ANTHONIA LOUISE ZOYA ANTON v. HONG KONG AIRCRAFT ENGINEERING COMPANY LTD AND ANOTHER

HCPI 152/2021 and HCPI 153/2021

[2025] HKCFI 2445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 152 AND 153 OF 2021

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(Consolidated by the Order of Master Rita So dated 31^st day of January 2023)

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DECISION ON COSTS

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INTRODUCTION

1.  In the Decision I handed down on 20 December 2024 in this case (“the Decision”), I ruled that the original hearing date fixed for the appeal hearing was wasted as a result of the breach of §12 of PD 5.4 on the part of either P’s handling solicitor or P’s counsel or both.  I therefore directed P’s handling solicitor and/or P’s counsel to show cause as to why they should not either jointly or individually bare those wasted costs personally and on an indemnity basis, including P’s own costs as well as those incurred by D2: (See §150 of the Decision).

2.  On 3 January 2025, P’s solicitors (“P’s Sol”) filed the 3^rd affidavit of Niall Giblin which was sworn on the same date in order to comply with the above direction (“P Sol’s Aff”).  In the same affidavit, P’s Sol also attached a 15-page statement prepared by P’s counsel Mr Nicholas Pirie (“P’s Counsel”) as exhibit stating why he considers either he or P’s Sol should not be made liable for those wasted costs (“the Statement”).

BACKGROUND

3.  In §§122-132 of the Decision, I have explained in detail why I considered a wasted costs order against P’s Sol or P’s Counsel may be appropriate in this case due to the failure on the part of P’s Counsel in lodging his skeleton submissions and list of authorities in time. As explained in those paragraphs, the failure to comply with the provisions of PD 5.4 has led to the court’s inability to read those documents in time prior to the scheduled hearing, making the adjournment necessary. 

4.  P’s Counsel was given an opportunity to explain his failure to comply with PD 5.4 at the original scheduled hearing on 15 October 2024. Instead of accepting responsibility for failing to comply with the said practice direction, he chose to place the blame on D2’s solicitors Messrs Kennedys (“D2’s Sol”) and D2’s counsel Mr Ashok Sakhrani (“D2’s Counsel”): (See §§133-136 of the Decision).

5.  Given the fact that P’s skeleton submissions and list of authorities were lodged very late in the day and the court had no opportunity to read them before the hearing, the court had no alternative but to order a short adjournment of 2 days in order to allow the court sufficient time to read and digest them: (See §§137-139 of the Decision”).

6.  In the Decision, I have also given detailed reasons as to why I considered it was appropriate to order both P’s Sol and P’s Counsel to show cause as to why they should not be personally liable to pay those wasted costs: (See §§140-150 of the Decision).

7.  I shall not repeat the above matters in this decision save to say that the above findings were made according to the information and evidence made available to the court at the hearings on 15 and 17 October 2024.

DISCUSSION

8.  In P’s Sol Aff, P’s Sol has helpfully prepared a “bundle comprising a schedule detailing a timeline of relevant events together with true copies of emails / messages as referred to in the schedule” which was exhibited as “NG-3” under P’s Sol Aff (“the Schedule”). 

9.  P’s Sol submits that, given how the events had unfolded and “by reason of the late compliance of (D2’s Sol) to adhere to the requirements of PD 5.4”, both he and P’s Counsel had “sought to discharge their duties owed to the court to the best of their professional abilities within the restricted time limits”.  P’s Sol further submits that notwithstanding his submissions and if the court still finds that he has failed in his duties owed to the court then he would sincerely apologize and asks the court to limit the wasted costs order in ambit to the hearing on 15 October 2024, treating any fees payable to D2’s Counsel for that day as a refresher with the brief fee incurred being applicable to the resumed hearing on 17 October 2024.

