LAM KAM HEI v. NG CHING HOI

DCPI 717/2022-1

[2023] HKDC 1712

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 717 OF 2022

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DECISION

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Introduction

1.  The present taxation hearing was held before me on 28 August 2021 on the bill of costs (“the Bill”) presented by the Plaintiff with my decision rendered on the same date (“Taxation Decision”).  After conclusion of the taxation, the Defendant made an application for review of the Taxation Decision under O 62 r 33 of the Rules of the District Court Cap 336H (“Defendant’s Review Application”).  An Appointment to Review of Taxation was filed on 4 September 2023.  The review hearing was held on 17 October 2023.

2.  On 12 October 2023, the Defendant submitted the List of Authorities relating to the applicable principles on the solicitor’s hourly rates for the court’s reference. 

3.  On the same day, this court directed the Plaintiff to give its reply (if any) to the Reasons of Objections as stated in the Defendant’s Application for Review and invited the Plaintiff to submit authorities to support the said Reply (if any) on or before 12 noon of 16 October 2023.

4.  On 12 October 2023, this court received the Plaintiff’s Skeleton Submission and also the hearing bundle for the Review hearing.

5.  On 16 October 2023, court received the Defendant’s hearing bundle for the Review hearing. 

6.  The Defendant requested for a written judgment and this is my decision to the Defendant’s Application. 

Case Background and Procedural History

7.  The action concerns a claim by the Plaintiff against the Defendant for personal injury caused by a traffic accident on 14 December 2019.  The traffic accident involved 3 vehicles, namely:

(a)  Plaintiff’s car: WE522

(b)  Defendant’s car: TT6693

(c)  Third Party’s car: TJ8913

8.  The Plaintiff was the owner and the driver of WE522, a light goods vehicle, and the Defendant was the driver of TT6693.

9.  The Defendant was convicted for careless driving on 25 June 2021.

10.  The Defendant filed Acknowledgment of Service of Writ of Summons indicating that he intended to contest the proceedings on 14 April 2022.

11.  By consent, Interlocutory Judgment on liability was entered against the Defendant 11 May 2023.

12.  Despite the fact that the Plaintiff had, by way of a letter dated 15 October 2023, disclosed (1) the Plaintiff’s bank statements between December 2018 and June 2022; (2) Summary of Member Benefit Statement issued by Sun Life Trustee Company Limited for the year of 2018 and 2019; and (3) Letter from Inland Revenue Department dated 27 May 2020; various correspondences were exchanged between parties after interlocutory judgment was entered on 11 May 2023.

13.  I have, during the Review hearing, directed the Defendant to prepare a bundle of correspondences between 15 October 2021 and 6 September 2022, when the case was fully settled.

