CHEUK SHU YIN v. LAW YEUK KAN AND ANOTHER

[Chinese Translation –中譯本]

CACV17/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 17 OF 2013

(ON APPEAL FROM HIGH COURT PROBATE ACTION NO. 3 OF 2011)

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Decision on Costs

Hon Chu JA (giving the judgment of the Court):

1.  By our judgment of 9 May 2017, we dismissed the plaintiff’s appeal and ordered that the plaintiff shall pay the defendants’ costs, the amount of which to be summarily assessed.

2.   Pursuant to our directions, the 1^st and 2^nd defendants submitted a joint bill of costs on 22 May 2017 and claimed costs in the total sum of $277,817.  On 5 June 2017, the plaintiff filed a statement of objections, in which she submitted that the amount of costs claimed by the defendants was excessive and suggested that the amount should be $1,973.  The plaintiff also stated that she could not afford to pay the costs.

Applicable legal principles

3.   This Court will explain a few general principles before examining the bill of costs of the defendants.  First of all, what is being assessed is the costs of the appeal, excluding the expenses incurred in the previous interlocutory applications by summons. Pursuant to our order dated 9 May 2017, expenses incurred in the parties’ application by summons for submitting new evidence are not included in this assessment either.  Secondly, while the plaintiff has stated that she could not afford to pay the costs, it is not relevant to the amount of costs the defendants may be allowed and does not constitute a reason for objecting the bill of costs.

4.   As to the legal principles applicable, since the two defendants are not represented, the provisions in Order 62, rule 28A of the Rules of the High Court, Cap 4A, apply. The Court of Appeal gave a clear explanation on the amount of costs a litigant in person may be awarded in FOK Siu Wing v ICAC (unreported, CACV341/2005, 27 April 2006):

(1)   If a litigant in person, who is gainfully employed, needs to do the work in relation to the litigation during his working hours, the maximum costs allowed is two-thirds of the sum which would have been allowed to a solicitor for doing that work.

(2)   If the litigant in person has no job or could handle the work in relation to the litigation at his spare time, he has not suffered any actual pecuniary loss and hence shall not be awarded costs under the indemnity principle of the common law.  However, pursuant to Order 62, rule 28A(3), he may be allowed costs of not more than $200 per hour.  The number of hours allowed in Order 62, rule 28A(2) is the time a solicitor would have spent on that item, not the time the litigant in person has actually taken.

(3)   If the litigant in person has no job but claims to have suffered pecuniary loss, he will need to prove his claim by an affirmation, which would include providing proof of his academic qualifications, working experience, loss of income etc.

5.   Moreover, it is also stated in paragraphs 13 and 14 of Practice Direction 14.3 that a broad-brush approach will be taken by the Court in the summary assessment procedure; the Court will not embark on a mini-taxation; also, the Court will, so far as possible, ensure that the figure of the costs is not disproportionate and/or unreasonable having regard to the nature and circumstances of the case and the legal proceedings and the underlying objectives stated in Order 1A of the Rules of the High Court.  The Court will carry out the assessment by a global approach and an item by item approach.  If the costs as a whole are not disproportionate, then the Court can accept all reasonably incurred items and allow a reasonable amount.  If the costs as a whole appear disproportionate, then the Court must be satisfied that the work in relation to each item was necessary and that the cost of the item is reasonable before the cost of the item will be allowed: Poon Shu Fan v. Wong Tin Yan [2012] 5 HKLRD 512.  The Court may refuse to accept an exaggerated bill of costs and tax the costs as a whole by a broad-brush approach according to the complexity of the case and the participation of the Receiving Party without carrying out an item by item assessment.

Assessment by this Court

6.   We will assess the costs of the 1^st and 2^nd defendants in accordance with the above principles.  The issues of this appeal were not complicated and mainly concerned the trial judge’s findings of fact.  Having regard to the nature of the case and the underlying objectives stated in Order 1A, we take the view that the total costs of the 1^st and 2^nd defendants are disproportionate.  Therefore we have to examine the necessity of each item and the reasonableness of each amount.

7.   Item A4 (Defendants’ Rate of Charges per hour): The 1^st and 2^nd defendants sought a rate of $100 per hour.  The plaintiff submitted that they were not professionals and suggested that this Court refer to the statutory minimum wage and allow only $40.  We would allow the defendants to calculate their costs at the rate of $100 per hour.  Firstly, although the issues of the appeal were not complicated, considerable perusing and paper work was involved in preparing for the appeal. Moreover, a rate of $100 per hour does not exceed what is prescribed by Order 62, rule 28A(3).

