WONG CHI CHING v. BOCOM INTERNATIONAL HOLDINGS CO LTD

HCA 362/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 362 OF 2014

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D E C I S I O N

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1.  This is the plaintiff's application for review of my taxation decisions in respect of various items of the defendant's bill of costs filed 17 June 2016 as discussed below, which were taxed on party and party basis pursuant to the order of Deputy High Court Judge B Chu (as she then was) dated 23 April 2015. The taxation hearing was held before me on 22 February 2017 (“hearing”).

2.  The basic principles of taxation on party and party basis are laid down in 62/App/6 of the Hong Kong Civil Procedure 2017 Vol 1, which states, inter alia, that the costs chargeable on this basis are all that necessary and proper to enable the adverse party to conduct the litigation, and no more.  Any charges merely for conducting litigation more conveniently may be called luxuries and must be paid by the party incurring them.

Item nos 9, 10 and 11

3.  For these items, the defendant claimed 10 minutes drafting of the Order dated 29 July 2014 by Mr Edmund Chong (“EC”) together with other incidental standard copying, filing and serving charges. According to the plaintiff’s list of objection filed 15 July 2016, she did not raise any objection thereto.  However, she suddenly filed a revised list of objection on 25 January 2017, just about 4 weeks before the taxation hearing without leave of the court.  At the hearing, I refused her oral application to seek leave to do so as I consider that substantial prejudice will be caused to the defendant if leave be granted and that the hearing will have to be adjourned in view of the substantial amendments or revisions in the said revised list of objection and the necessity on the part of the defendant to reply to the same.

4.  Accordingly, these items were fully allowed without deduction.  The plaintiff now applies to review the same suggesting taxing off them entirely.  I fail to see any valid ground for her to do so since I have already refuse leave to revise her list of objection and she is not asking me to review such a decision.  Even if she does so in this review application, I will no doubt reject it again.  In any event, after reading the Order dated 29 July 2014, in which several important orders/directions were given including the extension of time to file the defence pending the determination of the defendant’s application for striking out the plaintiff’s claim, I must say that this order has to be drawn up properly, file and then serve.  In my view, 10 minutes incurred by EC is reasonable in the circumstances and the review for these items must be refused.

Item no 3

5.  The defendant claimed 1 hour for considering the statement of claim by EC whilst the plaintiff originally suggested allowing 45 minutes of EC in her list of objection filed 15 July 2016.  I ruled no deduction for this item at the hearing.

6.  The plaintiff now contended in her application for review that the defendant only needed to consider 13 pages out of 19 pages of this document.  She suggested allowing 39 minutes based on 3 minutes in considering a page, which is 6 minutes less than that originally suggested by her.

7.  To begin with, the plaintiff simply failed to explain why she suggested allowing 45 minutes of EC in her list of objection in the first place but now changed her suggestion to 39 minutes in this review.  It is noteworthy that her list of objection was well prepared in July 2016 and she had not requested to revise her suggestion downward at the hearing.  Similarly, no explanation given by her as to the other items under this review for revising her suggestion downward. Furthermore, in my view, there is no legal basis for her to suggest an arithmetical formula for taxation, like allowing certain minutes in considering a page as the complexity of a legal document may vary from page to page or even paragraph to paragraph.  The court has to look at the specific document or a particular legal work as a whole for the purpose of taxation and assessing the quantum.

8.  In any event, I disagree with her contention as the statement of claim is a very important and very complicated document in this action, which was prepared by the plaintiff’s counsel, Mr Adrian Bell, SC and Ms Christine Yu of junior.  In my view, 1 hour for considering the same by EC is extremely reasonable in the circumstances and the review for this item be refused.

Item no 6.1

9.  The defendant claimed 3 hours 30 minutes drafting of the affirmation of Wang Xichen by EC whilst the plaintiff suggested allowing 2 hours of EC in her list of objection.  I ruled to minus 1 hour for this item at the hearing or in other words, allowed 2.5 hours.

10.  The plaintiff now contended that as it was settled by the defendant’s counsel, she suggested 50 minutes.  I can see no good grounds for her to revise her suggestion downward suddenly for the same reasons given above.

11.  In any event, after reading this document again, which consists of 9 pages excluding various exhibits, I maintain that 2.5 hours for drafting the same is reasonable in the circumstances even though it was subsequently settled by counsel.  The review for this item be refused.

Item no 6.7

12.  The defendant claimed 3 hours for reviewing the relevant documents in LBTC 4643/2010 by EC whilst the plaintiff suggested allowing 1.5 hours of EC in her list of objection.  I ruled to minus 1 hour or in other words, allowed 2 hours.

13.  The plaintiff contended that some documents were duplicated and suggested 1.5 hours again in this review application.

