CHAN BOON NING JOHN v. OLDHAM, LI & NIE, SOLICITORS

HCMP2166/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO. 2166 OF 2005

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D E C I S I O N

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Introduction

1.  This is the Plaintiff’s application for an order of taxation of a number of disputed bills from his erstwhile solicitors and other consequential directions under section 67 of the Legal Practitioners Ordinance, Cap.159.  A stay is also sought in respect of DCCJ5075 of 2004, an action launched by the Defendant as the Plaintiff therein for work done, services rendered and monies paid by the Defendant as the Plaintiff’s solicitors, amounting to HK$352,548.33.

2. In the District Court action, the relief sought was in respect of 10 bills allegedly delivered on divers specified dates between 23 October 2003 and 15 April 2004 to the Plaintiff that remained outstanding.  For details one needs to refer to paragraph 3 of the statement of claim in the District Court action. 

3. In the defence filed in that action, the Plaintiff, in denying liability, attacked the defendant’s charges as being unfair, unreasonable and excessive while further averring that the Defendant had never advised him of his right to have the bills taxed.  He also alleged that copies of the bills were not given to him despite repeated requests.

4. On 20 December 2004 the Defendant applied for interlocutory judgment for damages to be assessed.  In January 2005 the Defendant amended the application for summary junction seeking judgment on the full amount claimed.  On 22 April 2005, Master Ko gave the Plaintiff unconditional leave to defend.

5. On 1 June 2005 the Plaintiff sought transfer of the District Court action to the High Court, which application was dismissed on 16 August 2005.  In October 2005 the Plaintiff issued the originating summons before me for the Defendant’s costs and disbursements to be taxed.

The Legal Practitioners Ordinance

6. As the Plaintiff’s claim is couched in terms of section 67 of the Legal Practitioners Ordinance, it is appropriate to set out so much of the statutory provision as is material.  Section 67 reads:

67	(1)	“On the application, made within 1 month of the delivery of a solicitor’s bill or a foreign lawyer’s bill, of the party chargeable therewith the Court shall, without requiring any sum to be paid into court, order that the bill shall be taxed and that no action shall be commenced thereon until the taxation is completed.
	(2)	If no such application is made within the period mentioned in subsection (1), then, on the application of the solicitor or the foreign lawyer, or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order –
		(a)	that the bill shall be taxed;
		…
	Provided that –
		(i)	if 12 months have expired from the delivery of the bill, or if the bill has been paid, ... no order shall be made on the application of the party chargeable with the bill except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the Court may think fit.”

7. As to the meaning of “special circumstances,” one should refer to the Rules of the High Court, in particular 62/App/63.  Misconduct or fraud on the part of the solicitor, pressure accompanied by overcharging or gross overcharging tantamounting to fraud are instances justifying taxation even after the expiry of 12 months after delivery of a disputed bill.  These examples are not exhaustive.  Much would turn on the factual matrix of each case.

8. In support of and in opposition to the present application, affidavit evidence have been filed by the Plaintiff and Mr Gordon Oldham, for the Defendant.  The parties have done likewise in the District Court action.

The Evidence

9. The first issue to determine concerns when the contested bills were in fact delivered to the Plaintiff and, if so, how.  In this regard Defendant’s position is succinctly encapsulated in paragraph 10 of Mr Gordon Oldham’s affidavit in bundle A at page 34.  He said in paragraph 10:

“The Plaintiff is now seeking to invoke s 67 of the Legal Practitioners Ordinance to submit the Defendant’s bills as pleaded in the Statement of Claim for taxation.  I crave leave to refer to my 2nd Affidavit filed in DCCJ5075/2004.  I have stated in paragraph 5 of this Affidavit that the Bills were duly delivered to the Plaintiff on or about their respective dates of issue personally.  As the Bills have already been delivered to the Plaintiff for more than 12 months and a large part of the bills have been settled, the Plaintiff being the party chargeable is required to obtain leave from the court to have the Bills be taxed by showing “special circumstances”.” 

10. In gist, it has been alleged that there was personal delivery on or about the dates appearing on the bills themselves.  This much has been strongly disputed by the Plaintiff who was incarcerated at Shek Pik Prison at the material time. 

