LAM YIN FONG v. TSANG KAM CHEONG

HCPI 1458/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1458 OF 2000

____________

____________

___________________________________

ADDENDUM TO JUDGMENT
- ASSESSMENT OF DAMAGES

____________________________________

1. Since the handing down of the above judgment the Department of Legal Aid has made representations concerning my decision not to make an order for a Legal Aid Taxation, the reasons for which were clearly set out but seem not to have been understood.

2. The Judgment on the matter of costs is quite clear. It seems that, as in many cases, the Department or the assigned Solicitors take the view that some costs incurred will not be recoverable, even on a Common Fund basis from the defendant. As in this case no reasons are given and it seems no attempt will be made to include such an item in the bill to be taxed. The Legal Aid Department, like Solicitors assigned, owe a duty to the Plaintiff to try and recover all such costs from the Defendant. The Plaintiff himself or herself is not and will not be in position to deal with the matter by him or herself.

3. If a Court simply allows a subjective unilateral decision to be made on the basis indicated in the letter, it will be neglecting its duty to a person under a disability. In any event the views of the Official Solicitor should be sought.

4. Common Fund costs are a generous basis of costs for taxation. In the cases that come before me, usually for approval of a settlement, I have expected the Solicitors for the Plaintiff to waive all claim for any costs over and above the common fund costs allowed on taxation. It has been part of the basis of the approval. In practice there should be none. Reasonable and necessary costs are covered by that basis. Costs not allowed on taxation on a Common Fund basis are therefore deemed to be unreasonable and unnecessary.

5. In those circumstances a Court would be neglecting its duty if it allowed lawyers to take costs which they should not have incurred, out of the damages of a Plaintiff under a disability, (or of any other Plaintiff for that matter). It would constitute a licence for lawyers to abdicate judgment and responsibility.

6. Accordingly there is no justification for an order for a Legal Aid taxation. A practice has grown up, of the Plaintiffs' Solicitors agreeing the Common Fund costs with the Defendants' Solicitors but then proceeding to tax what are purportedly described as legal aid costs. This practice must cease. It neglects a proper concern for the Plaintiff's interests and presents a somewhat misleading picture to the taxing officer.

7. If there is an item of costs which is not recovered on a Common Fund taxation the lawyers incurring such costs, i.e. Legal Aid Department or assigned Solicitors, will have to absorb it within the profit costs recovered.