KAN WAI CHUNG AND OTHERS v. HAU WUN FAI AND OTHERS

CACV43/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 43 OF 2012

(ON APPEAL FROM HCA 811 OF 2010)

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D E C I S I O N

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1.  This is the taxation review hearing of the Plaintiffs’ Bill of Costs dated 3 June 2013 in CACV 43/2012.

2.  The bill was prepared by the Plaintiffs pursuant to the Order of the Court of Appeal dated 7 February 2013(“the said Order”) whereby the Defendants were ordered to pay the Plaintiffs costs of the appeal (in CACV 43 of 2012 on appeal from HCA 811 of 2010) and below on the party‑and‑party basis, save that the Plaintiffs’ costs of preparing the hearing bundles for the appeal be disallowed.

3.  Defendants objected to the amount allowed for various items.  I will deal with them below:-

Item 1

4.  10 hours were allowed on taxation.

5.  Defendants submitted that the time spent is excessive by itself as it means about one hour per page.

6.  They say the Notice of Appeal was based on legal researches, for which 10 hours was allowed under item 21 for this bill.

7.  Defendants say according to paragraphs 12 and 13 of the Judgment, the Plaintiffs in their Notice of Appeal took issue with each of the findings of Mr. Justice Poon in HCA 811 of 2010 but abandoned a substantial part of them and that obviously, the issues that had been abandoned were not necessary and the time devoted to them should be disallowed as the Court would like the practitioners to be concise and to the point and would discourage any one from beating the bush.

8.  The Plaintiffs submitted that the solicitor drafted the Notice of Appeal without assistance from Counsel and that it is not a sound principle to measure the length of the document in determining the quantum of the time spent.

9.  They say counsel was only instructed to attend the appeal hearing and that thorough legal research has been undertaken in order to consider the merits of the appeal, advise the clients, formulate the issues and drafting the Notice of Appeal and exploring cases and authorities in support.

10.  They say same objections had been raised by the Defendants and put forth by the paying parties during the substantive taxation hearing.

11.  They submitted further that the Court of Appeal did not disallow any part of the costs of the appeal when awarding the costs in favour of the Plaintiffs and therefore it is just and reasonable for the Court in exercising her discretion to determine and allow 10 hours after having reviewed all the drafts of the Notice of Appeal.

12.  In this case, the Plaintiffs’ solicitor is the one who solely prepare the Notice of Appeal filed on the 1^st March 2012, without the assistance of Counsel.  Even though it is true that substantial research time has been allowed under item 21 of the bill, in drafting the Notice of Appeal, the Plaintiffs’ solicitors had to incorporate the legal principles in the case law from the research into formulation of issues and the different grounds of appeal in the Notice of Appeal.  Although the Notice of Appeal consists only of 11 pages and though some grounds of appeal under the issue estoppel have been abandoned, Court of Appeal has not disallowed part of the costs for the appeal, save that for preparation of appeal bundle. 

13.  On reconsideration, I allow 7 hours for this item.

ITEM 6

14.  2 hours was allowed on taxation.

15.  This supplementary Notice of Appeal was filed on 17 October 2012.

16.  The same objections came from the Defendants as in item 1.  They said time allowed is excessive.

17.  Although the Plaintiffs did seek counsel advice early in March and April 2012, Counsel obviously did not assist in the preparation of the supplementary Notice of Appeal.

18.  For the same reasons as set out in paragraphs 9 and 11 above for this item. I maintain my ruling of 2 hours.

ITEM 8

19.  12 hours were allowed on taxation.

20.  General objections from the Defendants are that these are duplication of work done by Counsel.

21.  The items concerned are:-

(a)  Considering Plaintiffs’ (Appellants’) Skeleton Argument dated 6 December 2012

(b)  Considering Chronology of Material Events dated 6 December 2012

(c)  Considering Plaintiffs’ (Appellants’) List of Authorities dated 6 December 2012

(d)  Considering the Skeleton Argument of the 2^nd Defendant dated 12 December 2012

(e)  Considering the List of Authorities of the 2^nd Defendant dated 12 December 2012 together with its enclosures

(f)  Considering the Skeleton Submissions of D1, D3 and D4 dated 13 December 2012

(g)  Considering the Skeleton Submissions (List of Authorities) for D1, D3 and D4 dated 13 December 2012 together with its enclosures

(h)  Considering Plaintiffs’ Reply Skeleton Argument dated 18 December 2012

(i)  Considering Plaintiffs’ (Appellants’) Supplemental List of Authorities dated 6 December 2012

(j)  Reviewing files and documents

22.  Defendants say also that in the absence of record of time spent by Plaintiffs’ submissions, no fee should be allowed.

