LAW FEI SHING v. THE DISCIPLINARY COMMITTEE OF THE HONG KONG INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS AND ANOTHER

CACV 573/2018

[2019] HKCA 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 573 OF 2018

(ON APPEAL FROM HCAL 750 OF 2018)

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REASONS FOR JUDGMENT
AND DECISION ON COSTS

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Hon Au JA (giving reasons for judgment and decision on costs of the court):

A. INTRODUCTION

1.  This is the applicant’s appeal against the Judgment of Chow J (“the Judge”) dated 26 November 2018 in refusing to grant him leave to apply for judicial review.  In the intended judicial review, the applicant seeks to challenge the decisions made respectively by the Disciplinary Committee of the Hong Kong Institute of Certified Public Accountants (“the Disciplinary Committee”) and the Hong Kong Institute of Certified Public Accountants (“the Institute”).

2.  At the end of the hearing of the appeal, we dismissed the appeal and indicated that we would hand down our reasons for judgment and decision on costs later. This is what we do now.

B.   BACKGROUND

3.  The relevant background has been set out by the Judge at paragraphs 2 ‑ 16 of the Judgment, and we do not propose to repeat it here.  Suffice for this court to highlight the following for the purpose of this appeal.

4.  The applicant is a certified public accountant.  He was the auditor of Chong Luen Hing Garments Limited (“CLH”) and audited its financial statements for the years ended 31 March 2009, 2010 and 2011 (respectively “the 2009 Audited Report”, “the 2010 Audited Report” and “the 2011 Audited Report”).  It was another auditor (“the Former Auditor”) who audited CLH’s financial statements for the preceding years ended 31 March 2006, 2007 and 2008 (respectively “the 2006 Audited Report”, “the 2007 Audited Report” and “the 2008 Audited Report”).

5.  The Institute formally commenced disciplinary proceedings against the applicant sometime in February 2014 in relation to complaints made against him concerning CLH’s audited accounts.

6.  Seven complaints have been stated against the applicant in the complaint letter submitted by the Registrar of the Institute to its Council, which in turn referred the complaint letter to the Disciplinary Panels to formally commence the disciplinary proceedings.

7.  Relevant to the intended judicial review is only the third complaint (“the Third Complaint”)[1].  It arises in the following way:

(1)   In all the 2006 to 2011 Audited Reports, there was an accumulated provision of impairment loss of HK$10,875,000 (“the Impairment Provision”) made against an investment in a wholly owned subsidiary (“the Subsidiary”) of CLH in the PRC.

(2)   The Former Auditor qualified his opinions in the 2007 and 2008 Audited Reports (but not the 2006 Audited Report) relating to the Impairment Provision due to the absence of the audited accounts of the Subsidiary.

(3)   In the 2009 Audited Report, the applicant also expressed a qualified opinion with respect to, among others, the underlying value of the Subsidiary.  The basis of the qualification was stated to be that “in the absence of audited accounts of the subsidiary, we are unable to ascertain the underlying value of the investment although an aggregate impairment loss of the investment amounting to HK$10,875,000 have been provided”.  In the relevant financial statements, the carrying value of CLH’s interest in the Subsidiary was stated to be HK$4,125,000, being the value at cost of HK$15,000,000 less accumulated provision for impairment loss of HK$10,875,000.

(4)   However, the applicant did not make any similar qualification in respect of the value of the Subsidiary in the subsequent 2010 and 2011 Audited Reports although the same impairment provision was made in the respective financial statements.

8.  The Third Complaint in substance states that the applicant had breached the Hong Kong Standard of Auditing 701 Modifications to the Independent Auditor’s Report in failing to “qualify his opinion in the 2010 and 2011 audited reports of CLH concerning a scope limitation in verifying the propriety of an accumulated provision of impairment loss of HK$10,875,000 [ie, the Impairment Provision] made against an investment in the 2010 and 2011 Financial Statements”[2].

9.  Although the disciplinary proceedings were commenced in February 2014, they had been delayed by, among other things, the applicant’s failed attempt in an application for leave to apply for judicial review in HCAL 132/2014, the refusal of which was subsequently upheld by the Court of Appeal in HCMP 748/2015 (21 April 2016), followed by the Court of Final Appeal refusing leave to appeal in June 2017.

