HUI KEE CHUN v. THE PRIVACY COMMISSIONER FOR PERSONAL DATA

HCA 1980/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1980 OF 2006

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D E C I S I O N

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Introduction

1.  This is the plaintiff’s application to the judge to review the taxing master’s certificates referred to in para. 6 below.  Part of this application is purportedly brought pursuant to RHC Ord. 62 rr. 7 and 8 (see para. 12 to 13 and 17 to 22 below).

Background

2.  The plaintiff commenced this action in September 2006.

3.  In November 2006, the defendant took out a summons to strike out the statement of claim and dismiss this action.  On the defendant’s subsequent appeal to the judge, it was ordered on 30 November 2007 in effect that the statement of claim be struck out and this action be dismissed.

4.  The said order also contains a costs order nisi that the plaintiff do pay the defendant’s costs of the appeal (“the appeal costs order”).  Further, the defendant also became entitled to costs from the plaintiff pursuant to the master’s orders respectively dated 11 May 2007 and 11 July 2007.

5.  The defendant filed his bill of costs on 10 April 2008 for an appointment to be fixed for the above costs to be taxed.  A list of objections was filed on 15 May 2008.

6.  An interim allocatur was issued by the master on 14 October 2008.  This was followed by a final allocatur dated 16 April 2009.  The total amount of costs certified was $223,950.

7.  The plaintiff applied to the taxing master on 8 August 2008 to review the decision.  That application was refused on 16 January 2009 after a hearing.

This Application

8.  By a letter dated 30 April 2010, the plaintiff indicated his submissions were to be found in his written submissions dated 11 June 2009.

9.  The last-mentioned document in turn referred to the plaintiff’s:-

(a) 5^th affidavit dated 29 July 2008;

(b)    6^th affidavit dated 8 August 2008;

(c) written submissions dated 10 September 2008;

(d)    written submissions dated 30 September 2008.

10.  The grounds raised in the above documents can be summarised as follows.

11.  Neither this action nor the striking out application involved the degree of complexity to justify engaging a solicitor of such seniority and experience (para. 3, written submissions dated 11 June 2009).

12.  The reasons given in the judgment dated 30 November 2007 for striking out the statement of claim were totally different from those put forth by defence lawyer (para. 7, written submissions dated 10 September 2008; para. 7, written submissions dated 30 September 2008).  There were allegedly also instances of unprofessional/unethical conduct.

13.  Thus, the costs awarded in the defendant’s favour were:-

“… incurred or wasted due to improper omission, things done improperly or unnecessarily, misstatements, without reasonable cause, misconduct or default … ”

on his part and/or on the part of his lawyers.  The wrongful acts were allegedly committed when they conducted the striking out application (para. 31, plaintiff’s 5^th affidavit; para. 3 and 6, plaintiff’s 6^th affidavit; para. 8 to 12, written submissions dated 10 September 2008; para. 6, written submissions dated 11 June 2009).

14.  In relation to the ground summarised in para. 11 above, the taxing master disagreed with the plaintiff and opined that the case was of such complexity to justify a solicitor admitted in 1994.  It should be noted the hourly rate was voluntarily reduced by defence lawyer from $4,000 to $3,500 but even the latter sum was further reduced by the master to $3,300.

15.  In China Property Development (Holdings) Ltd. v. Mandecly Ltd and Others, HCMP 436/2005 (7 July 2008), I summed up the legal principles relevant to an application for review of taxation by a judge:-

“… The starting point is:-

‘ … the court will not generally interfere with the decision of a taxing master on a question relating to fact or to the amount of costs … ’:

Halsbury’s Laws of Hong Kong (2006 Reissue) Vol. 5(2), para. 90.1275.1.  The exceptions are:-

(a) some question of principle is involved;

(b) the taxing master has not had reasonably sufficient material before him;

(c) he has taken into account irrelevant matters;

(d) he has not taken into account relevant matters; or

(e) he has acted upon a wrong principle or adopted the wrong approach.

It has also been said a judge may review a taxing master’s decision where he has given incorrect reasons.  But this is likely to be a different way of stating sub-para. (c) to (e) above: Halsbury, Vol. 5(2), para. 90.1275.1, especially n. 7.” (para. 35 thereof).

16.  Having perused the relevant materials, I do not find the master’s above conclusion to fall into any of the exceptions set out in the passages quoted above.

17.  The ground summarised in para. 12 and 13 above was premised on Ord. 62 r. 7 (costs arising from misconduct or neglect of a party) and r. 8 (personal liability of solicitor for costs).

18.  As stated in para. 13 above, the wrongful acts were allegedly committed in the conduct of the striking out application.  However, the appeal costs order must have intended to award in the defendant’s favour the costs incurred for such work.

19.  The appeal costs order was expressed as a costs order nisi.  Ord. 42 r. 5B(6) in effect enables an application to vary such an order to be made within 14 days after the decision is pronounced.

20.  The plaintiff has failed to do so.  Instead, on 29 July 2008, he took out an application purportedly pursuant to Ord. 62 rr. 7 and 8 (para. 2 and 3, summons dated 29 July 2008).  By an order dated 31 October 2008, the court dismissed the application.

21.  Grounds similar to those set out in para. 12 and 13 above were relied upon in that application (para. 31, plaintiff’s 5^th affidavit; para. 1 to 6, plaintiff’s written submissions dated 5 September 2008; para. 7 to 9, judgment dated 31 October 2008).

22.  Thus, this aspect has already been adjudicated upon.  It is in law not open to the plaintiff to in effect raise it again now by reason of the doctrine of issue estoppel.

23.  Insofar as the plaintiff may also seek to review the master’s taxation of the individual costs items in the defendant’s bill of costs, I repeat para. 15 to 16 above in relation to those items.

Conclusion

24.  This application is dismissed.

Costs Order / Costs Order Nisi

25.  I have afforded the plaintiff an opportunity to be heard with regard to the costs of this application.  He indicated he would leave the matter to court.

26.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order that the costs of this application be paid by the plaintiff to the defendant.

27.  To save the parties’ time and expense, I also make a costs order nisi to fix the costs at $1,650 (being half hour’s costs at the hourly rate taxed by the master).