23.  He criticized further that costs allowed for Plaintiffs’ solicitors are equal to the brief of the counsel.

24.  It is clear from the grounds for review presented by the Defendants that they erred in concluding that the Counsel played a major part in the present appeal and that the role of the instructing solicitors, in the present case, should just be confined to assisting the 4 years standing junior counsel, in their own words, ‘to coordinate Counsel’s work’.  That is not what a responsible and prudent instructing solicitor should do.

25.  I take the view that as a responsible instructing solicitor, one has to know the case well and as far as possible render assistance to the counsel, including discussing with him the issues in the case.

26.  The counsel in the present case obviously is junior in experience and the Plaintiffs as the appellant in this case before the Court of Appeal obviously need, as a matter of necessity to scrutinize those materials covered in items (a) to (j) and not just leave them for the sole consideration of the junior counsel.

27.  Furthermore, the appeal is solely handled by the instructing solicitors most of the time in the present case, without assistance from the Counsel.  This point has clearly been missed, if not ignored, by the Defendants.

28.  Having regard also to the bundle of materials concerned and the importance of this case to the Plaintiffs, I maintained my ruling of 12 hours as being necessary time spent for this item.

ITEM 14

29.  6 hours was allowed on taxation.

30.  Defendants said as this is an appeal case and almost everything is on paper, a conference with client, even if needed, must be short.  They suggest to allow 2 hours.

31.  Plaintiffs said it is just and reasonable for the Court to allow 6 hours for conferences with clients and 5½ hours for conferences between solicitors and counsel for this case.

32.  I have considered, inter alia, the attendance notes of these attendances, the grounds of appeal in this case and, in particular, the fact that the importance of this appeal to the Plaintiffs is paramount and with the relatively junior experienced counsel, extra efforts, as a matter of necessity, need be deployed by the instructing solicitors interacting with client and/or counsel to ensure that the case is prepared with the full efforts.

33.  I maintain my ruling under this item.

ITEM 20

34.  4 hours were allowed for this item of review and perusal of papers.

35.  Defendants suggested 2 hours. They say 4 hours is excessive as these are documents filed in the court below previously.

36.  Plaintiffs commented that the interval between the decision made by Poon J (as he then was) and hearing of the appeal was a year.

37.  I am satisfied, after reconsideration, that time for perusing those documents allowed at 4 hours, having regard to the considerable quantity of documents, is justified and necessary.

38.  The solicitors should screen these substantial materials and to make sure the useful materials are covered in the preparation of the present appeal.

39.  I maintain my ruling of 4 hours.  

ITEM 21

40.  I have previously allowed 10 hours for the legal research items.

41.  Defendants criticized this work as being duplication of Counsel’s work and that some of the cases have been considered in the Court below.  They suggested 4 hours.

42.  Plaintiffs submitted that Counsel was only instructed to attend the appeal hearing. Thorough legal research have been undertaken to consider the merits of the appeal, advise the clients, formulate the issues including drafting the Notice of Appeal and exploring cases and authorities in supporting and/or assisting the junior counsel in formulating the Skeleton Argument and preparation of the appeal.

43.  They say it is just and reasonable for the court in exercising her discretion to determine and allow 10 hours after having reviewed the citations of and the bundle of cases and authorities shown to the court.

44.  The instructing solicitors in the appeal had only at one stage seek counsel advice of Mr. Benjamin Chain, counsel and the assistance of Mr. Keith Lam as the advocate in the appeal.  He himself conducts the appeal the rest of the time.  His involvement in the appeal is very substantial.  That must have included a lot of time spent on legal research evidenced in the bundle of documents for this item before this court. 

45.  On reconsideration of these items, I maintain my ruling of 10 hours.

Costs

46.  In this review, the Defendants only succeeded in one item under review, I make an order nisi that they shall pay the Plaintiffs 80% of the review application, the same to be summarily assessed.

47.  The Plaintiffs do lodge and serve within 7 days after the order nisi is made absolute the statement of costs for summary assessment and the Defendants shall lodge and serve their comments thereto within 7 days thereafter.