KOAY AI SEE v. DR CHAN KUNG NGAI AND ANOTHER

HCPI 727/2011

[2022] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 727 OF 2011

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REVIEW OF TAXATION

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Background

1.  This is a review of taxation sought by the Plaintiff (the Receiving Party).

2.  The action involved a medical negligence claim by the Plaintiff against the 2^nd and 3^rd Defendants (“D2” & “D3” respectively) who are employees of the 1^st Defendant (“D1”) (collectively as “Defendants”).  The Plaintiff alleged that there was delay on the part of D2 and D3 in the diagnosis of the condition of Meniere’s disease (“MD”) on the Plaintiff whilst D1 was vicariously liable as the employer of D2 and D3. 

3.  The Plaintiff discontinued against the D1 and by an order dated 9 January 2014, it is ordered that “there be no order as to costs of this application and the costs of and occasioned by the Plaintiff’s action against the 1^st Defendant to date” (“Discontinuance Costs Order”).  It is not in dispute that the Discontinuance Costs Order was made upon parties written confirmation by way of joint letter to the Master dated 8 January 2014 (“the Joint Letter”) that:

“The intention of the parties being that none of the parties shall claim against any other party for costs incurred in respect of the Plaintiff’s claim against the 1^st Defendant”.

4.  The claim against D2 and D3 was settled by way of mediation and resulted in the court order dated 24 September 2018 with the costs order that “the 2^nd and 3^rd Defendants do pay the Plaintiff the costs of this action to be taxed if not agreed, including costs of Mediation and this application” (“Final Costs Order”). 

5.  Taxation of the Plaintiff’s bill of costs for the Final Costs Order (“the Bill”) was heard before me on 10 August 2021 (“the Hearing”). 

6.  This review application touches upon a number of items in the Bill and I shall deal with the same in seriatim. 

Apportionment

7.  There is a preliminary issue on apportionment of all costs up to 9 January 2014, ie the discontinuance against D1, amongst the Defendants.  At the Hearing, it is ordered that all costs up to 9 January 2014 should be apportioned equally amongst the Defendants. 

8.  Mr Burke for the Plaintiff submitted at this review that the Defendants had never raised the issue of one third apportionment until the filing of the List of Objections (“LOO”) to the Bill and there is also no mention of any apportionment in the Discontinuance Costs Order or the Joint Letter.  Nor did the Defendants raised the same at the mediation session when the question of costs of the action was also agreed.  The Plaintiff had a proper claim against D1 as the employer and her claim against D1 was solely based on the employer/employee relationship and there is no separate claim against D1 for their own negligence.  Under such circumstances, there was no common work between D1 and D2/D3, so the case of China Merchants Kin Swiss & Another v Treasure Wise Limited & Others, HCA 344/2007 Master J Wong (unreported, 24 August 2010) relied upon by D2/D3 can be distinguished and not applicable in that all legal works done in that case were related to all defendants up to the date of discontinuance.  Since only nominal work had been done by D1 in answer to the claim in this action, relying on the case of Peter Man Ho Laye v Tam Ma Lai and another, HCA 1780/2009, DHHJ Au-Yeung (as she then was), (unreported, 3 February 2012), Mr Burke submitted that costs to be apportioned should be limited to costs increased by the claim against D1, ie should not be more than an hour. 

9.  Even though D2/D3 had only raised the issue of apportionment in the LOO, one cannot ignore the Joint Letter and the Discontinuance Costs Order which reflected the true intention of the parties that D2 and D3 should never be liable to the costs incurred by the Plaintiff in respect of her claim against D1.  Any costs before 9 January 2014 claimed by the Plaintiff against D2 and D3 should only be confined to the claim against them, hence apportionment is inevitable. Whether the D2 and D3 had raised the same before the LOO is neither here nor there. 

10.  As for the involvement of D1, I do not agree with Mr Burke that the costs increased for D1 is only on the consideration of its vicarious liability since there is no allegation of negligence against D1.  To consider its liability in the claim by the Plaintiff which was based on the negligence of D2 and D3, D1 has to consider the allegation against its employees as well before it can decide its own stance in the claim.  Even though the allegations of negligence were against the D2 and D3 only, to suggest that D1 needs not consider the same is unreasonable. 

11.  The Plaintiff had identified the following work that relates to D1 before discontinuance:

a.     naming D1 in the Writ and para. 1 of the Statement of Claim;

b.     seeking details from Defendant’s solicitors on D1’s employment of D2 and D3;

c.     seeking medical records from D1; and

d.     seeking from D1 their rules and regulations for doctors working at the hospital.

     As can be seen from the works quoted above, all these cannot be considered as relating to D1 only since these are required for the claim against D2 and D3 as well.  The claim by the Plaintiff against the Defendants are so intertwined that it would be difficult, if not impossible, to differentiate their involvement and to apportion their costs to be incurred. 

