KAM SIU KEI v. YUEN ON ENGINNEERING LTD AND ANOTHER

HCPI 573/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 573 OF 2010

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REVIEW OF TAXATION

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1.  The plaintiff commenced the taxation against the two defendants by filing a bill of costs pursuant to the costs order of Master Li made on 23 April 2013 and the costs order of Master R Yu made on 19 August 2013, which ordered, inter alia, that the scale of costs to be applied be the High Court scale and the costs of this action from 15 April 2013 up to the date of the order including the costs of and occasioned by the hearing scheduled for 20 August 2013 be to the plaintiff.

2.  At the taxation hearing on 26 January 2015, I made the following rulings in respect of the following items of the bill:

Item under  Part II Section A		description of costs/fees claimed by fee earner, Alvin Lim (AL)		My ruling
75		Drafting supplemental witness statement of Kam  Siu Kei (the plaintiff) dated 28.12.2011 AL-1 hr 30 min		Allowed 1 hr
76		Considering 2nd supplemental witness statement of  Kwok Yiu Sing (for the defendants) dated 16.2.2012 AL-1 hr		Allowed 30 min
77		Considering 2nd supplemental witness statement of Chan On  Hing (for the defendants) dated 16.2.2012 AL-20 min		Allowed 10 min
89		Considering Re-revised statement of damages dated 9.10.2012 drafted by Counsel AL-3 hr		Allowed 1 hr
94		Considering Revised Answer to Re-revised statement of damages dated 16.1.2013 AL-1 hr		Allowed 20 min
104.2		Considering and revising 3rd Affirmation of Alvin  Lim settled by Counsel AL-40 min		Allowed 10 min

Item under  Section B		description of costs/ Counsel’s fees by  Mr Steven Lau (called at 2000)		My ruling
6		Counsel fee for drafting Re-revised statement  of damages $8,000 claimed		Allowed in full
7		Counsel fee for perusing papers, advising and  settling affirmation re Summons on scale of costs $28,000 claimed		Allowed $8,000

3.  This is the defendants’ application for review of my above rulings.

Items 75 to 77 under Part II Section A

4.  For the above three items, Mr Cheung for the defendants argued that the plaintiff was not entitled to as the plaintiff took out a summons for, inter alia, leave to serve supplemental witness statement on 8 December 2011 and that the costs order made by Master K K Pang on 22 December 2011 which was subsequently amended on 26 April 2013 was in favour of the defendants.

5.  I find it necessary to set out the relevant paragraphs of the amended order made by Master K K Pang below:

(1)   The plaintiff do have leave to file and serve his supplemental witness statement as to fact within 14 days from the date of this order ie on or before 5 January 2012.

(2)   Leave to the 1^st and 2^nd defendants to file further supplemental witness statements in response thereto (if so advised) within 42 days thereafter ie on or before 16 February 2012.

(3)   .....

(4)   .....

(5)   .....

(6)   The costs of, occasioned by and consequential upon the application for leave by the plaintiff to serve supplemental witness statement and to re-amend the amended statement of claim be to the defendants in any event (“Costs Order of Master Pang”).

(7)   .....

6.  The plaintiff’s supplemental witness statement was then filed on 4 January 2012.  In the application for review dated 9 February 2015, the defendants contended that notwithstanding the Costs Order of Master Pang, I was erred to allow costs claimed by the plaintiff for drafting supplemental witness statement when no such cost was awarded to him in the Costs Order of Master Pang.

7.  Mr Cheung for the defendants also relied on para 62/1/3(13) of HKCP 2016 Vol 1 which cites the decision of Master Kwan made on 29 April 2006 in ASM Assembly Automation Ltd and other v Chan Lo Kwan and other[1]. The learned Master formulated her own test to decide whether an item can be regarded as “costs of and occasioned by the adjournment” in para 4 of her written decision.