10.  Not long after the resumption of the disciplinary proceedings, in around early 2018, the applicant asked the Disciplinary Committee to extend the time for him to file the Respondent Case in defence in the proceedings until he was given information and materials on “what action [against the Former Auditor], if any, has been taken [by the Institute] and why, which is for him to consider his position and to prepare his case for submitting to the Committee” (“the Requested Information”).  It is his position that he required the Requested Information to enable him to properly formulate his case in response to the Third Complaint effectively.

11.  The Disciplinary Committee decided to continue with the disciplinary proceedings on the basis that the Requested Information requested for was irrelevant.  It however did further extend the deadline for the applicant to file the Respondent’s Case.

12.  The applicant then applied to the Council for the Requested Information, which was similarly refused on the basis of irrelevance.

13.  In April 2018, the applicant applied for leave to judicially review the above decision of the Disciplinary Committee to proceed with the disciplinary proceedings and the decision of the Council not to provide him with the Requested Information.  He asks the court to quash both decisions (collectively “the Decisions”).

14.  The intended ground of judicial review is in gist that the Decisions are tainted with procedural unfairness as they violated the applicant’s right to a fair hearing by denying him access to information that was relevant to his defence.

C.   THE JUDGMENT

15.  As rightly identified by the Judge at paragraph 1 of the Judgment, the principal issue that calls for determination in the intended judicial review is whether the applicant ought to be given access to the Requested Information.

16.  The Judge concluded that the intended judicial review was not reasonably arguable and refused to grant leave on the basis that:

(1)   First, the Decisions were “intermediate” or “procedural” in nature, which did not give rise to any substantive consequence.  There were also no exceptional circumstances in the present case to justify the court to depart form the usual position that generally it will not entertain judicial review challenges against intermediate decisions[3].

(2)   Second, in any event, the actions (if any) taken by the Institute against the Former Auditor were irrelevant to the Third Complaint.  This was so as the complaint was about the applicant’s failure to qualify his audit opinion in respect of the Impairment Provision but not about the amount, or correctness, of that provision of HK$10,875,000[4].

(3)   Third, the Judge also rejected the applicant’s argument based on “equality of arms” that the applicant was entitled to have information relating to any actions taken against the Former Auditor, since the Disciplinary Committee had had access to it.  Apart from the conclusion that the documents were irrelevant, the Judge also concluded that there was no proper or sufficient basis for the allegation that the Disciplinary Committee was privy to such information that was not available to the applicant[5].

17.  The Judge explained his reasons for his above conclusion at paragraphs 19 ‑ 25 of the Judgment as follows:

“19. In my view, the intended application for judicial review is not reasonably arguable, for the following reasons. First, it is well established that the court does not, generally speaking, entertain an application for judicial review of a decision which is merely ‘intermediate’ or ‘procedural’ in nature, or which does not give rise to any substantive consequence or is not a decision of a ‘decisive nature’. The rationale for this principle was explained by the Court of Final Appeal in Financial Secretary v Wong (2003) 6 HKCFAR 476:

(1) At paragraph 13 of the judgment of the Court of Final Appeal, Bokhary PJ stated the following –

‘The courts’ judicial review jurisdiction is of a supervisory nature. This extremely important jurisdiction is not meant for the purpose of micro‑managing the activities of subordinate tribunals or administrative decision-makers. It should hardly ever be exercised to review decisions that go only to procedure rather than to the end result. I say “hardly ever” rather than “never” because there can be wholly exceptional cases calling for special treatment… If the Tribunal had been properly seised of an application for costs, the High Court's proper course would have been to leave the Tribunal to proceed to a decision on the end result and then, if the circumstances eventually so warranted, judicially review that end result. Quite apart from anything else, it often happens that the effect of questionable decisions made at an intermediate stage of a process are dissipated or overtaken by subsequent developments and turn out to have little or no impact by the time the final stage is reached.’

(2) At paragraphs 93 to 95 of the judgment of the Court of Final Appeal, Litton PJ further stated as follows –

‘93 Turning more specifically to the scope of judicial review, it is, broadly speaking, the means by which judicial control of administrative action is exercised. It is not every decision by a decision maker which is susceptible to review: Were it otherwise the functioning of the executive arm of government and of statutory bodies and tribunals would be ensnared in multiple applications in the courts. As put by the authors of Administrative Law: Wade and Forsyth (8th ed.) p.600-601:

“As the law has developed, certiorari and prohibition have become general remedies which may be granted in respect of any decisive exercise of discretion by an authority having public functions ...”