Date	Correspondence
6 April 2022	The Defendant’s letter to the Plaintiff requesting the following documents: “1.  Please provide us the police statement of the driver TJ8913[1] and kindly confirm whether the driver of TJ8913 was charged with any criminal offence; 2.  Please disclose the dashcam footage of WE522 and TJ8913[2]; 3.  Documentary proof of self-employment relationship and the name of the company and/or business which your client has self-employment relationship and the name of the company and/or business which your client has self-employment relationship with; 4.  Please provide us the income record of your client for the 12 months prior to the accident; 5.  Please disclose all your client’s MPF records and/or statements for a period of 12 months prior to the accident up to present; 6.  Please disclose all your client’s bank passbooks, statements and/or records for bank accounts solely owned by him or jointly owned by him with another party for the period from 12 months prior to the accident up to present; 7.  Please disclose your client’s tax records and tax demand notes for years of assessment 2017/2018 up to present.  If there are no tax records for the said period, please provide us with a letter from the Inland Revenue Department confirming this; 8.  Whether your client has received any financial assistance from TAVAS Fund?  If so, please provide us with a copy of your Application Form (SWD 347A) for the TAVAS Fund; 9.  All medical report(s), certificate(s) note(s) and record(s) for the injuries alleged sustained in the accident not already disclosed; and 10.  Please disclose all receipts for medical, travelling and tonic food expenses.
7 April 2022	The Plaintiff’s reply letter that they were taking instruction and shall revert.
25 April 2022	The Plaintiff’s reply letter that: 1.  Copy of police statement of Lau Ka Ho (3rd Party) was enclosed and stating that the 3rd Party driver was not charged in respect of the said accident. 2.  The Defendant was referred to 15 October 2021 letter 3.  The Plaintiff did not possess any documentary proof of self-employment relationship. 4-7. The Defendant was referred to 15 October 2021 letter 8.  The Defendant was referred to 5 November 2021 letter. 9.  Sick leave certificate covering the period from 18 to 21 March 2020 was enclosed. 10.  The Defendant was referred to the Plaintiff’s letter dated 13 July 2021 for medical receipts, 6 January 2022 for taxi receipts and 6 January 2022 letter regarding tonic food receipt.
22 April 2022	The Defendant’s letter requesting for a time extension to file its Defence.
5 May 2022	The Defendant’s letter challenging the Plaintiff’s case that the statement of the Inland Revenue Department dated 27 May 2020 did not show the income records of the Plaintiff. And also reserve its right to report the matter to Inland Revenue Department. The Defendant also requested the Plaintiff to identify the income in the bank statement from 27 December 2018 to 16 June 2020.
10 May 2022	The Defendant’s letter to admit liability and a draft consent order was sent to the Plaintiff.
19 May 2022	The Plaintiff’s reply letter to the Defendant’s 5 May 2022 letter. The Plaintiff reiterated that tax documents (from 3 years prior to the accident), bank transactions (for 2 years prior to the accident) and MPF statement (1 year prior to accident) have been disclosed. Lastly, the Plaintiff also requested the Defendant to provide legal basis as to the relevancy and necessity to enquire the Plaintiff for not reporting his earnings in 2018/2019 and 2019/2010 to the IRD. The Plaintiff’s position is that it is not necessary for him to provide the same.
23 May 2022	The Defendant’s letter to reply to the Plaintiff’s 19 May 2022.  The case of Bonham-Carter v Hyde Park Hotel Ltd[1948] 64 TLR 177 was cited.  The Defendant continuously challenged the alleged income of the Plaintiff.
25 May 2022 (which has been wrongly dated as 25 April 2022)	The Plaintiff letter and stated that he opted not to add anything to reply to the Defendant’s letter dated 23 May 2022.
24 June 2022	The Plaintiff’s letter stating the Plaintiff’s intention to arrange a joint orthopedics examination.
24 June 2022	Parties discussing the directions to be sought for the Checklist Review Hearing.

Analysis

14.  From the Reasons for Objections, the complaints of the Defendant are mainly in 2 aspects:

(a)  Hourly rate of CW and KN; and

(b)  Excessive times have been awarded in items 12.1, 16.1, 16.2, 22, 24.1, 27.1-27.2, 29 and C.2.

Hourly rate

15.  First and foremost, as a matter of record, the Defendant has already raised this issue at the taxation hearing (and seeks to re-argue it now).  In any event, I will now deal with the issue of hourly rate first.

16.  Whilst not strictly binding on this court, I also note that the Defendant has asked for hourly rates of Wong Cassandra Wai San (“CN”) who admitted in 2003 and Ng Yuen Ki (“KN”) who admitted in 2008 for $3,860 and $3,460 respectively, which are consistent with the hourly rates as published by the Law Society’s Circular.

17.  The Defendant submits that the present case is a simple and straight forward traffic accident personal injuries case, the Defendant having been convicted and consent order for interlocutory judgment having been filed at an early stage of the proceedings, ie at the time before the filing of the Defence.  The Defendant argues that the case was “settled swiftly”, “no medical expert evidence was adduced”, ‘’no witness statement was prepared” and “no mediation was attempted by the parties”, and given the “simplicity” of the case, a solicitor of 8 years PQE be competent enough to be the handling solicitors in the proceedings.  

