LEE, SAMUELTAK v. THE HONG KONG CHINESE CHRISTIAN CHURCHES UNION AND ANOTHER

HCAL27/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 27 OF 2008

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DECISION ON ASSESMENT OF COSTS

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1.  By the Decision handed down on 25 September 2009, I dismissed the applicant’s summons for the issue of a letter of request in the USA against the 2^nd respondent and made a costs order nisi that the applicant pays the costs of the 2^nd respondent together with a certificate for two counsel.  I also directed that the 2^nd respondent’s costs be assessed on a gross sum basis and gave directions to facilitate the assessment.  The 2^nd respondent filed the Statement of Costs on 20 October 2009 and the applicant had filed the Comments / Objections to the Statement of Costs on 3 November 2009. 

2.  I set out below my assessment of the 2^nd respondent’s costs and the reasons for it.

General

3.  Before dealing with individual items, I should point out that the 2^nd respondent’s costs are assessed on party-and-party basis such that only costs that are necessary or proper will be allowed: Order 62, rule 28(2) of Rules of the High Court (cap. 4A).  Costs that may be justified on other basis, for example, the involvement of more than one fee earner on one item of work, will be disallowed.  Hence, indications in this Decision that the costs are not justified or are unnecessary should be taken to mean that they are not justified or unnecessary on the basis of party-and-party costs.

Item A3: Fee earners’ rates

4.  The applicant objects to the hourly rate of BC and RW on the basis of heavy reliance of counsel and duplication in their work.  I accept from the Statement of Costs that counsel were closely involved in the conduct of this case and the preparation of documents, but I am not prepared to say that the solicitors’ involvement is perfunctory.  This is particularly the case for BC, who is a very senior and experienced practitioner. The Statement of Costs shows he had been personally and closely involved in the conduct of the case throughout.  I am of the view that concerns on close involvement of counsel and duplication of work are more appropriately addressed in considering the time taken for the work.  I allow the hourly rate of BC and RW as claimed. 

5.  As to the hourly rate of $1,500 claimed by the Legal Executive (LE), I am of the view that it should be reduced to $1,200.  Primarily, I have regard to the fact that the rate normally allowed on taxation for a trainee solicitors is only $1,300 and that the nature of the work undertaken by the LE is not of an unusual or complex nature, but appears to be more clerical in nature.

Part B: Communication

B1:    Communication / corresponding with client (Rider 1)

6.  In respect of faxes or letters to clients enclosing or forwarding documents and copied letters to counsel, for which 10 minutes were claimed, it should be reduced to 5 minutes.  14 items are involved, hence a deduction of 70 minutes of BC’s time.  

B2:    Communication / corresponding with Messrs Stephenson Harwood & Lo (Rider 2)

7.  The letter to SHL dated 18/6/2008 was drafted by counsel.  It is not necessary for BC to incur a further 30 minutes on it: see also paragraph 10 below.  The applicant also points out that some of the letters are short letters and it is not justified to claim 10 minutes and 5 minutes respectively for writing and perusing them.   I consider this is a valid objection.  Overall speaking, BC’s time is reduced by 2 hours.

8.  The incurrence by LE of a total of 75 minutes on four telephone conversations regarding the service of the applicant’s submissions is too long.  It is reduced by 45 minutes.

B3:    Communication / corresponding with counsel (Rider 3)

9.  In respect of faxes or letters to counsel enclosing documents, for which 10 minutes were claimed for each of them, it should be reduced to 5 minutes.  Likewise, the time for writing the letters to settle fee note should be reduced from 10 minutes to 5 minutes for each of them. 

10.  Regarding the letter dated 18/6/2008 to SHL, it was drafted by counsel and senior counsel had charged $10,500 for the work involved: see D1. Under B2 and Rider 2, BC claimed 30 minutes on this letter.  Here, BC claimed another 75 minutes on the letter (30 minutes on telephone with counsel on 10 and 18 June 2008 and 45 minutes on perusing and revising it on 10 June 2008).  Both the time and amount of costs for this letter cannot be justified. 

11.  Similarly, for the letter dated 12/9/2008 to SHL, senior counsel had charged $7,000 for it.  Under B2 and Rider 2, BC had already claimed 20 minutes for work on the letter.  Here, BC claimed a further 45 minutes (30 minutes on writing letter to counsel on 11 September 2008 and 15 minutes on perusing amendments by counsel on 12 September 2008).  Both the amount of time and costs incurred cannot be justified.

12.  Globally, I reduce the time claimed by BC under this item by 3 hours.  The time claimed by RW is reduced by 5 minutes. 

13.  As for the costs claimed by LE, the attendance to obtain counsel dairies and to inform of the date fixed should not be charged on time basis but should be charged under the scale in Item 2, Part 1, First Schedule to Order 62.  The 45 minutes claimed is substituted by two attendances each of $110, making a total of $220.  The same applies to the attendance at court on 4 August 2009 to fix the hearing date.  The 25 minutes claimed is replaced by $110. 

14.  The time incurred by LE on telephone conversations with counsel and their secretary relating to skeleton arguments and hearing bundles (amounting to 1 hour 30 minutes in total) is too long.  It should be reduced to 30 minutes.