8.   Item B1 (Photocopy charges): The 1^st and 2^nd defendants submitted that they made photocopies of 2,835 pages and claimed $2,835.  As documents have to be prepared in quadruplicate (3 copies for the Court of Appeal and one copy for the plaintiff), this is equivalent to photocopies of about 700 pages. We agree that this item is excessive.  The appeal bundle was compiled by the plaintiff.  Pursuant to our order dated 9 May 2017, the defendants were not awarded the costs of the application for submitting new evidence, including the photocopy charges in relation to that application.  In the appeal itself, the submissions and attachments relevant to the appeal that the defendants must submit should not exceed 300 pages.  Since documents have to be prepared in quadruplicate, the photocopy charges we will allow is: 300 pages x 4 sets x $1 = $1,200.

9.   Item B2 (Fax charges): The 1^st and 2^nd defendants did not give any details of the charges.  However, the plaintiff stated that the defendants never faxed any documents to her.  Under such circumstances, we would not allow this item.

10.   Item C1 (Attendance on defendants): The defendants claimed 100 hours, which we consider to be plainly excessive.  As mentioned above, the issues of this appeal were not complicated.  The bulk of the grounds of appeal submitted by the plaintiff were just a repetition of her grounds raised at the trial in the Court of First Instance, and each of those had already been rejected by the trial judge in her judgment.  In addition, the 1^st and 2^nd defendants are father and daughter.  It is plainly unnecessary and unreasonable for the two of them to have spent 100 hours on communication in relation to the appeal. Having considered this appeal spanned over a period of more than 3 years, we take the view that the reasonable number of hours would be 40 hours and thus the amount would be $4,000.

11.   Item C2 (Attendance on plaintiff): The plaintiff submitted that the defendants never contacted her.  However, at different stages in the course of this appeal, both sides had correspondence regarding the service of litigation documents or matters concerning the hearing, including sending the other side a copy of their correspondence to the Court.  Three hours would be a reasonable number of hours.

12.   Item C3 (Attendance on solicitors): The 1^st and 2^nd defendants claimed 73 hours at a total sum of $146,000 (at $2,000 per hour) for the expenses they incurred in communicating with their solicitors and seeking legal advice.  While a rate of $2,000 per hour might have been the hourly rate charged by the defendants’ solicitors, the 1^st and 2^nd defendants have been acting in person in this appeal and neither they nor their solicitors (if any) have filed a notification of representation to the Court, informing the Court and the plaintiff that they have engaged a legal representative to act on their behalf.  Under such circumstances, the defendants cannot ask the plaintiff to pay their legal fees even if they did actually engage a solicitor to assist in this appeal.  We would only allow the time the defendants spent on consulting their solicitors and the reasonable number of hours would be 10 hours, which, on the basis of $100 per hour, would amount to $1,000.

13.   Item D1 (Preparation of documents), Item D2 (Perusal of documents) and Item D3 (Preparation for hearing): The 1^st and 2^nd defendants claimed 366, 113 and 113 hours respectively, which came to 592 hours and $59,200.  It is true that this appeal has taken a long time, during which the plaintiff issued many letters and documents in relation to the appeal, so that the defendants had to reply to them.  However, 592 hours are still manifestly excessive.  After all, as we pointed out above, the appeal mainly concerned the findings of fact and the plaintiff’s grounds of appeal were similar to her arguments at trial.  The defendants should have focused on the preparation in opposing the appeal and there was no need for them to have spent so much time and effort in making affirmations or replies at great length and tangling with the plaintiff on matters irrelevant to the appeal.  We would allow $25,000 as regards these 3 items.

14.   Item D4 (Hearing): In view of the fact that several mention hearings concerning the appeal bundle and the preparation of the appeal had been heard before a Master, 11 hours is a reasonable length of time and we would therefore allow defendants’ claim of $1,100.

15.   Item E1 (Transportation fees): The 1^st and 2^nd defendants claimed $57,400 for transportation fees without providing any details.  Even taking into account that the 1^st defendant is of advanced years and may need to travel by taxi from time to time, we still consider the charge excessive.  We take the view that a reasonable amount would be $5,000.

16.   Item E2 (Postal fees) and Item E3 (Stationery fees): The expenses and the amount ($382 and $500) appear reasonable and would be allowed by this Court.

Order

17.   In summary, the defendants’ costs of the appeal are assessed at $38,482, with the breakdown as follows:

	Items	Amount
B1	Photocopy charges	$1,200
B2	Fax charges	$0
C1	Attendance on defendants	$4,000
C2	Attendance on plaintiff	$300
C3	Attendance on solicitors	$1,000
D1	Preparation of documents)
D2	Perusal of documents    )	$25,000
D3	Preparation for hearing)
D4	Hearing	$1,100
E1	Transportation fees	$5,000
E2	Postal fees	$382
E3	Stationery fees	$500
	Total:	$38,482