18.  I do not agree with this contention. 

19.  First of all, I do not agree that one should look into the matter in hindsight.  No one would have known that the case would be settled until the consent order was signed in September 2022.  To the contrary, as can be seen from the correspondences, the Defendant was taking quite an aggressive approach in contesting the Plaintiff’s claim in respect of his loss of income and loss of earning capacity.  And in the Consent Summons dated 4 August 2022, directions have been sought, inter alia, as follows:

(a)  Filing of respective list of document;

(b)  Exchange of witness statements as to quantum; and

(c)  Considering whether medical evidence shall be adduced and to report the same to the court.

20.  Therefore, at least, up to 4 August 2022, there was no sign of settlement from the Defendant and from the directions sought, witness statements would be filed, medical expert would likely be engaged as indicated by the Plaintiff in its letter dated 24 June 2022.  Parties were preparing themselves as if the case would proceed finally to the assessment of damages, with full evidence (including medical evidence) to be filed.

21.  It is therefore unfair for the Defendant now to suggest that, in view of the quick settlement that was subsequently achieved, solicitor of less PQE should be engaged.

22.  Besides, I noticed from the Defendant’s Questionnaire as filed on 18 August 2022 that it was Ms Leung Fung Chi and Ms Faye Kang who were the solicitors acting for the Defendant and having the conduct of the present case. 

23.  From public record, Ms Leung was admitted in 2000 (with CW admitted in 2003) and Ms Kang was admitted in 2017 (with KN admitted in 2008). 

24.  In other words, the Defendant’s solicitor Ms Leung is 3 years more senior than CW, whereas Ms Kang was more junior than KN.

25.  In view of this, it seems at least to me difficult for the Defendant to point to the subsequent settlement as a basis to contend that it was unreasonable for the Plaintiff to engage a solicitor of lower PQE than the Defendant’s one.  Even after judgment has been entered and liability not disputed, the matter then turned to assessment of damages which is of some complexity regardless of how judgment on liability was arrived at which I shall explain further below. 

26.  In particular, since the accident involved 3 vehicles, the present case cannot be said to be a very simple and straight forward cases, and the Defendant did request discovery and make enquiry in respect of the 3^rd driver.

27.  I am also of the view that it is not suitable to compare the present case to those authorities as relied on by the Defendant:

(a)  Man Lai Mui v. Director of Territory Development & others, DCPI 1164/2003, unreported, 28 February 2006: this was a personal injury claim by an 80-year old lady who fell down at a construction site on her way home.  Her claims were essentially for past medical/miscellaneous expenses, past cost of care/attention by an overseas domestic helper and the Plaintiff’s daughter, future cost of continued care/attention as aforesaid and an award for pain, suffering and loss of amenities.  There were no claims for past/future loss of earnings or loss of earning capacity;

(b)  Cheng Kwok Hung Samuel & Poon Tung Hoi & others, 7 November 2019 [2019] HKDC 1384 and 27 January 2021 [2021] HKDC 4: this was a case concerning a claim by the Plaintiff who was a passenger in a private car driven by the 2^nd Defendant which collided with a taxi driven by the 1^st Defendant.  The Plaintiff claimed for damages including pain, suffering and loss of amenities, special damages, and future medical damages.  There were again no claims for past/future loss of earnings or loss of earning capacity.

28.  It is to be noted that the items of loss of income and loss of future earning capacity were hotly contested by the Defendant in the present case.  And in fact, the Defendant expressly reserved his right for interrogatories and interlocutory applications in its Questionnaire filed on 18 Aug 2022.  In the said Questionnaire, the Defendant confirmed he did not intend to administer interrogatories “at this stage” in bold type, and, also, he indicated that he confirmed he did not intend to take out other interlocutory application, again “at this stage” with bold type.  In other words, even the Defendant’s legal team did not consider the case to be as clear cut and free of uncertainties, for otherwise they would have been able to say with some certainty whether interlocutory applications would be required at all, and needed not reserve his right to take out further interlocutory applications in the future depending on the progression of the case.