14.  These documents contain 100 pages, which were all exhibited to the affirmation in support of the defendant’s application for striking out the plaintiff’s claim. I consider that the duplication is very minimal and thus maintain that 2 hours for reviewing the same by EC is reasonable in the circumstances.  The review for this item be refused.

Item no 6.8

15.  The defendant claimed 1 hour for reviewing the amended statement of claim in HCA 1494/2012 by EC whilst the plaintiff suggested allowing 20 minutes of EC in her list of objection.  I ruled to minus 30 minutes for this item at the hearing or in other words, allowed 30 minutes.

16.  The plaintiff contended that certain pages of this document were duplicated or similar to another statement and suggested 5 minutes in this review application.

17.  The amended statement of claim in HCA 1494/2012 transferred from LBTC 4643/2010, which consists of 19 pages and marked exhibit to the defendant’s affirmation.  Indeed, I had already taken into account of the issue of duplication at the hearing.  In my view, 30 minutes for reviewing the same by EC is reasonable in the circumstances even though there are some duplications.  The review for this item be refused.

Item no 6.9

18.  The defendant claimed 1 hour for reviewing the defence in HCA 1494/2012 by EC whilst the plaintiff suggested allowing 20 minutes of EC in her list of objection.  I ruled to minus 35 minutes for this item at the hearing or in other words, allowed 25 minutes.

19.  The plaintiff contended that certain pages of this document were duplicated or similar to another document and suggested 10 minutes in this review application.

20.  The defence in HCA 1494/2012, which consists of 22 pages and marked exhibit to the defendant’s affirmation.  In my view, 25 minutes for reviewing the same by EC is reasonable in the circumstances.  The review for this item be refused.

Item no 12

21.  The defendant claimed 1 hour 30 minutes for considering the plaintiff’s affirmation filed 18 August 2014 together with exhibits whilst the plaintiff suggested allowing 1 hour in her list of objection.  I ruled to minus 15 minutes for this item at the hearing or in other words, allowed 1 hour 15 minutes.

22.  The plaintiff almost made the same contention that certain pages of this document were duplicated or similar to another document and suggested 40 minutes in this review application.

23.  This affirmation consists of 10 pages with 46-page exhibits.  For the similar reasons given above, I consider that 1 hour 15 minutes for perusing the same by EC is reasonable in the circumstances.  The review for this item be refused.

Item no 13.1

24.  The defendant claimed 1 hours 15 minutes drafting of the affirmation of Wong Judy Wai-yin by EC whilst the plaintiff suggested allowing 45 minutes in her list of objection.  I ruled to minus 30 minutes for this item at the hearing or in other words, I had indeed accepted the plaintiff’s original suggestion to allow 45 minutes.

25.  The plaintiff suggested in this review to allow 20 minutes based on 6 minutes in drafting a page of the main part and 1 minutes in drafting standard pages.  I entirely disagree as she simply had no basis to make suggestion this arithmetical formula.  This affirmation contain 5 pages drafted by EC. After reading the same again and considering its complexity, I maintain my ruling and reject the plaintiff’s review for this item.

Item no 22.1

26.  The defendant claimed 1 hour 30 minutes for considering the defendant’s skeleton submission of 19 pages prepared by counsel for hearing before Deputy Judge High Court B Chu (as she then was).  The plaintiff suggested allowing 40 minutes in her list of objection.  I ruled to minus 20 minutes for this item at the hearing or in other words, allowed 1 hour 10 minutes.

27.  The plaintiff submitted that hearing was conducted by the defendant’s counsel before Deputy Judge High Court B Chu (as she then was) and now suggested 57 minutes based on 3 minutes per page (ie 3 x 19 pages).  In my view, there is simply no basis for her to suggest this 3-minute formula.  After reading the said skeleton again and taking into account of its complexity, I consider that EC as a prudent solicitor spending 1 hour 10 minutes to peruse the same is reasonable in the circumstances even though the defendant was represented by counsel.  So I maintain my ruling and refuse the plaintiff’s review for this item.

Item no 22.3

28.  The defendant claimed 40 minutes for considering the plaintiff’s skeleton submission of 9 pages prepared by counsel.  The plaintiff suggested allowing 20 minutes in her list of objection.  I ruled to minus 5 minutes for this item at the hearing or in other words, allowed 35 minutes.

29.  The plaintiff now suggested 27 minutes based on 3 minutes per page (ie 3 minutes X 9 pages).  After reading the said skeleton again, I consider that EC spending 35 minutes to peruse the same is reasonable in the circumstances.  So I maintain my ruling and reject the plaintiff’s review for this item.

Item no 22.4

30.  The defendant claimed 2 hours for considering the plaintiff’s list of authorities with 7 cases cited.  The plaintiff suggested allowing 20 minutes in her list of objection.  I ruled to minus 45 minutes for this item at the hearing or in other words, allowed 1 hour 15 minutes.

