreasonable to expect the solicitor for the Defendant to read or consider only those amended part which were highlighted in red. Given the RRSoD is a document of 48 pages long with 74 paragraphs, it is proper and reasonable for the solicitor for the Defendant to read and consider the whole piece of document again. As for the time allowed for the drafting of the Answer to the RRSoD, since I was informed at the taxation hearing that the document was drafted by the solicitor, hence 35 minutes was allowed without any allowance for the time spent in consideration of the RRSoD.

15.  The Plaintiffs had relied upon a number of authorities in her submissions to show the time allowed in other cases for consideration of documents. Each case must turn on its own facts and I do not agree that the rulings in those authorities can be of any relevance in this case.

Conclusion

16.  Having considered all the submissions, I see no reason to justify a review of my decision made at the taxation hearing. The review is being dismissed.

Costs

17.  At the review hearing, parties had asked for the costs of review to be adjourned and to be dealt with together with costs of the taxation. Hence, costs of the review be adjourned to a date to be fixed before me with 30 minutes reserved. Parties do write to the Listing Officer within 7 days from the handing down of this decision for the date to be fixed.