29.  The fact that only quantum is in issue does not make a case easier or simpler.  In any event, it is for the Defendant to persuade the court that the constitution of the Plaintiff’s legal team is improper, not necessary and unreasonable.   

30.  Overall, I am of the view that the complexity and circumstances of the case render it reasonable for the Plaintiff’s legal team to be so constituted.

31.  That said, because of the fact that KN was relatively experienced, I have considered the approach of the Hon Marlene Ng J in the case of Tam Li Kam Wah Agnes, the Administrix of the Estate of Tam Michael Arthur Siu Cheung, the Deceased, and in her personal capacity v Wong Pui Hang William, the Administrator of the Estate of Wong Ian Yik, deceased & Others, HCPI 117/2017, [2022] HKCFI 805.

32.  In paragraph 30 of the judgment, despite there being no dispute on the hourly rate, the Defendant submitted that some straightforward tasks should have been delegated to junior/unqualified fee-earner.  Her Ladyship considered it more appropriate to deal with this issue on item basis rather than adopting an across the board reduction on the hourly rate:

“… This is a factor which I shall take into account because under party and party assessment of costs the court is concerned with ascertaining the proper or necessary costs of notional solicitor(s) of appropriate seniority or unqualified fee-earner to deal with the task in question. In my view, it is reasonable to have a solicitor-in-charge to work with a more junior or unqualified fee-earner (as appropriate), so that fees can be reasonably contained with more general work done by the junior or unqualified fee-earner under focused supervisory input by the solicitor-in-charge. Here, JL could have delegated some straightforward tasks (eg preparing affirmation of service) to unqualified fee-earner, but in adopting such approach time must be allowed for notional reasonable supervision by JL as the solicitor-in-charge. D2 suggested reducing JL’s hourly rate of $5,800 to $4,500 to reflect notional delegation to more junior or unqualified fee-earners. However, as explained below, I consider it more appropriate to deal with this on item basis rather than adopt an across the board reduction”. [Underline added]

33.  I noticed that the Tam Li Kam Wah Agnes (supra) is concerning cost on summary assessment, but I do not think that a different approach should be adopted for the party and party basis on assessment of cost. 

34.  In the present case, I agree that the KN could have handled most of the work as delegated to him by CW but I am of the view that an across the board reduction is not appropriate, and respectfully follow her Ladyship’s approach in dealing with the matter on item basis. 

35.  In the circumstances and as can be seen from the Taxation Decision, I have already made such adjustments and did substantially reduce the time claimed by the Plaintiff, either (1) by reduction of the time claimed, and/or (2) by taxing off the claim by CW and instead by only awarding the time under KN as shown in the table herein below:

Item No	Amount Claimed	Amount Allowed
3.3.1	CW – 25 mins	CW – 10 mins
3.4.1	CW – 25 mins	CW – 10 mins
3.11.1	CW – 20 mins	CW – 5 mins
3.12.1	CW – 60 mins	CW – 30 mins
3.13.1	CW – 125 mins	CW – 45 mins
4.1	KN - 30 mins	KN -10 mins
4.2	KN - 1 hr	KN - 15 mins
4.3	KN - 1 hr	KN - 15 mins
5	CW - 2 hr	CW - 30 mins
11.1	CW - 2 hrs	CW - 75 mins
12.1	CW - 3.5hrs	CW - 2 hrs
13	CW - 30 mins	CW - 5 mins
16.1	CW - 45 mins	KN - 45 mins
16.2	CW - 6.5 hrs	CW - 1 hr             KN - 3 hrs
17.2	CW - 30 mins	CW - 10 mins
19.5.1	CW - 110 mins	45 - mins
21	KN - 1 hr 30 min	KN - 30 mins
24.1	KN - 1 hr	KN - 30 mins
25	CW - 30 mins	CW - 10 mins
30.1	CW - 1 hr 15 mins	CW - 30 mins
31.5.1	CW - 155 mins             KN -15 mins	CW - 60 mins             KN - 10 mins
32	CW - 1 hr	Tax off

36.  I must emphasis that, in coming to the Taxation Decision or during this Review hearing, I bear in mind that the essence of the party and party basis is what is “proper and necessary”.  I also remind myself that the current hourly rates as published by the Law Society’s Circular are not binding on me.  The court should consider the nature of the case and adjust the hourly rates when necessary.  

