LIU ANISSA MEE LING v. LAM, LEE & LAI (a firm of solicitors)

HCMP 2186/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2186 OF 2008

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REASONS FOR DECISION

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1.  The parties appear before me as the Practice Master for determination of an issue between them, viz. whether it should be by way of an appeal before the Judge or by way of a review under Order 62 rule 33 in respect of a determination by Master Ng on the preliminary issues, for which Master Ng had ruled that there was no Cost Cap, Cost Cap Agreement and/or Settlement Agreement and the taxation should proceed accordingly.

2.  Miss Chung, counsel acts for the plaintiff and Mr. Mak, solicitor acts for the defendant.

3.  It is common ground that the hearing before Master Ng was conducted pursuant to 2 orders respectively dated 6 May 2009 and 15 September 2009 wherein the parties agreed that the two bills of costs in question be taxed on solicitor and own client basis and the preliminary issues be dealt with in accordance with the court’s directions.  The order dated 15 September 2009 provided that those who had given affidavit evidence should attend Court for cross-examination.

4.  The parties had appeared before Master Ng who had heard the preliminary issues for 3 days. According to parties’ legal representatives, Master Ng had heard oral evidence at the hearing.  Taxation of the bill will commence on 10 September 2010 and the taxation will take one day.

5.  The plaintiff (the paying party) is not happy with Master Ng’s ruling on the preliminary issues and she intends to challenge the Master’s decision by way of an appeal to the Judge.  The defendant (the receiving party) opposes the plaintiff’s intended appeal by saying that the proper procedure should be by way of a review under Order 62 rule 33 of the RHC.

6.  Miss Chung submits that Order 62 rule 33 only applies after taxation of the bill by the taxing master, referring to the wording of the rule, which provides that the review should confine to the “whole or in part of any item by a taxing master, or with the amount allowed by a taxing master.”  Master Ng has only made a ruling on the preliminary issues, which do not involve any item or amount. Miss Chung therefore submits that Order 62 rule 33 does not apply.

7.  Mr. Mak has referred me to another case decided by Master Ng, namely the CEF Brokerage Limited, HCCL 39/2004, in which Master Ng had dealt with the review application.  But Mr. Chung admits that that case is different from the present one because taxation has completed in that case. Rule 33 therefore applies.  But he further submits that the plaintiff should wait until the end of the taxation, then the plaintiff may apply for a review, which is the same situation of the case he had referred to.

8.  Miss Chung submits that the plaintiff is entitled to appeal against the Master’s decision and since Order 62, rule 33 does not apply, obviously, Order 58 should apply under this situation. She further submits that if the Master rules in favour of the plaintiff, the taxation will not be necessary.  Therefore it will be costs-saving to have the preliminary issues to be determined first and for all.

9.  It should be noted that Order 62 rule 2 provides “This order shall apply to all proceedings in the Court, except non-contentious or common form probate proceedings and proceedings in matters of prize.”  It is therefore quite clear that Order 58 should not be supplementary to this Order as Miss Chung suggests.  It should also be noted that under Order 62, the resolution of the disputes on taxation proceedings will end at the level of the CFI Judge and the matter will not go further to the Court of Appeal.  There have been mechanisms in Order 62 for reviews, by the taxing master and by the Judge of the First Instance.

10.  If the preliminary issues are allowed to be appealed to the Judge under Order 58 of RHC, it seems that the party dissatisfied with the Judge’s decision can take the matter further to the Court of Appeal.

11.  Miss Chung agrees that the preliminary issues were decided under the taxation proceedings, which had commenced before Master Ng.  Had there been sufficient time after the ruling of the preliminary issues, Master Ng would have continued to tax the bill accordingly.  It was only because of insufficiency of time, taxation of the bill was adjourned to 10 September 2010.

12.  In those circumstances, it appears that this taxation is now a part-heard case.  The question is whether the plaintiff should be allowed to take the preliminary issues to the higher court for appeal notwithstanding that the case is still part-heard.  The answer, in my view, is negative because it defies common sense to conduct cases in this fashion and it will not only waste the costs, but also waste the court’s time and disrupt the court’s diaries.

13.  I therefore decide that this is a part-heard case, which should continue as scheduled until the end.  The plaintiff will then be at liberty to take the matter further in accordance with Order 62 of the RHC.

14.  I now make the direction that the plaintiff is not entitled to take the preliminary issues on appeal before completion of the taxation.

15.  As to the costs of this hearing, Mr. Mak first asks for no costs, but on reflection, asks for costs of this hearing.  Miss Chung says that she will ask for costs if this court rules in her favour.  As a general rule, the costs should follow the event.  Since parties have argued over the proper proceedings to be adopted before me and I have now made the ruling on this issue, the defendant should be entitled to costs of today’s hearing, which I now assess at $5,500.00 to be paid by the plaintiff within 14 days from the date hereof.