XCHRX CONSOLIDATED PROJECTS LTD. v. THE OWNERS OF THE TUG "DE PING"

HCAJ 3/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION

ACTION NO. 3 OF 2000

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Admiralty Action in rem against : the Tug "DE PING"

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J U D G M E N T

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1. This is an application by the Defendant for gross sum assessment in relation to an application by the Plaintiff made initially on 5 January 2000, followed by a substantial hearing on 6 January for inspection of ship and related documents. By my Judgment dated 10 January 2000, I dismissed the application.

2. The work that the Defendant had to do consisted of three aspects, one is the work done on 5 January 2000 arising out of an urgent ex parte application by the Plaintiff to the court, without notice to the Defendant, but the Defendant had found out on that day from their own client that an application was being made and they therefore had to prepare for the application on a very urgent basis. The second discreet part is the hearing on 6 January 2000 which took more than three hours that day in the afternoon. The third discreet part of the work related to the necessity for further submission by way of written submissions which came in on 8 January 2000. These written submissions were made at the request of the Court and considerable work entailed for the putting in of relevant submissions.

3. The difference between the parties on this application for gross sum assessment come down to this. The Defendant put in their Schedule of Defendant's Costs hours of work amounting to a total of 25 hours, divided into four fee earners : Mr Day at 19 hours, Mr Cutler at 45 minutes, Miss Ng at 3 1/2 hours and Mr Murphy at 21/2 hours. The Plaintiff says that the total number of hours, as well as the work done by the various fee earners is excessive. Their submission as contained in the Plaintiff's Comments on the Schedule is that the total number of hours should not exceed 15.

4. It is to be noted, first of all, before I go into the details of the various contentions, that the Plaintiff attended on 6 January 2000 by Counsel, Mr Nigel Kat, and Mr Kat was also apparently involved in the drafting and preparation of the further written submissions which were given to the Court on 8 January 2000. The Judgment of mine runs to 13 pages. It was reserved and which perhaps gives some indication that this is not a easy matter - the hearing took three hours. In my view, this is a case which fully justified the attendance of counsel. The Defendant, if they had been given more time, especially if they had been given notice that the other side would be attended by counsel, would no doubt have also instructed counsel to attend.

5. The first way I would look at it is this : if this is a matter where both sides were attended by counsel, what would have been a reasonable total sum that would have been charged with attendance of counsel and solicitors. My conclusion is that Counsel's Brief would be considerably more than, I think, the $22,000 suggested as to be the reasonable fee by the Plaintiff. I have no doubt that the Brief fee of an experienced Counsel practicing in this area for both the work done on 6 January, as well as the further written submissions on 8 January, would be perhaps somewhere in the region of $40,000 to $50,000. So my starting point would be, if Counsel alone would be charging that sort of fees, plus solicitors costs, I think the total fees charged sought by the Defendant, in my view, is probably not excessive.

6. The second way of looking at it is to go a little bit more into the details. In relation to 5 January 2000, something like a total of five hours had been charged in relation to work done by both Mr Day and Mr Cutler. I think Mr Cutler was brought in on an urgent basis because of his personal involvement and knowledge of Lady Muriel which is a key authority in this application. I take the view that having regard to the way this matter had arisen on 5 January, that the first two items claimed by the defendant in the Schedule is reasonable. I then move on to 6 January 2000. What really happened on 6 January is that there was the hearing, preparation necessitated by the hearing and attendance of both Mr Day and Miss Ng. Having regard to what I said about the reasonableness of counsel attending, I think those two items of 6 January 2000 of Mr Day and Miss Ng in the Schedule are again not unreasonable.

7. I therefore turn now to the work necessary for putting in the written submissions. Here there is a greater division of work with Mr Murphy doing the work on 6 and 7 January 2000, Mr Day doing the work on 7 January 2000 and Mr Day on 8 January carrying out further work. The written submissions of both sides are very helpful to me and the total number of hours of work come to something like six hours. Again, I do not think that these are unreasonable and then finally the necessary consequential work done on 10 January arising out of receiving the judgment of the court. Therefore, reviewing in detail the amount of work done, I come to the conclusion that it is not unreasonable. I accept that it is a substantial amount of money ($82,000 odd) for an interlocutory application, but then the way this application has arisen was rather unfortunate and it is a price one has to pay for failing in an application which is substantial and somewhat difficult as reflected in my Judgment.

8. I therefore come to the conclusion that the proper sum to be awarded to the Defendant, by way of gross sum assessment in relation to the costs of this application, is the sum of $82,529.17 as claimed by the Defendant. That would include the cost of today, so I am not making any additional assessment for today's hearing.