8.  In my view, this decision must be distinguished and is not applicable here since the learned Master was dealing with the taxation pursuant to an order for “costs of and occasioned by the adjournment”.  Now I was not dealing with the taxation of the defendants’ bill pursuant to the Costs Order of Master Pang.  Instead I was dealing with the taxation of the plaintiff’s bill pursuant to the costs order of Master R Yu made on 19 August 2013, which ordered, inter alia, that the costs of this action be to the plaintiff.

9.  Furthermore, the wordings of the costs order in the decision of Master Kwan are not the same, though similar, to that of the Costs Order of Master Pang.  I am of the view that the phrase “costs of and occasioned by the adjournment” is different from “costs of, occasioned by and consequential upon the application”.  For the former, the word “adjournment” is the key whilst the latter is “application”.  In appropriate circumstance, the court is always justified to order “costs of and occasioned by the adjournment” to one party but to order “costs of, occasioned by and consequential upon the application” to another party.

10.  Mr Cheung for the defendants drew my attention to a letter dated 9 December 2011 from the plaintiff’s solicitors to the defendants’ solicitors enclosing a draft supplemental witness statement of the plaintiff.  If the defendants file a bill pursuant to the Costs Order of Master Pang, I may consider that they are entitled to claim costs for perusal of the said draft.  However, it does not mean that the plaintiff is not entitled to claim the costs for drafting the same based on the costs order of Master R Yu made on 19 August 2013.  I do not see any conflict or contradiction.

11.  More importantly, I agree with the submission of Mr Ho for the plaintiff that the plaintiff’s supplemental witness statement was filed in reply to the defendants’ witness statement, which must form part of the issues in the action.  Hence, the costs incurred for drafting the same must be covered by the costs order of the action.  Similarly, the defendants’ supplemental witness statement was filed in reply to the plaintiff’s supplemental witness statement and the costs incurred for considering the same are also covered by the costs order of the action.

12.  In the circumstances, I dismiss the review of my decisions for items 75 to 77.

Item 89 and 94 under Part II Section A and item 6 under Section B

13.  For the items 89 and 94 under Part II Section A, the defendants stated in the application for review dated 9 February 2015 that there is a costs order made by Master Li on 19 December 2012 in favour of the defendants.  Notwithstanding the same, I was erred to allow costs claimed by the plaintiff for considering the Re-revised statement of damages dated 9 October 2012 which was drafted by Counsel on 25 September 2012 as well as the Revised Answer to Re-revised statement of damages dated 16 January 2013 filed by the defendants.

14.  In order to understand the defendants’ argument, I think that I need to set out some relevant applications and orders first.

15.  Pursuant to para 8 of the order made by Master Ng (as she then was) on 28 August 2012, leave be granted to the plaintiff to file and serve the Re-revised statement of damages on or before 9 October 2012 and leave to the defendants to file and serve the Revised Answer to Re-revised statement of damages on or before 24 October 2012.

16.  On 25 September 2012, the plaintiff took out a summons for, inter alia, filing and serving his revised statement of damages, which was heard on 4 October 2012 and adjourned to 11 October 2012 (“plaintiff’s summons”).  In fact, the revised statement of damages has already been filed on 21 July 2011.  I have no idea as to why the plaintiff had to take out this summons.

17.  On 4 October 2012, the defendants took out a summons for striking out certain paragraphs of the plaintiff’s revised statement of damages, which was also returnable on 11 October 2012 (“defendants’ summons”). 

18.  On 9 October 2012, the plaintiff filed and served the Re-revised statement of damages in accordance with para 8 of the order made by Master Ng (as she then was) on 28 August 2012.

19.  Eventually, both of the plaintiff’s summons and the defendants’ summons were adjourned for argument which was fixed to be heard on 23 January 2013 with two hours reserved.

20.  By the consent summons filed on 19 December 2012 which was ordered in terms by Master Li on the same day, it was ordered, inter alia, that leave be granted to withdraw both of the plaintiff’s summons and the defendants’ summons and that costs of and occasioned by the plaintiff’s summons inclusive costs reserved be to the defendants (“Costs Order of Master Li”).

