XCHRX SPRINGBOK SHIPPING (HK) LTD. and Others v. CLAYTON WONG & CO

1997, No. MP794

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an originating summons taken out by eight former clients against the firm of solicitors.

2. It concerns a number of bills of costs delivered by the Defendant Solicitors, the earliest in March last year and the latest in January this year.

3. Some of the bills of costs were paid by a cheque sent to the Defendant Solicitors under cover of a letter dated 13 February this year from Messrs Clyde & Company who now act for the Plaintiffs. The other bills of costs were paid by the application of monies held by the Defendant Solicitors on account of costs.

4. As to the payment by cheque on 13 February, the Defendant Solicitors say that it was in effect payment against which they released the documents on which they have a lien.

5. The Plaintiffs on the other hand say in effect that they paid in some desperation, having regard to the urgent need of the documents in question, and that it was without prejudice to the taxation under section 67 of the Legal Practitioners Ordinance, Cap. 159 which they now seek.

6. Subsection (1) deals with a client's absolute right to taxation if applied for within one month of the delivery of a solicitor's bill. In the present case, I am concerned with subsection (2) which reads:

"If no such application is made within the period mentioned in subsection (1), then, on the application either of the solicitor or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order -

(a) that the bill shall be taxed;

(b) that, until the taxation is completed, no action shall be commenced on the bill, and any action already commenced be stayed:

Provided that -

(i) if 12 months have expired from the delivery of the bill, or if the bill has been paid, or if a verdict has been obtained or a writ of inquiry executed in an action for the recovery of the cost covered thereby, no order shall be made on the application of the party chargeable with the bill except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the Court may think fit;

(ii) if the bill has been paid, no order under this subsection shall be made where the application for the order is made after the expiration of 12 months from the date of payment of the bill."

7. In my judgment, there are special circumstances here and the proper exercise of my discretion is to accede to the Plaintiffs' application for taxation. Since there is to be a taxation, I do not propose to say any more than absolutely necessary since to do so might prejudice the taxation.

8. The special circumstances are essentially these. First of all, there is cogent evidence, well worthy the attention of a Taxing Master, of overcharging by something in the region of 35 per cent.

9. Secondly, looking at the bills of cost, they are very lacking in particularity, and really do cry out for the attention of a Taxing Master. It is, I am very conscious, no small matter to order taxation after costs have been paid. The discretion to do so is to be exercised with all due caution. But having exercised such caution, I am satisfied that this is a case where the discretion arises and, all things weighed and balanced, ought to be exercised so as to order a taxation. And therefore I so order.

10. I should also mention this. The Plaintiffs also rely on what they put forward as a reservation of their rights to taxation which reservation they made in the letter of 13 February this year.

11. The Defendant Solicitors say that what the Plaintiffs so rely upon does not constitute a reservation, or adequate reservation, of their right to taxation. It further says that no such reservation would assist the Plaintiffs.

12. Taking things in context, I view what was written on behalf of the Plaintiffs as an adequate reservation of their right to taxation. As it happens, I would be in favour of the Plaintiffs even without such reservation. For completeness sake, however, I should say that I am of the view that the fact of such reservation is something on which the Plaintiffs could place some reliance if they have to.

13. In conclusion, I say this. This matter comes before me by way of a re-hearing on appeal from Master Jennings' refusal on 19 March 1997 to order taxation. By ordering taxation I allow the appeal. But in fairness to the Master, it must be said that the Plaintiffs have placed before me further materials which had not been placed before the Master. I have considered it right to take such materials into account; and have done so.

14. I will now hear argument as to detailed directions which I should give as to such taxation and also as to the question of costs.