37.  I must further emphasis that, in the present case, the Plaintiff did not ask for a higher than usual rate and that no counsel had been engaged all along, with CW taking the primary role in and conduct of these proceedings with KN assisting her. 

38.  For all of reasons as aforesaid, I shall therefore maintain my rulings in respect of the hourly rate of CW and KN.

Individual Items

39.  I shall now proceed to deal with each and every Objections as raised by the Defendant.

Item No	Amount Claimed	Amount Allowed	Court’s Answer
12.1 Statement of Damages	CW: 3.3 hrs	CW: 2 hrs	The Statement of Damages consists of 7 pages and was the very first documents setting out all the items of damages of the claim.  The Plaintiff altogether visited 3 different clinics/hospital for treatment, including, TKO A&E, Our Lady of Maryknoll Hospital East Kowloon General Out Patient Clinic (for 21 times) and Robert Black General Out Patient Clinic for 2 times.  Long sick leave has been granted. In support of his claim of PSLA, the Statement of Damages has set out in detail what particular illness or pain that he was suffering as a result of the accident, namely: (a)     Back pain (b)  Numbness, stiffness and weakness of the back; (c)  Restricted range of movement of the back. The other claim items including loss of income, pre-trial loss of earnings, loss of earning capacity and special damages. When coming to these figures, I am of the view that it is essential for the handling solicitors to go through all these 3 medical reports, 1 physiotherapist report, 2 medical records, sick leave certificate, income documents including Inland Revenue record, summary of Member Benefit Statement of Sun Life Insurance and receipts in support of the Special Damages which come to more than 180 pages, and also to draft the same. Further, it is to be noted that, instead of allowing the claimed hour of CW 3 hours, as CW is an experienced solicitor, I allowed 2 hours only for CW, which cannot be regarded as excessive or unreasonable.
16.1 Drafting of the List of Docments	CW: 45 mins	KN: 45 mins	The Defendant argues that the List of Documents contains a total of 22 items and 9 of them are related to the issue of liability, given that Interlocutory Judgment on liability has been entered.  And it further argues that they should be liable to pay the costs up to 11 May 2022 only, which is the date of the Interlocutory Judgment. I disagree with the above.  First of all, as rightly admitted by the Defendant, apart from the 9 items which allegedly only related to liability, there were still 13 items relating to the issue of quantum which was under dispute. The court therefore disallowed the claim of 45 mins under CW, and only allowed 45 mins under KN for the drafting of the same and I do not see that the 45 mins awarded for the drafting of List of Documents is unreasonable or not necessary.
16.2 Considering evidential documents as enumerated in the List of Document throughout the proceedings	CW: 6 hrs 30 mins	CW: 1 hr KN: 3 hrs	The Defendant repeated its argument as in the Taxation Hearing that the Defendant had been convicted and Interlocutory Judgment had been entered.  First of all, under Order 62, Part II, Para 62/App/20, for preparation of a trial, the work under this head includes “(8) Discovery: perusing, considering or collating documents for affidavit or list of document…”.   Hence, I do not agree that the Plaintiff’s solicitor should not be entitled to the time that have been spent for the perusing, considering and collating the documents under the list of documents under the head of preparation of trial. I took into account the submission of the Defendant that KN should be experienced enough to take over this item of work, and therefore reduced the original claim amount of 6.5 hours for CW and only allowed 1 hour under CW and allowed 3 hours for KN during the taxation hearing. I consider that it is reasonable for allowing 1 hour for CW as notional reasonable supervision of CW as solicitor-in-charge. For the purposes of the present Review, I read again the documents under the List of Documents, as stated in Para 62/App/20 of the Rules of High Court. I shall maintain my ruling under this item.
22 P’s Checklist Bundle	KN: 25 mins	KN: 20 mins	After reviewing the document again, I agree with the Defendant that Item 22 is a standard document and adjusted the time allowed for LC: 10 mins and KN: 10 mins.
24.1 Consent Summons	KN: 1 hr	KN: 30 mins	I disagree that it was only a copy and paste exercise.  The Plaintiff solicitor certainly had cross-checked the 2 questionnaires filed by Plaintiff and Solicitors and came to the consent summons dated 4 Aug 2022.  I have specifically compared the 3 documents, namely, Consent Summons, P’s Questionnaire and D’s Questionnaire.  I do not regard 30 mins is unreasonable or not necessary.
27.1-27.2 Sealed copy order	KN: 27.1: 40 mins 27.2: 10 mins (should be 50 mins but not 55 mins as stated in the Objection)	27.1: KN: 35 mins 27.2: No reduction	I disagree that it is only a copying exercise.  I have specifically checked this item during the Taxation hearing.  The Consent Order of Master Cheng contained 15 paragraphs with 14 substantial directions. Further, Master Cheng in fact added 2 new paragraphs and also made various amendments in the other paragraphs. It is not unreasonable for the Plaintiff’s solicitor to spend 35 mins for the drafting and to engross the said document. 35 mins of work cannot be regarded as excessive. For Item 27.2, there have been some very minor amendments and I consider that it should be reduced to KN: 5 mins.
29 Consent Order	CW 45 mins	CW 30 mins	The consent order consisted of 2 pages. It sets out the details as to how the sanctioned payment should be released and how the balance of the settlement sum to be paid.  I maintain my ruling that 30 mins is not excessive.
C.2 Bill of Costs	LCD 11 hrs	LCD 10 hrs	The Bill of Costs consisted of 20 pages with over 100 main items and 10 sub-items. It covers the period from March 2020 to March 2022. I do not regard 10 hours as excessive and unreasonable. I shall maintain this ruling.