12.  As for the judgment of Peter Man Ho Laye (supra) relied upon by Mr Burke, the case is clearly distinguishable in that it involved an apportionment of costs between a claim and a counter-claim which raises new issue on adverse possession.  Deputy High Court Judge Au-Yeung (as she then was), having considered the judgment of Medway Oil and Storage Company Ltd v Continental Contractors Ltd & Ors that “whether a particular issue is an issue on the claim or on the counterclaim or on both the claim and the counterclaim … the question must be determined as one of substance and not of form – the manner in which the action was fought and in which the issues were dealt with by the parties and the Court not being disregarded”, came to the conclusion that costs to be recovered for the counterclaim should be limited to costs of the proceedings increased by the counterclaim. 

13.  The circumstances of a claim and a counterclaim involving some new issues is not analogous to the present case where the claim against all Defendants are related to the same issues, be they liable as the tortfeasors or vicariously. 

14.  I agree with the Defendants that everything done before the discontinuance relates to all 3 defendants and any apportionment should be in equal share.  I maintain my ruling at the Hearing. 

Medical Research

15.  Item 43, 429-447, 484 and 485 of the Bill involved research on the disease of MD by the handling solicitor claiming a total of 13 hours 50 minutes.  I have taxed off the time for all these items except allowed an hour for Item 43.  The Plaintiff is seeking a review on my ruling on the disallowed items on medical research. 

16.  Mr Burke for the Plaintiff submitted that it is proper for the solicitors to conduct research on the underlying grounds of the claim since MD is not a common medical condition and such medical research is required throughout the proceedings for evaluating the merits and further conduct of the case including giving instructions to the experts. 

17.  Upon taking up the case, the handling solicitor incurred time to research on the disease of MD is fair enough and that is why 1 hour had been allowed for Item 43.  However, since expert had been engaged in the very initial stage of the proceedings as required in medical negligence case, I agree with the Defendants that any further medical research by the solicitors is unnecessary and usurping the function of the expert. 

18.  I maintain my ruling on Item 429-447, 484 and 485. 

Legal Research

19.  Item 41, 42, 425-427 of the Bill involved legal research by the handling solicitors claiming a total of 6 hours 35 minutes.  I have taxed off all these items. 

20.  Mr Burke for the Plaintiff submitted at this review that the legal research involved are not basic research on general issue of negligence but specific to the disease of MD, business loss of a self-employed Plaintiff, delayed diagnosis as regards liability, quantum and PSLA.  Hence, such items should be allowed and sought an allowance of 3hrs 35min in total. 

21.  Since counsel had been engaged in this litigation from the very beginning for advice on liability, I agree with the Defendants that to allow the handling solicitors professional work in legal research is a duplication of work with counsel and is not proper and necessary.  As for the contention by the Plaintiff that it is not desirable for the solicitors to act as mail box between counsel and client or to direct counsel to do the task from time to time, the truth is counsel had been engaged in every step of the litigation as revealed from the fee notes of the counsel.  With such extensive involvement of counsel, further legal research to be conducted by the solicitors is not proper and necessary. 

22.  I maintain my ruling on Item 41, 42, 425-427 of the Bill. 

Item 220 (page 44 of the Bill)

23.  This involved consideration of the documents listed as items 2, 4, 6-8, 9(5), 9(6), 13, 15-26, 30, 209-219 in Plaintiff’s List of Documents consisted of not less than 476 pages claiming 1.5hrs of professional time.  This item has been taxed off on the ground of duplication. 

24.  At this review, Law Costs Draftsman (“LCD”) for the Plaintiff confirmed that there is a duplication for items 6 and 15-20 but not the rest of the documents. 

25.  Hence, the items of documents in dispute are items 2, 4, 7-8, 9(5)- (6), 13, 21-26, 30 and 209-219 (“Items in Dispute”).  Having checked through the List of Documents filed on 21 October 2014 and judging from the nature of documents described therein, all of the Items in Dispute, except item 9(5) & (6), should be provided by the client herself.  As revealed from the Bill itself, the client in this case had provided lots of documents to the solicitors from time to time and resulted in costs claimed for consideration of the same and a total of over 21 hours were allowed by this court (namely item 1-10 on page 17 of the Bill, item 49-52, 54-58 & 60-61 on page 25-27 of the Bill and item 460-463 and 465-469 on page 66-67 of the Bill).  It would be unreasonable if the Items in Dispute in the List of Documents were not included in these documents provided.  As for item 9(5) & (6), item 162 on page 39 of the Bill and item 205 on page 43 are for consideration of company search results.  It would be absurd if item 9(5) & (6) are not amongst these search results.  I agree with the Defendants that there must be duplication in these items. 