The Schedule

10.  Based on the Schedule prepared by P’s Sol, I accept the following events had occurred between 20 August 2024 and 9 October 2024:-

(a)  The notice of appeal was filed by D2 on 20 August 2024;

(b)  The appeal hearing was fixed on 29 August 2024 before the court on 15 October 2024 (with an estimated length of hearing of 1 hour[1]);

(c)  Brief to P’s Counsel was delivered by P’s Sol together with approximately 400 pages of documents on 13 September 2024;

(d)  A 2.5 hours conference with P’s Counsel took place on 30 September 2024;

(e)  P’s Sol emailed the agreed indices to the appeal bundles to P’s Counsel on 2 October 2024;

(f)  P’s Sol emailed to P’s Counsel on 7 October 2024, inter alia, attaching (i) re-revised chronology; and (ii) referring to PD 5.4[2];

(g)  At 12:39 pm on 9 October 2024, D2’s Sol emailed to P’s Sol attaching soft copies of (i) D2’s skeleton submissions; and (ii) list of authorities, confirming that “hard copy documents and Appeal Bundles will follow” (but without specifying when);

(h)  At 12:56 pm, P’s Sol forwarded the above email from D2’s Sol to P’s Counsel with attachments as received; and

(i)  At 3:58 pm, P’s Sol received hard copies of (i) D2’s skeleton submissions; (ii) list of authorities; (iii) chronology; (iv) appeal bundles; and (v) D2’s statement of costs.

11.  According to PD 5.4, P’s Counsel supposed to have lodged P’s skeleton submissions and list of authorities by 10:00 am on Thursday, 10 October 2024, ie before the long weekend due to the public holiday on Friday, 11 October 2024.  Therefore, the following events happened on that day as recorded in the Schedule are important:-

(a)  P’s Sol texted to P’s Counsel by WhatsApp at 8:07 am invited P’s Counsel to “have a discussion soonest to discuss approach for the submissions”;

(b)  P’s Counsel texted to P’s Sol by WhatsApp at 8:09 am stating “Yes ..I was.going (sic) to start at 10 because of traffic… need the hard copy files to do the paging by say midday…”;

(c)  At 10:30 am, hard copies of the “Court Bundles” (as received by P’s Sol on 9 October 2024 at 3:58 pm from D2’s Sol) were delivered to P’s Counsel;

(d)  At 3:33 pm, pupil to P’s Counsel emailed to P’s Sol attaching P’s skeleton submissions and list of authorities;

(e)  At 3:48 pm, pupil to P’s Counsel emailed to P’s Sol stating that “Mr. Pirie told Both the D2 Solicitors and Mr. Sakhrani that “in light of their late submission we would file and serve on Monday morning as Friday is a public holiday.  If you want anything added or altered we would therefore have time to do so on the weekend….”;

(f)  At 3:49 pm, P’s Sol responded to P’s Counsel by email confirming agreement of the contents of the skeleton submissions;

(g)  At 4:11 pm, pupil to P’s Counsel emailed to P’s Sol stating “So sorry for the typo.  I have amended both this List of authorities (added another case) and the Skeleton arguments (with corrections).  These documents are attached to this email as revised documents.  Hope you all have a good weekend.”           

12.  Judging from the above events, it is apparent that P’s submissions and list of authorities were not ready to be lodged with the court by the close of business on 10 October 2024.  This is reinforced by the fact that on the next day, ie Friday, 11 October 2024 (which was a public holiday), the pupil to P’s Counsel emailed to P’s Sol at 5:49 pm stating “I have attached the cases listed in the List of Authorities to the email for submission on Monday.”

The Statement

13.  In the Statement, P’s Counsel has, besides quoting Order 62 rules 8, 8A and 8B of the Rules of the High Court (“RHC”), cited a number of authorities, including the Court of Final Appeal (“CFA”) case of Ma So So v Chin Yuk Lun & Another [2004] 3 HKLRD 294 and the case of Chiu Sui Ching v Cheng Kwai Hung & Others [2023] HKCFI 1417 (Marlene Ng J; 31 May 2023), both of which involved the discussion of wasted costs order against legal representatives.  At the end of the Statement, P’s Counsel submits that there does not exist any basis for a wasted costs order to be made either against him or against his instructing solicitors. Instead, he submits that D2’s Sol and D2’s Counsel should be made liable to pay the wasted costs on an indemnity basis.

The Law

Order 62, rules 8, 8A and 8B

14.  Order 62 rules 8, 8A and 8B of the RHC govern legal representatives’ personal liability for wasted costs.

15.  Order 62 rule 8 provides as follows:-

(1)   The Court may make a wasted costs order against a legal representative, only if—

(a) the legal representative, whether personally or through his employee or agent, has caused a party to incur wasted costs as defined in section 52A(6) of the Ordinance; and

(b) it is just in all the circumstances to order the legal representative to compensate the party for the whole or part of those costs.