21.  The defendants then filed and served the Revised Answer to Re-revised statement of damages on 16 January 2013 pursuant to para 2 of the order made by Master Li on 19 December 2012.

22.  I fail to see how the Costs Order of Master Li would prevent the plaintiff from claiming the costs for considering the draft Re-revised statement of damages prepared by his own Counsel and for considering the Revised Answer to Re-revised statement of damages, which must be covered by the costs order of the action. 

23.  As to the item 6 under Section B, the issue is whether it is justified for the plaintiff to engage Counsel to draft the Re-revised statement of damages.  In my view, it all depends on the circumstances.  In this case, the fact that the plaintiff was detained in prison for uncertain period of time due to the criminal charge at the High Court against him will no doubt affect the question of appropriate multiplier as stated in para 52 of the Re-revised statement of damages.  I therefore consider that as it is not a straightforward issue, it is justified for the plaintiff to engage Counsel to draft the Re-revised statement of damages.  Furthermore, I just allowed $8,000 for Counsel’s fee in respect of this document, which is equivalent to roughly 2-hour time for drafting by AL whose hourly rate was allowed by me at $3,600.  Even if I disallowed such Counsel’s fee and treated it to be prepared by AL, the result would be more or less the same. Hence, I reject the defendants’ argument and dismiss their review of my decisions for items 89 and 94 under Part II Section A and item 6 under Section B.

24.  At the review hearing, Mr Ho for the plaintiff conceded that he misled me at the taxation hearing on 26 January 2015 that the plaintiff did not claim any costs for preparing the revised statement of damages but only charged the costs for preparing the Re-revised statement of damages.  Nonetheless, that is not the case and the plaintiff did claim and agree with the defendants for one hour for drafting the revised statement of damages in item 37 of the bill.  In my view, such concession made by Mr Ho has no relevancy for the said items.

Item 104.2 under Part II Section A and item 7 under Section B

25.  I allowed ten minutes for AL for considering and revising the 3^rd Affirmation of Alvin Lim settled by Counsel and $8,000 for Counsel fee for perusing papers, advising and settling the said affirmation relating to the issue on scale of costs.  Since the parties settled the claims for the sum of $140,000 only, a hearing was fixed on 20 August 2013 with two hours reserved for argument on scale of costs.  Eventually, the parties agreed the scale of costs to be applied be the High Court scale instead of the District Court scale and to vacate the said hearing by way of a consent summons.

26.  In view of the small settlement amount accepted by the plaintiff, it is by no mean easy for the plaintiff to argue the High Court scale to be applied.  I have no idea as to why the defendants would make the concession to apply the High Court scale.  Nonetheless, I consider that the 3^rd Affirmation of Alvin Lim which is quite lengthy consisting of 18 pages (excluding the exhibits) must be a very crucial document as it was made in support of the plaintiff’s contention for the High Court scale. Needless to say, if the scale of costs to be applied be the District Court scale, the total sum of the plaintiff’s costs taxed and allowed must be substantially lower.  In the circumstances, I consider that it is justified for the plaintiff to engage Counsel to advise on the complicated issue on scale of costs and prepare the supporting affirmation since such works are not within the competency of the handling solicitor.

27.  Further, Counsel’s fee claimed for item 7 under Section B was $28,000 but I only allowed $8,000, which is equivalent to roughly 2-hour time spent by AL.  Even if I disallowed such Counsel’s fee and treated it to be prepared by AL, the result would be more or less the same.  Hence, I dismiss the defendants’ review of my decisions for the said items.

Conclusion

28.  The defendants’ application for review be dismissed.  I see no reason why the costs shall not follow the event.  I order the defendants to pay costs of the review application including all costs reserved.  I direct that such costs be summarily assessed by me in chambers without oral hearing, the plaintiff do lodge and serve his statement of costs within 7 days and the defendants do lodge and serve his statement of objection within 3 days thereafter.