SZETO YUK LIN v. KANTON LTD AND OTHERS

HCMP 251/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 251 OF 2016

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SUMMARY ASSESSMENT OF COSTS

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Introduction

1.  The proceedings are instituted by way of Originating Summonsby the plaintiff (“P”) on 29 January 2016.  Then, all the defendants (except D1)[1] apply, pursuant to Order 28, rule 8 of the Rules of the High Court, for the proceedings to continue as if the cause or matter had been begun by writ.  The defence application for the writ procedure was fixed for hearing on 7 September 2017.

2.  Shortly before the aforesaid hearing took place, D6 by a summons dated 1 September 2017 applied for an extension of time to file an affirmation which it said would assist this court in determining the Writ Procedure Summons.  It was noted, however, that D6’s application for extension was seriously out of time, as Master J Wong had ordered that the defence affirmations be filed within 28 days from 5 September 2016. 

3.  D6’s application for extension was heard on the same date and time as the application for the writ procedure.  As D6 was unable to give any reasonable excuse for the delay and bearing in mind that one of the objectives of the Civil Justice Reform is to ensure that a case is dealt with as expeditiously as is reasonably practicable, this court refused D6’s application for extension and ordered that P should have the costs of D6’s application.  A summary assessment was called for and this court directed that it be dealt with on papers. 

4.  By a statement of costs dated 13 September 2017, P now seeks costs in the amount of $90,560, of which $73,333 was fees for two counsel.  By a letter dated 20 September 2017, D6 objects and says that the usual costs of $800 should be ordered.  Alternatively, D6 says the costs should in any event be no more than $10,400 in total. 

Consideration

5.  In my view, the costs for D6’s application for extension of time should be higher than usual.  This is because D6’s summons was heard on the very same date as the Writ Procedure Summons, so that it was reasonable for P to engage the same counsel to deal with both applications, rather than to engage a solicitor just for D6’s summons.  Moreover, as D6’s counsel had prepared a written skeleton for its application for extension of time, it was only reasonable for P’s counsel to also prepare a written submission in reply so as to better assist the court.  Moreover, costs would also need to be incurred to peruse the affirmation which D6 sought to adduce. 

6.  However, the application for extension under consideration was a relative straight forward one and the time spent on its hearing was brief.  I can see no justifications whatsoever for P to engage two counsel for the hearing of D6’s summons and none has been given.  Moreover, it is apparent that there was some degree of overlap of work in dealing with D6’s application for extension and the application for the writ procedure.  Based on the aforesaid, the counsel fees that P attributed to D6’s application for extension are in my view both unreasonable and excessive.  Moreover, the total time spent by P’s solicitor (namely, 4 hours and 10 minutes) is in my view also excessive for an application of this nature.

Order

7.  Having adopted a board brush approach, I would only allow P a global sum of $15,000 for the application and hearing of D6’s summons for extension.