(3)   The Court shall give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make the order.

(4)   When the Court makes a wasted costs order, it shall—

(a) specify the amount to be disallowed or paid; or

(b) direct a master to decide the amount of costs to be disallowed or paid.

(5)   The Court may give directions about the procedure that should be followed in each case in order to ensure that the issues are dealt with in a way that is fair and is as simple and summary as the circumstances permit.

(6)   The Court may direct that notice must be given to the legal representative’s client, in such manner as the Court may direct—

(a) of any proceedings under this rule; or

(b) of any order made under this rule against his legal representative.

16.  Order 62 rule 8A provides that:-

(1)   The Court may make a wasted costs order against a legal representative on its own motion.

17.  Order 62 rule 8B provides the 2-stage process in which the Court will consider whether to make a wasted costs order against a legal representative:-

(1)   The Court shall consider whether to make a wasted costs order in 2 stages—

(a) in the first stage, the Court must be satisfied that—

(i) it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and

(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved; and

(b) in the second stage (even if the Court is satisfied under sub-paragraph (a)), the Court shall consider, after giving the legal representative an opportunity to give reasons why the Court should not make a wasted costs order, whether it is appropriate to make the order in accordance with rule 8.

18.  The liability to pay wasted costs have been extended to counsel under the Civil Justice Reform: See Order 62 rule 8D (1) to (4) and §62/8D/1 of the Hong Kong Civil Procedural 2025 (“HKCP”) at 1369.

Section 52A of the High Court Ordinance, Cap.4

19.  Section 52A(4) states:-

“(4) In any civil proceedings before it, the Court of Appeal or the Court of First Instance may, in accordance with rules of court, by order disallow, or order the legal representative concerned to meet, the whole or any part of any wasted costs. (Added 3 of 2008 s. 22)”

20.  Section 52A(6) defines “wasted costs” as follows:

“(6) In subsection (4), wasted costs (虛耗訟費) means any costs incurred by a party as a result of—

(a) an improper or unreasonable act or omission; or

(b) any undue delay or other misconduct or default,

on the part of any legal representative, whether personally or through an employee or agent of the legal representative. (Added 3 of 2008 s. 22)”

The Authorities

21.  The leading case in Hong Kong on wasted costs order is Ma So So, supra where Li CJ has laid down the approach at 300D-F as follows:

“6. In considering the exercise of the jurisdiction under this rule, the court should approach the matter by dealing with the following questions:

(1) Whether the solicitor was responsible for (i) acting improperly or without reasonable cause or (ii) for undue delay or any other misconduct or default in any proceedings.

(2) Whether such conduct of the solicitor caused costs to be incurred or wasted. This is a question of causation. The causal link between the solicitor’s conduct and the extent of costs incurred or wasted must be established.

(3) Whether the court should exercise its discretion to make an order.

Compare Ridehalgh v Horsefield at [1994] Ch 205 at 231F.”

22.  CJ Li also highlighted the discretion that the Court has in exercising such a jurisdiction: see §§13-18 at 302H-303H.

23.  In terms of procedure, CJ Li has emphasized at 304C-F that the procedure must be “fair” and “simple and summary as fairness permits”:-

“20. Applications may be made in a variety of circumstances and the court must decide the appropriate procedure to be followed to meet the requirements of the individual case. The procedure must of course be fair. But having regard to the nature of the jurisdiction, it should be as simple and summary as fairness permits.

21.  The solicitor concerned should be informed of the allegations made against him: the conduct complained of, how such conduct caused costs to be incurred or wasted and all other circumstances relied on.  Depending on the nature of the allegations made, further directions may have to be considered.  Elaborate pleadings should be avoided.  So should the formal process of discovery: Ridehalgh v Horsefield at 238G-H.  The judge would have to consider how to treat the findings of fact already made in his judgment, whether affidavits should be ordered, and whether oral evidence should be directed, including the possible recall of witnesses in the proceedings.  It would have to be borne in mind that the solicitor was not a party to the proceedings and did not have the right to cross-examine or call evidence: Bahai v Rashidian at 1343B and 1344C-F.”

24.  As CJ Li has commented in Ma So So, supra at 305B-F §24, although the reach of the English wasted costs order is much wider than our rule, the nature of the jurisdiction as a summary one is essentially similar. Thus, the English authorities are of assistance but our rules are not exactly the same.  They are narrower.

