ERIC CHAN & CO (a firm) v. WONG KWOK WANG WARREN

HCMP 961/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 961 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ NO. 1155 OF 2008)

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ASSESSMENT OF COSTS

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Hon Barma JA (giving the Assessment of the Court):

1.  On 17 September 2013, we handed down our decision dismissing an application for leave to appeal by the plaintiff in this matter, ordering that the plaintiff should pay the defendant his costs of the application. Thereafter, the defendant, who had acted in person, lodged a statement of his costs seeking that such costs be assessed in the amount of HK$56,318. This was objected to by the plaintiff, who suggested that the appropriate amount of costs should be no more than HK$2,809, including an amount of HK$110 for photocopying disbursements which was not disputed. It is accordingly necessary for us to assess the quantum of costs that should be paid by the plaintiff to the defendant.

2.  The difference between the amount claimed by the defendant and that proposed by the plaintiff is substantial.  As appears from the defendant’s statement of costs and the plaintiff’s list of objections, the reason for this is two-fold.  First, the defendant has sought to be compensated for work done by him at the rate of HK$500 per hour.  The plaintiff contends that having regard to the provisions of RHC O 62 rule 28A, and in particular sub-rule (3) thereof, the appropriate rate should be HK$200 per hour.  Second, the plaintiff suggests that the time claimed to have been spent by the defendant is excessive.  The plaintiff suggests that a total of about 14 hours should be allowed, as opposed to the 113 odd hours claimed by the defendant.

3.  We deal first with the question of the rate at which costs should be awarded.  As is clear from the commentary at para 62/28A/1 of the Hong Kong Civil Procedure, while it is possible for the court, pursuant to sub-rules (1) and (2) to allow a rate of up to two-thirds that which would have been allowed had the litigant in person been represented by a solicitor, this should only be done where the litigant in person is able to establish that he has suffered some pecuniary loss in doing the work himself.  In the present case, the defendant has not put forward any material from which it can be suggested that he has in fact suffered any such loss. That being so, sub-rule (3) operates to limit the rate to be awarded for time reasonably spent by him to a maximum of HK$200 per hour.  We therefore accept the plaintiff’s submission that the costs should awarded at a rate of HK$200 per hour.

4.  That leads on to the question of what was the amount of time reasonably spent by the defendant in dealing with the leave application.  The plaintiff suggests that the defendant should have spent far less time than he claims to have in responding to the leave application.  The defendant says that, in broad terms, he spent some 44 hours working on his skeleton argument, which ran to some 27 typewritten pages, plus an exhibit of about the same length, and just under 70 hours reading documents relating to the application.  The plaintiff suggests that time spent on these aspects of the matter should not exceed about 6 and 8 hours respectively.  He also suggests, in relation to some of the documents perused, that these were in fact used in the course of the hearing below, in respect of which leave to appeal was sought, and so should be excluded from the costs of the application for leave, and left to be dealt with as part of the costs below.

5.  While we would accept that the amount of time for which the defendant claims goes beyond what would be reasonable, we cannot accept that the reasonable amount of time in respect of which costs should be allowed is as low as the plaintiff suggests.  It is necessary to bear in mind that the defendant was acting in person and is not legally qualified.  It is only natural to expect that he would reasonably need more time than a lawyer would to peruse and absorb the materials with which he was supplied, and to prepare his own materials in response.

6.  We also note that as the party making the application for leave, the plaintiff was responsible for lodging bundles of documents that ran to five full box files, consisting of virtually the entirety of the documents used at the hearing below.  Faced with such substantial amounts of papers, we do not think that the defendant can be criticised for spending a significant amount of time going through them, and trying to work out what was or was not particularly relevant and how to deal with them.

7.  While it is impossible to be wholly precise, it seems to us that it would have been reasonable for the defendant to have spent up to 20 hours working on his submissions.  Although the plaintiff suggests that some of the arguments raised or documents exhibited were not relevant or necessary, it seems to us that the amount we propose to allow is fair in all the circumstances.

8.  So far as perusal of papers is concerned, we would accept that there must be real doubt as to whether the defendant spent as much as 27 odd hours reviewing and considering the summons, draft grounds of appeal, submissions and authorities. In particular, to have claimed 20 hours in respect of the authorities (consisting of 6 cases, 3 of which had already been considered at the hearing below) seems excessive.  Similarly, the 7 hours claimed in respect of reviewing transcript extracts appears excessive and somewhat repetitive in nature, and 30 hours for consideration of the five box files of documents forming the application bundle is also on the high side. Viewing the matter on a global basis, we think that it would be appropriate to make a substantial reduction to the hours claimed in respect of perusal of documents, and we think that about 25 hours in total would be reasonable.

9.  We would therefore assess the defendant’s costs of the application at HK$9,110 (a total of 45 hours at HK$200 per hour, plus $110 for disbursements in respect of photocopying).  So far as the costs of this assessment are concerned, having regard to the fact that the outcome is quite a long way from either party’s proposals, we make an order nisi that there should be no order as to costs.