26.  I maintain my ruling at the Hearing. 

Item 330 & 331 (page 54 & 55 of the Bill)

27.  These items involved the handling solicitor’s work in preparing a summary of the Joint ENT expert report and the Joint Psychiatric report respectively.  Mr Burke submitted that this is necessary to identify the facts and opinion of the experts and to identify the matters that required clarification and investigation.  The same had been provided to D2 and D3 who wrote to the court enclosing their submissions so this document also assists the court as well. 

28.  The fact that the table was sent to both the Defendants and the Court is neither here nor there.  Given that the reports are before the Court and the Defence legal team, the preparation of the summary is redundant and clearly not proper and necessary.  If the Plaintiff’s legal team required such summary to facilitate their own work, so be it but certainly not chargeable as an item in party and party taxation.

29.  I maintained my ruling at the Hearing for the costs of these 2 items to be taxed off. 

Item 332 & 333 (page 55 of the Bill)

30.  These items involved professional work in preparing a table of correspondence with Malaysia Hospital concerning non-party discovery and the copying charges of the same.  According to the Plaintiff, this was done on the request of D2 and D3 and the table was provided to D2 and D3 who then wrote to the court enclosing their submissions so this document also assists the court as well. 

31.  D2 and D3 denied ever requested for the table.  There is nothing from the Plaintiff in support of such a request.  On balance of probability, I prefer the version of the D2 and D3.  I failed to see why it is proper and necessary to prepare such a table and how did it assist the court. 

32.  I maintain my ruling at the Hearing.

Item 451 (page 65 of the Bill)

33.  This item involved 14 conferences with counsel and client claiming a total of 32 hrs 55 mins and was taxed down to 15 hrs. 

34.  The Plaintiff submitted that the time allowed was insufficient to deal with the followings:

a.     The statement of claim;

b.     Report of Dr. East;

c.     Defence;

d.     Defendants’ witness statements;

e.     Liability expert report;

f.     Disputed issues raised in the Defendants’ documents including:

i)     Joint ENT report and joint psychiatric report;

ii)     Questions to experts;

iii)     Supplemental joint ENT report and joint psychiatric report; and

g.     Defendant’s settlement offers.

     And the Plaintiff submitted that 26 hours should be allowed.

35.  From the number of conferences and the time involved, one can see the heavy reliance of counsel in this litigation.  Be that as it may, this is not a particularly complicated medical negligence case and the engagement of counsel to have conference with client is apparently excessive in this case.  I still maintain that 15 hours should be a more reasonable time required. 

36.  I maintain my ruling at the Hearing. 

Item 474 (page 67 of the Bill)

37.  This item involved professional time spent for preparing summary of the witness statements of D2 and D3 and sent to the client by way of a letter.  The Plaintiff is claiming 5 hours for the same and only 10 minutes was allowed for the letter. 

38.  The Plaintiff contended that the summary is necessary to explain the witness statement and to point out the disputes/issues raised with solicitor’s comments and proposal for further conduct.  This is particularly so given the way the witness statements were being drafted.  The Plaintiff said that 3 hrs 30 mins should be allowed instead. 

39.  Since the client in this case is fluent in English, I failed to see why it is necessary to prepare a summary of the witness statements for her.  10 minutes would be sufficient for the handling solicitor to write to the client and state his comments and proposal for further conduct. 

40.  I maintain my ruling at the Hearing. 

Item 476 (page 67 of the Bill)

41.  This item involved professional time spent for preparing a summary of the Defendants’ Liability Expert Report sent to the client by way of a letter. The Plaintiff is claiming 1 hour 30 mins for the same and only 5 minutes was allowed for the letter. 

42.  The Plaintiff contended that the summary is necessary to explain the expert report and to point out the disputes/issues raised with solicitor’s comments and proposal for further conduct.  The Plaintiff said that 1 hrs 15 mins should be allowed instead. 

43.  I repeat my findings at para 39 above and maintain my ruling for this item at the Hearing. 

Item 482 (page 68 of the Bill)

44.  This item involved professional time spent in preparing a table listed out treatments received by the client in a letter sent.  The Plaintiff claimed for 5 hrs and only 5 mins was allowed for the letter. 

45.  The Plaintiff contended that the table is required to identify and check against parties’ argument on issues over treatment and medication prescribed since the Defendants are claiming that the Plaintiff had received the required treatment for MD even though with no diagnosis of the same.  The table was completed with input from the Defendants as well.  The Plaintiff claimed that 4 hrs should be allowed. 

46.  The fact that the table was prepared with the input of the Defendants is irrelevant.  Solicitors for the Plaintiff may opine that such a table is required to facilitate their own work, this cannot be considered proper and necessary in a party and party taxation. 

47.  I maintain my ruling at the Hearing. 

Item 524 (page 72 of the Bill)

48.  This item involved 30 minutes spent by Mr Burke in reading an email from counsel about research on dizziness and vertigo, history of medicine taking and History of Present Illness (HPI) and such item was taxed off at taxation. 

