FUNG WAI KUEN v. SEE WAH LUN

HCPI 1138/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1138 OF 2004

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J U D G M E N T

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1. This is a gross sum assessment pursuant to my Order made on 4 March 2008 arising out of the accident resulting in serious brain injury to the plaintiff.  My judgment given on 4 March 2008 reflects what had happened and why the order was made.  

2. There are three items of costs assessment to be made today.  The first item is under paragraph 3 of my Order whereby the defendant do pay the plaintiff’s costs of action up to and including 17 January 2008 on a common fund basis, to be taxed if not agreed.  The second item of assessment is under paragraph 4 of my Order that the plaintiff do pay costs in respect of 50% of defendant’s counsel’s fees incurred after 17 January 2008 (estimated to be $367,500), to be taxed if not agreed.  The third item of gross sum assessment is under paragraph 5(b) of my Order whereby both leading and junior counsels’ fees totalling $900,000 of which $100,000 be paid by the defendant and $185,000 be paid by the plaintiff’s solicitors personally and the balance of counsel’s fees in the sum of $615,000 to be assessed by the court.

3. I would first deal with paragraph 3 of my Order, that is, the gross sum assessment in relation to the plaintiff’s costs of the action up to and including 17 January 2008 on a common fund basis. 

4. Common fund basis as set out in Order 62, rule 28 of the Rules of the Supreme Court is different from party and party.  Party and party is governed by Order 62, rule 28(2) which reads :

“(2) Subject to the following provisions of this rule, costs to which this rule applies shall be taxed on the party and party basis, and on a taxation on that basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.”

Rule 28(4) however reads :

“(4) On a taxation on the common fund basis, being a more generous basis than that provided for by paragraph (2), there shall be allowed a reasonable amount in respect of all costs reasonably incurred, and paragraph (2) shall not apply; and accordingly in all cases where costs are to be taxed on the common fund basis the ordinary rules applicable on a taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested shall be applied, whether or not the costs are in fact to be so paid.”

5. Therefore it seems to me that I have to apply a much more generous standard than party and party in assessing under gross sum assessment the costs to be payable by the defendant to the plaintiff for all costs of the action up to and including 17 January 2008.  I would proceed to make my assessment on that basis.

6. Mr Ip has kindly prepared a document headed “Plaintiff’s Skeleton Bill of Costs” to assist in making my gross sum assessment under this heading, and it is divided into different parts.  There is a large amount of common ground between the parties and there is only some dispute in relation to certain basis or certain items. 

7. It seems to me, on a common fund basis, both the hourly rate of $4,000 for Mr Ip, who is a very senior solicitor, well-known to the court and, in particular, well-known to the court in relation to personal injury cases, is reasonable.  I also take the view that the total number of hours charged for a case of this complexity is not unreasonable.  Therefore, in relation to Part 1 of the documents of the Plaintiff’s Skeleton Bill of Costs I would allow it in full, namely, I would allow under Part 1 both $1,066,000 for Mr Ip’s costs and $35,000 for Mr Lam’s work.

8. Turning to Part 2, there is no serious dispute and I would allow in full the sums stated there (on page 14), namely $32,100, $3,600 and $1,800.

9. In relation to Part 3, that is, to do with today’s assessment, it seems to me that in the circumstances it would be reasonable taking into account of the objection made by Ms Leung that I would allow, under paragraph 1, $18,000 instead of $20,000; under paragraph 2, $2,700 instead of $2,900, and I would allow four hours for the gross sum assessment prepared for me today, that is, $8,000.

10. Under “Disbursements”, I have heard, what is said by Ms Leung, the objection to some of the items especially of the experts.  I think she is quite legitimate in pointing out that Mrs Chow’s fees should be $51,000 instead of $55,500.  But in relation to all the other items objected to, it seems to me, bearing in mind the view I have taken of the case as well as the assessment to be on the common fund basis, that the proper assessment under that Disbursement heading should be $334,356.  That is, I allow it in full but reduce it by $4,500 in relation to Mrs Chow’s fees.

11. In relation to Part 4, having regard to what has been said and acceded by both sides, I would only allow $40,000 for that. 

12. The total sum to be allowed under the first gross assessment should be $1,541,556.  To be deducted however against that, as a matter of set off, is an order for costs in favour of the defendant under the Consent Order made by Saunders J, and I would deduct two hours of work at $3,200, that is, less $6,400.  The total therefore, if my calculation is correct, is $1,535,156.  This amount is to be recoverable by the plaintiff against the defendant under Paragraph 3 of my Order.

13. Turning now to Paragraph 4 of my Order in relation to fees of Ms Lau who is a very senior junior and in many ways of equal standing with Mr Ozorio SC in terms of her experience and exposure to personal injuries work, it seems to me that the brief of $150,000, having regard to a case set down for five days of a personal injuries trial, is reasonable.  I allow that.  However the refresher of $65,000 charge is very, very high.  I regard the refresher of $40,000 as being more appropriate.  I also regard 28 and 29 February 2008 should be chargeable as half refresher.  Therefore there should be eight refreshers at $40,000, making $320,000 for refreshers and $150,000 for brief, that is, $470,000.  Fifty percent of that is $235,000.  That is my assessment under Paragraph 4.

14. In relation to Paragraph 5(b) of my Order, that is, the fees of the plaintiff’s counsel, it seems to me that having regard again to the fixed five day trial and notwithstanding the considerable complexity of the case and, having regard to Ms Lau’s brief fees of $150,000, I would allow for the brief of Mr Ozorio SC $175,000.  In relation to refresher, according to the way I have looked at the fees of counsel previously, it seems to me that only 8.5 refreshers should be chargeable, and that the Brief should include all the other work such as preparatory work and the refreshers should take care of the rest.  In my view, the refresher, at $45,000, will be reasonable for Mr Ozorio SC.  Therefore $45,000 times 8.5 equals to $382,500.  The total fees payable to Mr Ozorio SC should be $382,500 for the refreshers and $175,000 for the brief, making a total of $557,500.

15. In relation to Ms Kwok who is a very junior counsel and has done considerable work, in my view, a gross sum figure of $100,000 would be a fair reflection of the work she has done.  Hence the total figure for counsel is $657,500.  One has to take away from that, the contribution of $285,000 referred to in the Order, therefore $372,500 is to be borne by the plaintiff personally.

16. The above is my assessment.