XCHRX ALCATEL CABLE CONTRACTING NORWAY AS AND ANOTHER v. TITAN LOGISTIC(S) PTE LTD AND ANOTHER

HCCL259/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO.259 OF 1996

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J U D G M E N T

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1. On 13 October 2000, this court delivered its judgment in this action which, as that judgment recites, involved a claim for damage to and loss of cargo which occurred on board the vessel "MV MARIS" during her passage from Gothenburg to Oslo on 17 October 1995.

2. The result of that judgment was that the plaintiffs, and in particular the 1st plaintiff which was the operative plaintiff, was successful in recovering judgment against the absent 1st defendant, the Singaporean company Titan Logistics Pte Ltd, but failed in its suit against the local Hong Kong stevedoring company, Kania Limited.

3. There are now before the court two costs summonses consequent upon that judgment. The first summons, dated 30 October 2000, has been taken out by the successful 2nd defendant and Mr Miu, who appears today on behalf of the 2nd defendant and who was junior counsel throughout, asks that in recovering the costs to be paid to his client, the 2nd defendant, the matter be certified throughout as fit for two counsel. He does not pursue paragraph 2 of that summons which involved a claim for like relief against the 1st defendant against whom a contribution notice had been issued.

4. The second summons is the plaintiffs' summons dated 6 November 2000. I can see how, in all probability, this summons was consequential upon the 2nd defendant's application. Be that as it may. The plaintiffs by this summons seek what is commonly known as a "Bullock" order, wherein they seek an order that the 1st defendant, the Singaporean company which as matters transpired played no part in this trial, should indemnify the plaintiffs against such costs as are ordered to be payable by those plaintiffs to the 2nd defendant.

5. I take the latter summons first. Mr Laracy appears on this occasion to argue the point. He alludes to the fact that it was felt necessary by the plaintiffs to proceed against both defendants, not least because, as it transpired, the principal line of purported defence which was pleaded on behalf of the 1st defendant was to the effect that the 1st defendant acted at all times as agent of the plaintiffs, and thus, in Mr Laracy's words, it behoved the plaintiffs to "keep their powder dry" against the 2nd defendant. He accepts, of course, that the matter is one for the court's discretion, having regard to all the circumstances of the case.

6. I find it difficult to accept his submission in this regard. The case mounted against the 1st defendant was in contract, and the case mounted against the 2nd defendant, which in my view was a considerably more difficult case, was in tort and bailment. That at least was the state of the pleadings until Mr Sussex SC, who appeared at this trial on behalf of the plaintiffs, made it clear at the outset that he was not pursuing bailment. Accordingly, therefore, the broad parameters of the action, as the judgment makes clear, was an action in contract against the 1st defendant, the Singaporean company, who had directed the demobilization operations for the 1st plaintiff, and an action in tort involving a number of interesting duty of care/standard of care questions against the 2nd defendant, the local stevedoring company, which had been retained by the 1st defendant to actually do the lashing job.

7. Looked at in the round, I can see no basis established for the indemnification asked for, and I reject it. The 2nd defendant was always, it seems to me, very much in the plaintiffs' sights. The action failed, and I can see no reason in the circumstances why the 1st defendant, who was also in the plaintiffs' sights, and against whom judgment was given, should now be required to pick up the bill for the 2nd defendant's costs as well. Accordingly, the plaintiffs' summons dated 6 November 2000 is dismissed. I make no order as to costs on that summons.

8. I turn now to the 2nd defendant's summons of 30 October 2000. This is, as I have said, concerned the recovery by the 2nd defendant of its taxed costs against the plaintiffs. The 2nd defendant is concerned that those taxed costs should include the costs of the two counsel employed throughout this case, Mr Edward Chan SC and Mr Nelson Miu, its junior counsel. In this regard, Mr Miu was constrained to say that he did not feel that he was a 'straw' junior and in response, this court was minded to say that it had never regarded him as such. Mr Miu reminded the court that this matter is one for the exercise of judicial discretion, but in this regard he drew the court's attention to certain factors. The plaintiffs' claim, whilst not perhaps large by Commercial Court standards, was nevertheless not insubstantial. It was in excess of HK$3 million, which for a local stevedoring company, Mr Miu suggested, could not lightly be discounted. The matter also, said Mr Miu, involved some difficult concepts. It was only on the first day that bailment, for example, had been abandoned, and difficult considerations in terms of duty/standard of care arose in what was a novel situation, at least in terms of the reported authorities. Indeed, Mr Miu quoted to the court the words of the judgment to the effect that this was "by no means a simple case". Accordingly, he submitted, it was perfectly reasonable for his client, which was naturally concerned about being the target of this suit, to have instructed two counsel. Mr Miu told me that two counsel had been employed from the outset, although he also stated that he was the counsel predominantly employed during the early stages of this action. I would not have expected it to be otherwise.

9. Mr Laracy opposes the application as made. Naturally he does not wish his client to be exposed to a greater costs bill than should properly be the case. He accepted properly that the matter is one for the exercise of judicial discretion, and he quoted the time honoured benchmark which the court follows in arguments such as this, namely whether in all the circumstances of the case, it is reasonable that two counsel be instructed. He also said, and this was a matter that arose at the end of argument, that whatever else may or may not be the case, it was unusual to have two counsel from the outset in 1996, and whilst conceivably there could have been two counsel employed for the trial, there could be no justification for having two counsel throughout. From his point of view, he was not on a particularly easy wicket in terms of attacking the presence of senior counsel, and he submitted with restraint in this regard, not least because his own highly able counsel was himself a senior counsel, albeit he had become senior counsel since the commencement of the case, and thus was, if seniority has any relevance at all, a more junior silk than Mr Chan on the other side.

10. The matter is one of impression for the court seized with an argument such as this, and it is fortunate that the case is still relatively fresh in the court's mind, the judgment having been handed down just over one month ago. I do think that the involvement of two counsel can be justified in this case. It was not a particularly straightforward matter, although, of course, the structure of the case and the way in which it could have played out was substantially altered by the late absence from the trial of the 1st defendant, whose solicitors came off the record, if I recall correctly, no more than ten days to two weeks prior to the commencement of the trial. In any event, notwithstanding the absence of the 1st defendant, questions were raised which were not easy of resolution, in particular in terms of the arguments upon the tortious basis of the claim. It should also not be overlooked that there were in place, even if they did not figure as large as they otherwise might have done, contribution notices inter se between the 1st and 2nd defendants respectively. Once again, these matters are adverted to in the judgment. So I have concluded that the case is fit for two counsel, albeit I do not go as far as Mr Miu would wish.

11. After some reflection, I propose to make the following Order on the 2nd defendant's summons :-

That in taxing the costs to be paid by the 1st and 2nd plaintiffs to the 2nd defendant, the case is to be certified as fit for two counsel, save that the taxed costs of the 2nd defendant incurred for counsel prior to 1st July 1998 are to be the costs of junior counsel only.

I hope that this Order is clear from the taxing master's viewpoint and that no further clarification is needed. The date of 1st July 1998 has been chosen because from that time onwards witness statements began to be filed.

12. As to the costs of this application this morning, Mr Laracy understandably felt constrained to oppose the application for two counsel, and it is fair to say it did occasion some reflection. However notwithstanding this opposition, he has lost on the point. Accordingly, I make the further Order that the costs of this application by the 2nd defendant pursuant to its summons dated 30 October 2000 are to be paid by the 1st and 2nd plaintiffs to the 2nd defendant, such costs to be taxed if not agreed.

13. That, I think, is all for this morning. I thank the parties for their assistance.