31.  The plaintiff now suggested 56 minutes based on 10 minutes in considering a case and 3 minutes in a page.  Similarly, I take the view that there is simply no basis for her to suggest this formula.  Further, based on the similar reasons given above, I maintain my ruling and refuse the plaintiff’s review for this item.

Item no 25

32.  The defendant claimed 1 hour 30 minutes for considering the judgment of Deputy High Court Judge B Chu (as she then was) containing 32 pages.  The plaintiff suggested allowing 20 minutes in her list of objection.  I ruled to minus 15 minutes for this item at the hearing or in other words, allowed 1 hour 15 minutes.

33.  The plaintiff now proposed 33 minutes based on the calculation of 3 minutes X 11 pages on the ground of duplication.  For the similar reasons given above and after reading this judgment again, I maintain my ruling and reject the plaintiff’s review for this item.

Item nos. 29, 31, 34.2, 29.1, 29.2, 29.3, 29.4, 30.1, 30.2, 31.1, 31.2, 31.3 and 34.2

34.  In respect of the above items, the parties had reached and duly signed a written agreement.  Thus, I endorsed the same at the hearing.  Now the plaintiff applies to review them on the reason that the agreement was made in unequal situation of information available.  She filed a supporting affirmation on 27 March 2017, in which she said, inter alia, that she made such an agreement based on her mistaken belief that the works done in these items are necessary and proper.

35.  To start with, the parties are always encouraged by the court to reach settlement in the taxation proceedings.  Para 4 of Practice Direction 14.3 states:

“The parties have a duty to discuss the items of costs objected to and to try to reach an amicable settlement, narrow down the items in dispute and consider making offers pursuant to Order 62A.”

36.  After reading the plaintiff’s supporting affirmation and hearing her submission, I cannot see any good reason to review or set aside the agreement duly signed by the parties based on her own alleged mistaken belief which was not induced by the defendant.  Although the plaintiff acts in person, I fail to see how the agreement was made in an unequal situation of information available as I am of the view that she is extremely familiar with each and every documents, detailed background and facts of the case.  It is not fair for the court to review these items, even if I have the jurisdiction, which had been properly agreed by the parties at the hearing.  In the circumstances, her review for all these items must be refused.

Item no 34.1

37.  The defendant claimed 30 minutes by EC and 1 hour by TS (ie trainee) for legal research from time to time.  The parties orally agreed this item to deduct 15 minutes for EC and deduct 10 minutes for TS according to my record[i]. I therefore approved their oral agreement at the hearing.  For the similar reasons given above, I cannot see any good reason to review or set aside this oral agreement.  Accordingly, her review for this item must be refused.

Items B.1.1 and B.1.2

38.  For item B.1.1, the defendant claimed 8 hours spent by counsel for perusal of papers, settling summons etc in the sum of $28,000 ie at the rate of $3,500 per hour and for item B.1.2, brief to attend before DHCJ Bebe Chu (as she then was) for $95,000.  The plaintiff suggested taxing off item B.1.1 and suggested minus $40,000 for item B.1.2 in her list of objection.  I ruled to minus $3,500 ie 1 hour for item B.1.1 and minus $30,000 for item B.1.2 at the hearing.

39.  The plaintiff now proposed 3 hours for counsel in total for item B.1.1 on the ground that solicitors had already claimed time for review documents etc.  It seems that she has accepted Counsel’s hourly rate at $3,500 and not challenged my ruling on item B.1.2.

40.  The general principles for assessing counsel’s fees are set out in para 62/App/31 to 62/App/50 of HKCP Vol.1 2017.  It is not necessary for me to repeat here.  Bearing in mind of these principles, I consider that 7 hours spent by the defendant’s counsel for perusal of papers, settling summons and affidavit, etc in the total sum of $24,500 are very reasonable in all circumstances given that instructing was always expected to assist his counsel in the litigation. The plaintiff’s review be rejected.

Item C9

41.  The defendant orally claimed 12 hours by the law costs draftsman for reviewing files and papers, preparing taxation bundles etc, which was allowed by me for 10 hours in the sum of $16,000 at the hearing.

42.  The plaintiff now proposed 8.25 hours for this item on the ground that costs for preparing some documents by the law costs draftsman should be disallowed.  It seems that she has not challenged the law costs draftsman’s hourly rate at $1,600.

43.  I maintain my ruling and reject the plaintiff’s review for this item since almost all items in the bill could not be agreed or narrowed down by the parties before the hearing, which would no doubt heavily burden the defendant’s law costs draftsman with the preparation for the taxation.

Conclusion

44.  To conclude, I order that the plaintiff’s application for review be dismissed.  As costs shall follow events, I further order her to pay costs of this application to the defendant, to be taxed if not agreed, on a nisi basis which shall become absolute unless any of the parties make application by summons to vary it.