94 The emphasis here is on the decisive nature of the exercise of power…

95 As Mason CJ said in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 337, an essential quality of a reviewable decision is that it is a substantive determination: Thus

“the refusal by a decision-maker of an adjournment at an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.”’

20. In the present case, the two decisions of the Disciplinary Committee and Institute respectively are intermediate or procedural in nature. There seems to me to be no good, or exceptional, reason why the court should intervene in the disciplinary proceedings at this stage, instead of allowing those proceedings to take their natural course to their conclusion.

21. Second, the actions (if any) which have taken by the Institute against the Former Auditor are irrelevant to the Third Complaint against the Applicant. In this regard, it is important to note that the Third Complaint is not about the amount, or correctness, of the impairment provision of HK$10,875,000 made in relation to the value of CLH’s investment in the Subsidiary as stated in the financial statements of CLH for the years ended 31 March 2010 and 2011. It is about the Applicant’s failure to qualify his audit opinion in respect of the value of CLH’s investment in the Subsidiary as stated in those financial statements as required by paragraph 18 of Hong Kong Standard on Auditing 701, which states as follows –

‘Where there is a limitation on the scope of the auditor’s work that requires expression of a qualified opinion or a disclaimer of opinion, the auditor’s report should describe the limitation and indicate the possible adjustments to the financial statements that might have been determined to be necessary had the limitation not existed.’

22. Whether the Applicant ought to have expressed a qualified opinion in respect of the value of CLH’s investment in the Subsidiary due to scope limitation in accordance with paragraph 18 of Hong Kong Standard on Auditing 701 is a matter which should be determined by reference to the information and materials which were available to the Applicant (including matters which the Applicant ought reasonably to have found out or discovered by the exercise of due diligence) at the time when he carried out the audit of CLH’s financial statements for the years ended 31 March 2010 and 2011 and the relevant professional standard in force at that time. It does not depend on whether the Former Auditor, rightly or wrongly, failed to express any qualified opinion in respect of the value of CLH’s investment in the Subsidiary in the 2006, 2007 or 2008 Audited Reports, still less on what actions (if any) have been taken by the Institute against the Former Auditor in respect of those audited reports after the event. Even if, for the sake of argument, the Former Auditor ought to have expressed a relevant qualified opinion in their audited reports and the Institute decided, erroneously, not to take action against the Former Auditor, it cannot sensibly be argued that, in order to ensure consistency of treatment, the Institute should likewise take no action against the Applicant. The correct response should, in my view, be that the Institute ought to take action against the Former Auditor, but that is a separate matter. I pause to observe that, as a matter of fact, the Former Auditor did express a relevant qualified opinion in the 2007 and 2008 Audited Report (but not in the 2006 Audited Report) in relation to the value of CLH’s investment in the Subsidiary due to the absence of the audited accounts of the Subsidiary.

23. To the extent that it is suggested that the Institute’s actions against the Former Auditor are, or may be, relevant to the sanction which may be imposed on the Applicant should the Third Complaint against him be established eventually, that is a matter which can and should be addressed after the issue of breach or liability has been determined by the Disciplinary Committee.

24. Third, it is argued on behalf of the Applicant that the Institute has had access, and the Disciplinary Committee appears to have had access, to information that is not available to the Applicant, and the principle of “equality of arms” requires that the Applicant be given access to the same information. In my view:

(1) In so far as it is said that the Institute has access to information on the actions (if any) that it has taken against the Former Auditor, for reasons mentioned above, such information is irrelevant to the proceedings against the Applicant at this stage.

(2) In so far it is alleged that the Disciplinary Committed appears to have had access to such information, the Disciplinary Committee has, through leading counsel, confirmed that it does not have access to the information in question. In this regard, it is relevant that the Disciplinary Committee (comprising 5 members, of whom 3 are lay persons and 2 are certified public accountants) is constituted pursuant to Section 33(3) of the Ordinance specifically for the purpose of the present disciplinary proceedings against the Applicant, and is independent of the Council (see Section 33(2) of the Ordinance). The Institute’s solicitors (RSRB) has also confirmed, in a letter to Yung & Au dated 19 March 2018, that in accordance with the usual practice, all materials that are placed before the Disciplinary Committee (including any statements that may have been made affecting the Applicant) will be copied or otherwise made available to him. Further, as pointed out by Miss Sara Tong (for the Institute), disciplinary proceedings which have been commenced against any accountant are matters of public record, with the following information being published on the Institute’s website: (i) a list of all disciplinary proceedings in progress, (ii) a hearing schedule, setting out the dates of all substantive hearings scheduled to be conducted by Disciplinary Committees, which are held in public unless otherwise directed (see Rule 26(2) of Disciplinary Committee Proceedings Rules), and (iii) all disciplinary decisions where orders have been made against any respondent for the past 5 years. Overall, there is no proper or sufficient basis for the allegation that the Disciplinary Committee is privy to relevant information which is not available to the Applicant.