Costs of this Review

40.  Despite the fact that I have made only minor adjustments in 2 items out of the total 10 objections, namely Items 22 and 27.2, the Defendant clearly cannot not be regarded as the winning party. 

41.  Both parties have filed their respective Statement of Costs for Summary Assessment and the Defendant has filed its List of Objections thereon.

42.  First of all, both of them claiming the hourly rate of $3,860 for their respective fee earner, namely, Winnie Leung (“WL”) and CW. I do not agree, for the present review application, an experience solicitor as CW is required.  I agree with the Defendant’s objection that a solicitor of 8 years’ PQE should be competent enough to handle this review. I shall therefore allow an hourly rate of CW at $3,000.

43.  The Plaintiff’s Statement of Costs states a total sum of $39,147.  In gist, the Plaintiff’s solicitor claims 3 hours for perusal of document in respect of the Review.  It is not disputed that, the present application is a relatively simple one, only 10 items of objections, I am of the view that 1 hour should be sufficient.

44.  For Part C, CW claimed a total of 1.5 hours for the communications, telephone calls and letters, which is clearly excessive. I reduce them to 25 minutes.

45.  Again, for Part D, CW claimed 3 hours of preparation of documents and perusal of documents, since LCD has been engaged all along, I do not think a lot of communication is needed.  I have therefore reduced 2.5 hours under this Part. 

46.  Insofar as the costs of the LCD, there was only one hearing on 17 October 2023 for 2 hours and 45 minutes, I would allow $5,115 for the costs of the LCD under Part E.

47.  Taking a broad-brush approach, the total costs allowed is therefore $8,007.

48.  I grant a costs order nisi that the Defendant shall pay costs of this Review to the Plaintiff be summarily assessed at $8,007.

[1]    Third party’s vehicle

[2]    Third party’s vehicle