25.  In the context of our case, in my judgment, sub-paragraph (6)(a) of Section 52A would apply. 

26.  Thus, the question for this Court to ask is whether there was any “improper or unreasonable act or omission” on the part of P’s Counsel.

27.  In Ridehalgh v Horsefield [1994] Ch 205 at 232, Sir Thomas Bingham MR in giving the judgment of the court in the English Court of Appeal defined the term “improper” as follows in this context:-

““Improper” means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatized as such whether or not it violates the letter of a professional code.”

28.  The term “unreasonable” has been defined by the learned judge in the same judgment as follows:-

““Unreasonable” also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.”

29.  I agree with Marlene Ng J’s following observations regarding the above 2 definitions as stated in §42 of Chiu Sui Ching, supra:-

““Improper” is plainly the more “serious” category of conduct concerned, but “it does not require proof of bad faith”.[3] “It would perhaps be more accurate to describe [the impugned conduct] as conduct which involves a failure on the part of the solicitor to fulfil his duty to the court and to realise his duty to aid in promoting in his own sphere the cause of justice (Myers v Elman [1940] AC 282; KB Chau & Co (a firm) v China Finance Trust & Investment Corp [1995] 2 HKLR 567 (CA). The conduct must be inexcusable and such as to merit reproof (J v C [1995] 1 HKLR 19). The test was whether the conduct amounted to a serious dereliction of duty (Que Jocelyn Co (t/a Scented Delights) v Broadair Express Ltd [1999] 3 HKLRD 104).[4]”

30.  I should stress here that the matter complained of needs not be criminal.  It needs not involved peculation or dishonesty.  A mere mistake or error of judgment is not generally sufficient, but a gross neglect of inaccuracy in a matter which it is a legal representative’s duty to ascertain with accuracy will suffice.  It is conduct which involves a failure on the part of the legal representative to fulfill his duty to the court and to realise his duty in aid of promoting his own sphere the cause of justice: (See Myers v Elman [1940] AC 282; KB Chau & Co (a firm) v China Finance Trust and Investment Corp [1995] 2 HKLR 567 (CA).  The conduct must be inexcusable and such as to merit reproof (J v C [1995] 1 HKLR 19).  The test was whether the conduct amounted to a serious dereliction of duty: See §62/8/1 of HKCP at 1362.  

Consequences of Non-Compliance of PD 5.4

31.  I note that P’s Counsel has not cited §30 of PD 5.4 in the Statement which is important in the context of this case as it was the breach of §12 of PD 5.4 on the part of P’s Counsel that had led to the initial enquiry as to whether the costs wasted due to the adjournment of the hearing on 15 October 2024 should be borne by P’s legal representatives: (See §150 of the Decision).

32.  §30 of PD 5.4 states as follows:-

“30. Those not observing or complying with these directions may be called upon to explain such failure and, in the absence of a satisfactory explanation, may be penalized in costs irrespective of whether or not they are the parties who succeed on the application.  Parties are warned that to ensure observance of and compliance with these directions, a party who has breached any of such directions may, despite his success in the application or appeal, still be deprived of all or part of his costs of the application or appeal as a penalty.  Further, such costs penalty may be imposed irrespective of whether or not the breach has resulted in any adjournment of the hearing or any other forms of wastage of time or costs.” [emphasis added]

33.  In my view, the wordings of §30 are plain.  Any legal representatives who have failed to observe or comply with the directions contained in that practice direction may, in the absence of any satisfactory explanation, be penalized in costs.  In my judgment, the failure to comply with the directions under PD 5.4, in the absence of any satisfactory explanations, can amount to serious dereliction of duty on the part of an advocate.

 The Non-Compliance / Breach of PD 5.4

34.  Having read the Schedule prepared by P’s Sol and the explanations contained in P’s Sol Aff, I am of the view that they had done everything they could and everything properly as instructing solicitors to facilitate P’s Counsel in preparing P’s Submissions in time and in order to comply with the requirements under PD 5.4.  In my judgment, the wasted costs should not be borne by them. 