25.     In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.”

D.    THIS APPEAL

D1.   Grounds of Appeal

18.  The applicant raises two grounds of appeal as set out in the Notice of Appeal:

(1)   The Judge erred in his finding that the Decisions are intermediate or procedural in nature (“Ground 1”).

(2)   The Judge erred in his finding that the materials sought by the Applicant are not relevant and disclosable by the Institute (“Ground 2”).

19.  Under Ground 1[6], the applicant contends that the Decisions are plainly decisions with substantive legal consequences as the Requested Information is important and relevant to the formulation of his defence to the Third Complaint.  Without the information, his right to a fair trial will be significantly prejudiced. The Judge is thus wrong in concluding that the Decisions are intermediate and procedural in nature.

20.  In further support, the applicant submits that the Requested Information is relevant because[7]:

(1)   The history of the CLH accounts, the previous practice and treatment of those accounts by the Former Auditor, and the extent of the information made or available to CLH and its auditors, all form the circumstances of the applicant’s case and the reasonableness of the professional assumptions made by the applicant.

(2)   The applicant’s defence to the disciplinary charge involves an explanation as to the circumstances of the impairment loss, and the professional conduct expected of the applicant in these circumstances.  This includes inter alia, the basis of the original valuation and impairment loss assessed by the Former Auditor, the extent of information available to the Former Auditor in relation to the Subsidiary, and whether there was any evidence at the time that could raise a significant change of circumstances on impairment loss.

(3)   The applicant’s maintaining the impairment provision “necessary interpleads the conduct of the Former Auditor”, and the Institute has full powers to enquire of the Former Auditor its coming to the impairment provision in the auditing of the CLH accounts.

(4)   The Institute has wrongly refused to disclose to the applicant whether or not enquiries were made in this matter central to his defence.  It has also wrongly refused to disclose the status of any proceedings that were considered or commenced against the Former Auditor, and evidence gathered in relation to the Former Auditor’s auditing of the CLH accounts.

(5)   If proceedings were not instituted against the Former Auditor, it is relevant to the applicant’s argument as to the propriety of the charges against him, and a potential application for a stay of proceedings on that basis.  It may also ground an argument that the Institute had formed the view that, on the merits, the Former Auditor acted reasonably in applying the relevant impairment provision which would similarly inform the applicant’s defence to the disciplinary charges.  Alternatively, if the Former Auditor was charged and acquitted, the applicant is entitled to know the basis on which the Disciplinary Committee acquitted them, and this is plainly relevant to his defence.

21.  In substance, the applicant’s contentions made under Ground 1 is premised fundamentally on the arguments that the Requested Information is materially relevant to the formulation of his defence.

22.  As to Ground 2, the applicant simply relies on and repeats his above submissions to say why the Requested Information is relevant and hence the Judge’s otherwise conclusion is wrong[8].

23.  It can be immediately seen that the merit or demerit of these two grounds of appeal depends principally on the applicant’s contentions that the Requested Information is relevant, which is essentially Ground 2.  For convenience, we will therefore turn to consider Ground 2 first.

D2.   Ground 2

24.  The Judge has explained his reasons as to why the Requested Information is irrelevant to the determination of the Third Complaint at paragraphs 21 ‑ 23 of the Judgment as quoted above.

25.  We respectfully agree with the Judge’s reasons.

26.  As observed by the Judge, the Third Complaint is about the applicant’s failure to qualify his opinion in the 2010 and 2011 Audited Reports in relation to the Impairment Provision, but not on the correctness or amount of that provision.  It is an objective fact that the applicant did not qualify his opinion in the 2010 and 2011 Audited Reports.  Hence, as rightly pointed out by the Judge, the only essential and operative issue that needs to be determined in this complaint is whether the applicant can provide any reasonable explanations to justify why as at the time of these reports he did not find it necessary to qualify the opinion vis-à-vis the Impairment Provision.  The issue in turn relates to matters, circumstances and information that are known to the applicant at the time when he prepared those audited reports.  These do not and would not depend on what happened or existed during the time of the Former Auditor, in particular when these matters were not even known to the applicant at the time when he prepared the 2010 and 2011 Audited Reports.