49.  Mr Burke submitted that it is necessary for counsel to provide research information to justify his advice on the claim and for solicitors to consider the same.  The medical experts will not entertain request to conduct medical research from time to time and in any event, charges will be incurred.  20 minutes is asked for at this review. 

50.  I agree with the Defendants that since medical expert had been engaged from the very beginning, any medical research should be done by the expert.  As can be seen from the correspondence between counsel and solicitor, counsel had provided a written advice during the same period of time with further questions put to Dr East, the medical expert of the plaintiff.  And the research by counsel was done after the further opinion/clarification from the expert which would be a duplication of work. 

51.  I maintain my ruling at the Hearing. 

Item 563 & 564 (page 76 of the Bill)

52.  This item is for research on the purpose and effect of the medication prescribed to the plaintiff.  The plaintiff contended that this is necessary to verify the defendants’ allegation that the medicine prescribed did help to treat MD. 

53.  I agree with the Defendants that any further medical research by the solicitors is unnecessary and usurping the function of the expert.  In any event, whatever defence raised by the Defendants, this should be dealt with by the expert and not by the solicitors. 

54.  I maintained my ruling at the Hearing that these items should be taxed off. 

Item B1:1 & B1:2 (page 95 of the Bill)

55.  This is counsel’s fee.  Feenote No 1288 at item B1:1 is for initial perusal of documents including expert reports of Dr John Woo and advice by counsel Ms Christina Lee and Feenote No 1310 at B1:2 is for conferences with client and solicitors claiming a total of $272,591 and $330,875 respectively and was taxed down to $176,000 each. 

56.  The counsel fee in this item are for the re-assigned counsel since 22 November 2012 and counsel is charging an hourly rate of $5500. 

57.  In Feenote No 1288, counsel is charging a total close to 50 hours professional work.  Having given allowance for the time spent in duplication of work with counsel previously assigned and the aborted expert report prepared before re-assignment as well as the two third apportionment of work done before the Discontinuance Costs Order, 32 hours of professional work done is more than reasonable.  

58.  In Feenote No 1310, counsel is charging about 60 hours of work including 24.5 hours for conferences with clients.  Since 15 hours had been allowed for solicitors having conference with counsel, the same should be reflected in counsel’s fees.  Another bulk of professional work by counsel involved expert medical evidence and research in a total of 27 hours.  Since medical expert had been engaged, counsel only required to have a basic understanding of the disease or medical conditions involved, 27 hours spent on the same is highly excessive and should be taxed down to 13 hours.  As for the remaining work on the witness statements and advice on sanctioned payment, a total of 8 hours is also on the high side and 4 hours should be more reasonable. 

59.  I maintain my ruling at the Hearing. 

Item 40 (page 116 of the Bill)

60.  This item involved work done by the legal executive in collating the bundles to be used at mediation.  An hour of work is claimed together with a scale fee of $642 for a bundle of 642 pages.  Only the scale fee was allowed. 

61.  The LCD for the Plaintiff submitted that the proper scale fee to be allowed should be $4 per page hence asking for $2,568 scale fee to be allowed on review. 

62.  The LCD for the Defendants argued that this is not a review item since the Plaintiff is asking for another scale fee for copying when such application should be made by way of an application to amend the Bill.  Hence, this item of review should not be allowed. 

63.  I agree with the Defendants.  The scale fee asked for in the Bill had been allowed in full.  If the plaintiff is considering that the scale fee should be $4 per page instead of $1 per page, the Bill required to be amended before such a contention can be raised.  And an amendment of the Bill cannot be the subject of a review. 

64.  However, since the plaintiff is not claiming $4 per page in line with the First Schedule of Order 62 RHC which includes collating of documents in the preparation of bundles, costs should be allowed for such collating work.  The plaintiff is claiming 1 hour work of the legal executive which is in the sum of $1,700.  However, since the index was being prepared by the handling solicitors himself, the collating work can be done by a litigation clerk instead of a legal executive.  I shall allow the costs of the litigation clerk in this regard in the sum of $1,300. 

65.  Item 40 on page 116 of the Bill be reviewed to allow 1 hour work for the litigation clerk. 

Conclusion

66.  Having considered all the above, the application for review should be dismissed save and except for item 40 on page 116 of the Bill. 

Costs

67.  Costs should follow the event.  Since the Plaintiff is only successful in 1 out of 11 items of review where time spent on the same is de minimus, the Defendants should be entitled to have costs of this review. 

68.  Costs order nisi that the Plaintiff do pay the Defendants costs of this review including the hearing to be summarily assessed by way of paper disposal if not agreed.  The Defendants do lodge their statement of costs within 21 days hereof and the Plaintiff do lodge her statement of objections within 7 days thereafter.