35.  On the other hand, I note that the Brief to Counsel (together with approximately 400 pages of documents) was delivered to P’s Counsel as early as on 13 September 2024, which was more than 4 weeks before the appeal hearing. The conference with P’s Counsel took place on 30 September 2024.  2 days later, on 2 October 2024, P’s Sol had already sent the agreed indices to the appeal bundles to P’s Counsel.  As it was an appeal against a master’s decision, it would take the form of a hearing de novo.  There was no grounds of appeal which P’s Counsel had to wait for from his opponent in order to prepare his own submissions.  In my view, there was more than sufficient materials for P’s Counsel to start preparing his submissions latest by that date.

36.  On 7 October 2024, in his email to P’s Counsel, P’s Sol had specifically referred to PD 5.4.  Although they claim legal privilege on this email (which P’s Sol are perfectly entitled to do: See §62/8B/2 of HKCP), it is clear that P’s Counsel’s attention had been specifically drawn to this particular practice direction. 

37.  In this case, P’s Counsel repeated his submission made at the hearings on 15 and 17 October 2024 before me that he could not prepare his skeleton submissions because D2 had failed to serve the appeal bundles in time on his solicitors.  Further, he alleged that D2 had served the skeleton submissions late in time, therefore not giving him the opportunity to prepare his skeleton submissions in time.

38.  As stated in the Decision, I have no hesitation in rejecting such groundless allegations.  In my judgment, P’s Counsel could have prepared his own submissions and lodge them with the court even if he had not received the appellant’s submissions. He could have started to prepare his submissions and have it lodged with the court within time by working on the documents provided to him by his solicitors (which were sent to him with his Brief on 13 September 2024) and according to the agreed indices (which were sent to him by his solicitors on 2 October 2024). As I mentioned in the Decision, a party’s duty to lodge his submissions and list of authorities is independent of the duty of his opponent when observing the strict timeline stated under PD 5.4.    

39.  I would like to point out here that in §29 of PD 5.4 under the heading of “Waiver”, it has been specifically provided that “(A) party may apply to the hearing Judge by way of letter with a copy to the other side for waiver or abridgement of any of the requirements in this Practice Direction provided that such application should be made well in advance before the hearing with reasons provided.”  However, it has also been stated that “only in exceptional circumstances will a waiver be given.”

40.  I note that no such application for waiver has been made to the court by P’s Counsel prior to the hearing on 15 October 2024.

41.  I should emphasize here that such “waiver” cannot be obtained from the opposing party or parties.  It can only be obtained from the court. Thus, in my view, it is wrong and inappropriate for a party to approach the opposing party or parties to either notify them or seek their indulgence or consent for the lateness in lodging their skeleton submissions or list of authorities.  The duty under §12 of PD 5.4 is owed to the court and not to his opponent.   Therefore, in my view, P’s Counsel’s telephone calls made to D2’s Sol and D2’s Counsel (or their staff) on the day of the deadline to inform them that P’s skeleton submissions and list of authorities would only be lodged after the long weekend “due to their late submission” would not excuse his clear breach / non-compliance of §12 of PD 5.4.  In my view, such act was not only presumptuous but rather arrogant. 

42.  In my judgment, the duty for counsel to comply with the practice direction to lodge the skeleton submissions and list of authorities in time, like turning up in court on time for a hearing, is a very basic and fundamental one.  It does not depend on whether he has received the hearing bundle and skeleton submissions from the other side or not.  If the applicant/appellant fails to or late in lodging their hearing bundle or submissions (as happened in this case), the respondent’s counsel is still required to lodge his own skeleton submissions and list of authorities within the required period, ie 48 hours before the hearing.  In such case, counsel can always prepare and lodge his submissions and list of authorities with the express qualification that they are prepared without the benefit of sighting the applicant/appellant’s skeleton submissions and list of authorities.  They can also leave the page reference number of documents blank in their submissions for them to be filled in later. In my experience, this happens on a regular basis and counsel of all ages and experience do this all the time.  In my view, the late submission of his opponent do not excuse a respondent from failing to comply with the requirements under PD 5.4.     