27.  Further, in our view, the applicant’s contention that he requires the Requested Information to formulate his defence is without merits when considered in this context:

(1)   As pointed out above, the Former Auditor indeed qualified his opinion in the 2007 and 2008 Audited Reports in relation to the Impairment Provision.

(2)   Similar to what the Former Auditor did for the 2007 and 2008 Audited Reports, the applicant also qualified his opinion in the 2009 Audited Report.  In the premises, what can only be relevant to the Third Compliant is what were the reasons or circumstances that the applicant could say had occurred after the 2009 Audited Report that justified not similarly qualifying his opinion in the subsequent 2010 and 2011 Audited Reports.  This plainly has nothing to do with the Former Auditor or what happened at the time when the Former Auditor prepared the 2006 to 2008 Audited Reports.

28.  For these reasons, the Judge is plainly right in concluding that it is not reasonably arguable that the Requested Information is relevant to the applicant’s defence to the Third Complaint.

29.  Ground 2 has no merits and should be rejected.

D3.   Ground 1

30.  As mentioned above, the applicant’s contentions under Ground 1 that the Decisions are not intermediate or procedural decisions focus on the arguments that the Requested Information is relevant to his defence to the Third Complaint.

31.  Given that the nature of the applicant’s applications were requests for information and our above conclusion that that the Requested Information is irrelevant to the Third Complaint, the Judge is again clearly right in concluding that the Decisions are intermediate and procedural in nature.

32.  The applicant has further complained in this appeal that the Judge failed to consider the numerous authorities cited at paragraphs 75 - 89 of the Form 86[9].

33.  There is also nothing in this complaint.  These authorities concern the general principles governing the duty of disclosure and right to a fair hearing which, as noted by the Judge, are not disputed by the parties[10]. It is simply unnecessary for the Judge to consider in any details these authorities.

34.  Ground 1 must similarly fail and be dismissed.

D4.   The Institute’s Respondent’s Notice

35.  For this appeal, the Institute has filed a Respondent’s Notice[11] seeking to affirm the Judgment on the following additional grounds:

(1)   The leave application for judicial review is premature as the applicant has not exhausted an alternative remedy by making a formal application to the Disciplinary Committee for disclosure of relevant evidence under Rule 16(1) of the Disciplinary Committee Proceedings Rules.

(2)   The Requested Information is irrelevant since there is in any event a distinct and significant difference in how the Former Auditor and the applicant respectively treated the underlying value of CLH’s investment in the Subsidiary. 

(3)   The Requested Information is by nature subject to obligations of confidentiality, and unless the disclosure is genuinely relevant to the disciplinary proceedings or otherwise necessary to ensure procedural fairness (which the applicant failed to show to be the case), such confidentiality obligations should be observed and upheld.

36.  With no disrespect to Ms Tong (appearing for the Institute), given our above conclusion that the grounds of appeal have no merits, we do not find it necessary to consider these grounds under the Respondent’s Notice.

E.     DELAY IN THE DISCIPLINARY PROCEEDINGS

37.  The regulation of a profession is an important and onerous responsibility.  Where a regulatory body has been specifically enacted to regulate and control a profession, it reflects both the legislative and public concern that the profession maintains certain standards of practice, and that it provides the service to the community as expected.  This in turn protects the public for the reliance and trust it has placed on the profession.

38.  Hence, as with criminal proceedings and trials, it is in the public interest that disciplinary proceedings by its nature should be proceeded expeditiously and effectively.  Save in exceptional circumstances, they should not be delayed and subjected to collateral and satellite litigations through judicial review applications where the complaints can and should be raised within the substantive disciplinary hearing or the appeal process thereafter.  Judicial review is not meant for the purpose of micro‑managing the activities of subordinate tribunals or administrative decision-makers.  The court sitting in its supervisory role in judicial reviews should therefore rarely interfere with the interlocutory process of disciplinary proceedings.  Cf: Financial Secretary v Wong (2003) 6 HKCFAR 476, at [13] (per Bohkary PJ), [93] and [95] (per Litton PJ); Yeung Chun Pong & Others v Secretary for Justice [2008] 3 HKLRD 1 per Stock JA (as he then was) at [60] - [66]; D v Secretary for Justice [2013] 3 HKLRD 373, per Lam JA (as he then was) at [17] - [18].

