PBM (HONG KONG) LTD v. TANG KAM LUN, ALLAN AND OTHERS

HCA12138/1997 &
HCA13316/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 12138 OF 1997

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ACTION NO. 13316 OF 1997

BETWEEN:

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(Consolidated pursuant to the Order of Registrar Chu dated 16 July 1999)

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R U L I N G

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1. The consolidated actions, HCA 12138 of 1997 and HCA 13316 of 1997, are represented by bill No. 1.  This bill, of course, relates to proceedings at First Instance before Lam J, as he then was.

2. The order for costs resulting in the current taxation was made on 27 September 2002, some considerable time previously.

3. The present bill was filed on 13 August 2004.  It can therefore be seen, that a period of over two years had elapsed since the orders for costs against the defendants in favour of the plaintiff, were made.

4. This case has had a very protracted history in that the judgment of the deputy judge was appealed against and the appeal progressed through the Court of Appeal, and culminated in a judgment of the Court of Final Appeal, which judgment was handed down on 27 May 2004.

5. Miss Yuen, in responding to Mr Cheung’s contention that there was inordinate and inexcusable delay of well over two years, argued that although the court had general discretion on costs, it was practical and sensible in the circumstances of the chequered history of the case not to have proceeded to taxation until the matter was finally resolved by the Court of Final Appeal.

6. There were other interlocutory bills that had been filed and subsequently taxed and/or agreed between the parties.  At one stage in submission Miss Yuen alluded to the fact that there was an occasion when in respect of one or some of these other bills, the paying party had made a specific request to delay taxation pending final determination by the Court of Final Appeal.

7. Mr Cheung, on behalf of the paying party, said he was not aware of any such communication having been made by his side to the receiving party.  In any event, insufficient details have been provided and I place no reliance on that alleged communication or request from the paying party.

8. The general rule, is that once a cost order has been made, unless the parties agree to settle the costs involved, matters should be taken in hand and taxation should commence as soon as is practicable, in other words, without delay.

9. Depending on the complexity of the bill or the costs involved, the court has in the past provided some leeway to the receiving party in considering what is a reasonable period from the date of the cost order for the filing of the bill for taxation.

10. The general exhortation in the regime provided by Order 62 is that despite the intervention of appellate proceedings, the receiving party should take timely steps to move towards a speedy taxation of any cost orders, failing agreement.

11. From the bill it is apparent that some considerable time would have been  required to get the draft bill in order, but it clearly would not have taken two years or more, as in this case.

12. The court will express displeasure if, first of all, there has been delay; and secondly, the delay falls within the description of inordinate and inexcusable.  Not all delays should be penalised, it has to be inordinate and inexcusable.

13. Bill No. 1 was not filed until 13 August last year.  I see no reason to depart from the usual practice of encouraging a speedy resolution, either by way of taxation or agreement of the cost orders which had been granted in favour of the plaintiff against the defendant.

14. The bill, as I have said, is sufficiently complex to warrant more leeway to the receiving party.  I consider that a period of six months would have been sufficient and reasonable allowance for the paying party to file its bill of costs from 27 September 2002.  I find that the period commencing April 2003 to the date of the filing of the bill on 13 August 2004, a period of 16 months to have been a period of inordinate and excusable delay for which the court will show its opprobrium.  There will be a discount of 15 per cent on the taxed costs payable to reflect this displeasure.  A 15 per cent reduction is accordingly ordered.