43.  In this case, it is not as if P’s Counsel did not know what documents would be contained in the appeal bundles (as he had received the agreed indices of them from P’s Sol on 2 October 2024).  Nor was it the case that he did not have the documents of the case to work on (as he had received them from P’s Sol on 13 September 2024).  What is astounding in this case is the fact that in P’s 7-page skeleton submissions submitted for the purpose of resisting D2’s appeal at the appeal hearing, hardly any reference was made to the page numbering of the appeal bundles and/or to D2’s Counsel’s skeleton submissions.  The majority of the contents made no “connection” with D2’s Counsel’s skeleton submissions or the appeal bundles at all.  This amply demonstrates that P’s Counsel did not need to have D2’s skeleton submissions or the hard copies of the appeal bundles in order to prepare his own submissions.  To now try to place the blame on the other side in order to exonerate his own failure in my view is rather pathetic.

44.  In any event, the soft copies of D2’s skeleton submissions and list of authorities had been forwarded to P’s Counsel by P’s Sol at 12:56 pm on 9 October 2024, a 3-hour delay from D2’s deadline in lodging those documents according to §11 of PD 5.4.  Thus, there is in my view no reason why P’s Counsel could not have prepared his skeleton submissions and list of authorities well before he received the hard copies of the appeal bundles and skeleton submissions from D2.

45.  It is obvious that P’s Counsel did not see the need or urgency to prepare his skeleton submissions and have them lodged with the court by the deadline imposed by PD 5.4.  The Schedule shows that he had not even started to work on it yet until 10 October 2024, the very last day he was supposed to have it lodged with the court.  In fact, it appears from the Schedule that the “final” draft of P’s skeleton submissions was not ready until late afternoon on that day when his pupil emailed it to P’s Sol. Only on Friday, 11 October 2024, the pupil to P’s Counsel emailed the authorities to P’s Sol for lodging on the following Monday, 14 October 2024.

46.  In this case, I find it was the delay of P’s Counsel in lodging his skeleton submissions and list of authorities (and not the slight delay of D2’s lodging of theirs) which had caused the adjournment.

The Causative Link

47.  In terms of causative link, based on the above analysis, there is no doubt in my mind that it was due to the non-compliance / breach of §12 of PD 5.4 on the part of P’s Counsel that has caused the adjournment on 15 October 2024 and the unnecessary wastage of costs as a result.                 

CONCLUSION

48.  In my judgment, there is no doubt that there was non-compliance of §12 of PD 5.4 on the part of P’s Counsel in this case. With respect, I do not see how he could blame D2’s Sol and D2’s Counsel in sending him the hard copies of D2’s submissions a few hours late as a reason for his own failure.  I do not accept that as reasonable or satisfactory explanation.  As said, there was no reason why P’s Counsel could not have started preparing P’s skeleton submissions and list of authorities much earlier and have them lodged with the court before the deadline on 10 October 2024.    

49.  In conclusion, in my judgment, the failure to lodge P’s skeleton submissions and list of authorities in accordance with the practice direction was an improper act or omission on the part of P’s Counsel.  However, I accept that this does not involve any element of bad faith or dishonesty on his part. It was a failure to comply with the provisions of PD 5.4, which has caused the adjournment of the hearing and unnecessary costs to be incurred.   I find such non-compliance to be inexcusable and merits reproof.   I also find that as a serious dereliction of duty on the part of P’s Counsel.

50.  In the circumstances, I find that P’s Counsel should be personally responsible for paying the wasted costs incurred as a result of the adjournment of the hearing on 15 October 2024, including the costs of D2’s Sol and D2’s Counsel in attending the hearing on that day.  However, as submitted by P’s Sol, D2’s Counsel costs should be assessed based on that of a refresher rather than the brief. 

51.  As to the costs unnecessarily incurred by P due to the non-compliance of PD 5.4 of her own counsel, principally in the form of the attendance of her solicitors in court on 15 October 2024 (for 45 minutes) and an additional refresher charged by P’s Counsel, I do not consider that D2’s Sol and D2’s Counsel are entitled to charge them to their lay client.  In my view, it was not due to the fault of P that the hearing on 15 October 2024 was adjourned and she should not be asked to pay for them, including the refresher charged by P’s Counsel for the adjourned hearing.  I direct that P’s Sol and P’s Counsel shall not be entitled to charge P for those costs.

52.  Based on the statement of costs submitted by D2’s Sol for the wasted costs incurred as a result of the adjournment of the hearing on 15 October 2024, I hereby summarily assess those costs at HK$75,000 (which including D2’s Counsel’s fee on that day (charged on a refresher basis)), such costs to be paid forthwith by P’s Counsel.