39.  The undesirability of having disciplinary proceedings unnecessarily and significantly delayed by such judicial review applications is highlighted in the present case.

40.  As mentioned above, the present disciplinary proceedings were commenced in February 2014.  It is by now more than five years since its commencement.  As of today, the proceedings are still only at the stage where the filing of the respective cases and replies by the Institute and the applicant has just been completed[12].

41.  The significant and unnecessary delay is predominantly caused by the applicant’s two consecutive unsuccessful leave applications to apply for judicial review regarding various intermediate and procedural decisions made by the institute and the Disciplinary Committee.  This is clearly unsatisfactory as further demonstrated by the fact that the applicant took out the present leave application not long after the first unsuccessful leave application, thereby further interrupted the progress of the disciplinary proceedings again after already a long delay.

42.  In this respect, as pointed out by the learned Vice-President at the hearing, professional bodies should be reminded that an application for judicial review relating to an on-going disciplinary proceedings does not generally operate as a stay.  In the premises, the disciplinary proceedings in question should in principle continue to proceed notwithstanding such an application, unless the court has ordered a stay or there exist other good reasons not to so proceed.

F.   CONCLUSION

43.  For these reasons, the applicant fails on all his grounds of appeal.  We accordingly dismiss the appeal.

44.  There are no reasons why costs should not follow the event.  Ms Tong for the Institute has asked for costs to be awarded on an indemnity basis.  It is her submissions that the appeal is devoid of any merits and is an abuse of process.

45.  The applicant however submits[13] that costs should only be taxed on a party to party basis as there are no special circumstances to justify awarding costs on an indemnity basis.

46.  We agree with Ms Tong.

47.  For the reasons we have alluded above, it is obvious that this intended judicial review is without merits and should not have been pursued.  The lack of merits of the intended judicial review must have become even clearer to the applicant after he has had the chance of reading the reasons in the Judgment, which are premised on trite principles in public law applied to the indisputable evidential context of the present case.  The applicant’s grounds of appeal amount to nothing more than a repeat of the rejected arguments made before the Judge and are without any merits.  This is, as pointed out by Ms Tong, underlined by the applicant’s decision not to attend the hearing himself and rely only on his written submissions for the purpose of the appeal[14].

48.  In the premises, it should be clear to the applicant that this appeal is devoid of any merits, and in light of the principles and background of this matter as set out in paragraphs 37 ‑ 42 above, it is an abuse of process for him to pursue this hopeless appeal.

49.  We therefore order that the applicant shall pay the Institute costs of this appeal on an indemnity basis.

50.  As to the assessment of the costs, the Institute’s statement of costs[15] provides its total costs to be $434,253.  The applicant contends that the amount is clearly excessive as the Institute’s solicitors and counsel are both involved in the court below and familiar with the matter.

51.  Of the $434,253: (a) $89,753 represents costs incurred by the solicitors in preparing for the appeal (including professional works for communications, preparation of documents, perusal of documents, preparation for and attending the hearing) and disbursement; and (b) $344,500 represents counsel’s fees (with $292,500 as counsel brief and $52,000 as her fee for reviewing the judgment and the Notice of Appeal, and drafting the Respondent’s Notice and perusal of documents).

52.  In our view, given that the appeal (which is fixed for a 3‑hour hearing) is a straightforward one, and that counsel is already involved at the hearing before the Judge and thus familiar with the matter, a brief fee of $292,500, which provides for a 3.5 to 4 days’ preparation for the appeal,[16] cannot be regarded as reasonable, even on an indemnity basis.  We are of the view that a brief fee of $200,000 is reasonable.  As to the other items of costs, we do not think they can be regarded as unreasonable given that the applicant sought to reargue everything in the appeal again.

53.  In the premises, we summarily assess the Institute’s costs to be $341,753 ($89,753 + $52,000 + $200,000).

54.  The Disciplinary Committee fairly and rightly has not asked for costs.  We make no order as to costs as between the applicant and the Disciplinary Committee.