15.  In summary, the time of LE is reduced by 2 hours 10 minutes, with three attendances totalling $330 added.

B4:    Communication / corresponding with court (Rider 4)

16.    The personal attendance of BC before the listing officer on 30 January 2009 to fix the hearing date is not necessary and the time thus incurred (25 minutes) is disallowed.  As for the costs of LE, the attendance should be an item of scale cost instead of being charged on time basis.  The 25 minutes claimed is substituted by $110. 

Item C: Professional Work

C1 & C2: Preparation and perusal of documents (Riders 5 & 6)

17.  Under (i) (Joinder of R2 by way of consent summons filed on 17/9/2008), the total time incurred by BC for drafting and perusal work for the consent summons is 70 minutes.  An additional 30 minutes was incurred on drawing up the order made on the consent summons (i.e. drafting and perusing the order).   It is not a complicated application and the order granted is substantially the same as the consent summons.  The incurrence of 100 minutes on the matter is neither necessary nor justified.

18.  Under (ii) (Directions dated 20/1/2009 by way of consent summons filed on 19/1/2009), the time charged by RW is an unjustifiable duplication, in light of the minimal role undertaken by him in this case. 

19.  In respect of the two letters to SHL and the court on 12 January 2009, BC claimed 45 minutes (on the basis of ½ costs) for drafting them.  Previously, under B3 and Rider 3, BC had already claimed 45 minutes on communicating with counsel about these letters.  The total time claimed for these letters are not justified.

20.  The total time BC spent on the consent summons (60 minutes) is too long.

21.  Under (iii) (Summons dated 2/9/2008), in respect of the Affidavit of Raymond Lee, BC had incurred 290 minutes on considering and amending it: see Rider 5, and a further 470 minutes for handling of it: see Rider 6.  The total time spent cannot be justified.  It should also be noted that senior counsel had charged $21,000 for the work on it: see D1.  Further, the time incurred by BC on discussions with RW on the Affidavit of Raymond Lee (as per Rider 6) is not party-and-party costs. 

22.  In respect of the work done by RW on this document (amounting to a total of 375 minutes as per Rider 6), it is primarily to assist BC and may seems to be done out of abundance of caution (for example, highlighting comments and amendments made by counsel and checking the accuracy of each paragraph of the affidavit).  Such work may be charged on solicitors-own-client basis but cannot be justified on party-and-party basis. 

23.  It is not necessary to incur 15 minutes of BC’s time to draft the Notice to Act.

24.  Globally under C1 and C2, BC’s time is allowed at 20 hours.  Hence a reduction of 8 hours 50 minutes.  As for RW, it is allowed at 2 hours, hence a deduction of 7 hours 15 minutes.

C3:    Preparation for hearing (Rider 7)

25.  On party-and-party costs, only one fee earner is allowed for attending and preparing for the hearing. Accordingly, the costs of RW are disallowed.

26.  For the hearing bundles for counsel, photocopying charges were charged under Items E1 and E2 of the Statement of Costs. Additional costs charged by LE in copying the bundles are not allowable: Item 1A, part I, First Schedule to Order 62.

27.  Having regard to the close involvement of BC in the case and the amount of time previously incurred on the documentation, the time spent on reading the hearing bundles (360 minutes) and on reading and considering the submissions of the applicant and of his own counsel’s submissions (totalling 360 minutes) cannot be justified. 

28.  As for BC’s time spent on perusing the written Decision and the sealed order, this duplicates with the last two items under Rider 6 for Item C2. It is disallowed. 

29.  Globally, the time of BC under C3 is allowed at 8 hours, hence a reduction of 7 hours 15 minutes.

Item D: Counsel Fee

30.  The applicant objects to the involvement of counsel in drafting the affidavit and also the quantum of brief fees for the court hearing.  Given the nature and circumstance of the application, I do not agree that it is not justified to involve counsel in drafting the affidavit.  I also do not consider the fees of both counsel to be excessive.  The counsel fees are allowed in full.

Item E: Other Disbursements

E2:    Copying charges

31.  I agree that the costs of copying hearing bundles to the 2^nd respondent are not recoverable on party-and-party taxation.  $801 (i.e. $676 + $125) is to be deducted.  

F &G: Preparing and approving Statement of Costs

32.  The Statement of Costs is for a gross sum assessment.  As such, it is not necessary or justifiable for the LE to incur such substantial time in drawing up the document.  LE’s time for the preparation of the document is reduced by 8 hours.  The same applies to the time for approving it and BC’s time is reduced by 2 hours.

Summary

33.  The total costs allowed are as follows:

Items	Time allowed	Costs allowed (HK$)
B1	BC: 4 hours	16,000.00
B2	BC: 4 hours 20 minutesLE: 30 minutes	17,333.00   600.00
B3	BC: 5 hours 15 minutesRW: 5 minutesLE: 30 minutes  and 3 attendances	21,000.00   250.00   600.00   330.00
B4	BC: 25 minutesLE: 1 attendance	1,667.00  110.00
C1 & C2	BC: 20 hoursRW: 2 hours	80,000.00   6,000.00
C3	BC: 8 hours	32,000.00
D		343,500.00
E1		343.00
E2		1,602.00
F	LE: 4 hours	4,800.00
G	BC: 1 hour	4,000.00
	Total:	530,135.00

34.  Accordingly, the 2^nd respondent’s costs is assessed at HK$530,135.00.