11. The Plaintiff said in his second affirmation (paragraphs 35 and 36, at page 53 of bundle A):

1.  7-1-2003

2.  30-6-2003

3.  31-7-2003

4.  23-9-2003

5.  20-11-2003

6.  18-12-2003

7.  15-1-2004

8.  12-12-2004

9.  4-3-2004

However, the dates of the said disputed bills are as follows: 

Bill No	Date of Bill
777/2003	23-10-2003
778/2003	23-10-2003
878/2003	17-11-2003
015/2004	8-1-2004
016/2004	8-1-2004
017/2004	8-1-2004
358/2004	31-3-2004
401/2004	15-4-2004
402/2004	15-4-2004
403/2004	15-4-2004

36.  The last visit was on 4 March 2004.  It was not possible for the Defendant to deliver the bill nos. 358/2004, 401/2004, 402/2004 and 403/2004 to the Plaintiff personally because they were issued after 4 March 2004.  Therefore, paragraph 10 of the Defendant’s affidavit is incorrect and the Defendant has failed to prove that the bills were duly delivered to the Plaintiff.  As the Defendant has never proved the date(s) of delivery of the said disputed bills to the Plaintiff, there is no evidence that the prescribed 12-month period has actually expired or not.  In any event, the Plaintiff has referred to the special circumstances for taxation in my 1^st Affirmation dated 4 November 2005 filed herein.”

12. The Plaintiff’s third affirmation filed and served in the District Court action proceeds in a similar vein.

13. It is plain to me that this is a highly contentious area not susceptible to a ready resolution on affidavit evidence without more.  There are also other aspects of serious factual conflict to which this observation is of equal application. 

14. Were all the bills personally delivered to the Plaintiff on or about the dates of the respective bills by Mr Oldham when he visited Shek Pik?  Were some of them so delivered and others simply sent?  When were they actually personally handed over to the Plaintiff in prison or sent?  We have seen the bills Nos. 358/2004, 401/2004, 402/2004 and 403/2004 were issued after Mr Oldham’s last visit to Shek Pik on 4 March 2004.  These bills clearly could not have been personally delivered.

15. The state of the evidence is such that I am unable to accept the Defendant’s evidence on delivery.  There is, however, no question that the Plaintiff had eventually received all the bills.  However, unless I am able to determine when exactly they were delivered to him in whatever fashion, it is well-nigh impossible to begin to assess when the statutory 12-month period should begin.

16. In my considered judgment, this finding would be sufficient to put the disputed bills to taxation. 

17. Were I to be wrong in so concluding, I find in the circumstances that exceptional circumstances do exist warranting leave to be granted to the Plaintiff. 

18. The Plaintiff alleged that the Defendant had failed to advise him of his right to taxation.  This claim, however, is not substantiated in my view.  It is plain that the Defendant had written to the Plaintiff on 17 November 2004 advising that if the Plaintiff considered the firm’s charges unfair and unreasonable, he should proceed to taxation.

19. The Plaintiff also stated that the Defendant had applied undue and unreasonable pressure on him to settle the bills, going so far as to lodge proceedings in the District Court which they prosecuted with a vengeance.  The Defendant was entitled to have their costs and disbursements paid and chasing for payment, per se, cannot amount to high-handedness or oppression.  It was also within the rights of the Defendant to pursue the balance of the fees owed (after alleged setoffs) in the courts.  I see nothing of moment in these allegations.

20. However, when one scrutinises the bills, as counsel for the Plaintiff did at some length in submissions, one cannot but fail to notice a striking absence of particularity.  There were demonstrated instances of duplicated charges (particulars of which are in the Plaintiff’s third affirmation in the District Court) and overcharging in respect of filing fees where time charge was applied.

21. There is incontrovertible evidence that the Defendant had unilaterally deducted a total of HK$342,343.19 from the costs on account of the Plaintiff, his ex-wife and/or from some undetermined third party.  I am satisfied to find that the Plaintiff did not authorise or consent to such a setoff.  What the Defendant had done cannot be right or fair.  The circumstances attending upon the alleged setoff remain nebulous at best.

22. The Plaintiff also said that there was an agreement between him and the Defendant that all charges should be discounted by 25%.  The evidence in point appears in his second affirmation filed in the District Court proceedings (see bundle A, page 106, paragraph 6).  I accept his evidence in this regard.   Failure to reflect the substantial discount of 25% translates, in my judgment, to excessive overcharging.

23. It is common ground that the District Court lacks jurisdiction to assess the amount payable under the disputed bills: Massie & Clement v Eastern Global Property Management Limited DCCJ2850 of 2006.  In my judgment, the circumstances of the case, as I see and find them, warrant the bills to be scrutinised in taxation.  I therefore grant the relief sought by the Plaintiff and order that the bills proceed to taxation.  There will also be a stay of the District Court suit.

(Submissions by counsel)

24. I make an order in terms of paragraph 1 to 4 of the originating summons.

(Submissions by counsel)

25. You do not need an order in terms of 6, 7, 8 and 9.  Order in terms of paragraph 5, as amended, to grant 28 days with no order in respect of paragraphs 6 to 9 inclusive.

(Submissions on costs)

26. The Plaintiff shall have his costs of this application with certificate for counsel including any costs reserved in respect thereof, taxed if not agreed, against the Defendant.