XCHRX KADER INDUSTRIAL CO. LTD. v. GALCO INTERNATIONAL TOYS N.V.

1991, No.A250

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

----------------

------------------

J U D G M E N T

-------------------

1. Two matters have arisen in relation to my judgment in this matter handed down on 23 August 1996.

2. The first relates to the interest to be awarded to Kader on the money that I have found due to it by Galco. The parties have now agreed that this should bear interest from 29 November 1990 to the date of judgment at the rate of 1% above prime. From the date of judgment, the money will bear interest at the judgment rate. I so order.

3. The other matter relates to the number of counsel used by Kader in respect of which a certificate should be granted. Kader briefed John Griffiths QC, Mr Barlow and Mr Chan. Galco briefed Mr Richard Mills-Owen QC and Mr John Bleach QC. The issue is whether or not Kader should be granted a certificate for three counsel. Mr Barlow argues that such a certificate should be granted. Mr Bleach says that the certificate should be in respect of two counsel only.

4. When the trial opened in December 1994, Kader was represented by only Mr Griffiths and Mr Barlow. Mr Chan was present, but as Mr Barlow's pupil. The trial was adjourned on 23 December 1994 and did not recommence until 20 March 1996. In the meantime, Mr Chan had completed his pupilage, and he was briefed by Kader as third counsel. He did not rise to his feet during the trial. His function was to assist Mr Griffiths and Mr Barlow, in the main, with the large number of documents involved in the trial.

5. In Bradford Dyers' Association Ltd v. Bury (1902) 19 R.P.C.125, The Master said :-

"In my opinion this case fulfils the requirements laid down by various decisions necessary to justify the employment of a third Counsel, viz. amount at stake; commercial importance; number of witnesses; intricacy and difficulty; length of time ... In my opinion ... a Defendant is entitled to consider the strength of the forces employed against him, and whether, having regard to that consideration, with common prudence he should go into Court without three counsel, and if the case fulfils the various requirements laid down which I have already commented upon the third Counsel should be allowed."

6. On an application to vary the Master's decision, Joyce, J said :-

"... I have come to the conclusion that I myself, if it had come before me in the first instance, should have allowed three Counsel, and I agree with the Taxing Master in what he has done in respect of that."

7. In Mölnlyke AB v. Proctor and Gamble Ltd [1992] Fleet Street Reports 549, Morritt, J referred to the Bradford Dyer's case without disapproval, but went on to say, in relation to the case before him :-

"There is no possible dispute that this case was complex, it was certainly long, it has undoubted commercial importance to the parties. I infer that the amount at stake was large. There was something like 12 witnesses. The discovery was extensive. However, the defendants managed to conduct their case, if I may say so, more than adequately with two counsel and I do not see why the plaintiffs should not have done likewise. ... I do not see why if the plaintiffs chose to have three counsel the defendants should pay for them."

8. There is no doubt that, by the measure of the factors mentioned in the Bradford Dyers' case, this case is well towards the upper end of the scale. Mr Bleach does not attempt to argue otherwise. The attitude adopted by Mr Bleach is that of Morritt, J. in Mölnlycke's case - "We were able to handle the case at least adequately with only two counsel; you should have been able to do likewise". This is an argument that is difficult to answer. Mr Barlow seeks to do so by pointing to the support received by Galco's counsel from the instructing solicitors. Their team of solicitors, he says, was stronger than our team. He says that Kader's instructing solicitors do not have a large litigation department, so it was necessary to engage an additional counsel to compensate. I do not think that this answers the Morritt argument. It is not, in my view, reasonable to employ additional counsel to make up for the lack of strength of instructing solicitors and expect the other party to pay for this. Galco's counsel had at least as difficult a job to do as Kader's counsel, and they were able to do this properly and effectively. I have no doubt that Mr Chan rendered valuable assistance to Mr Griffiths and Mr Barlow, but that would not have been necessary if Kader's instructing solicitors had been up to strength. If it was not up to strength, the answer was to employ an additional solicitor, not an additional counsel.

9. In the result, I am unable to find that I would be justified in granting Kader a certificate for three counsel; two counsel for each party was adequate for a proper and effective presentation of the case. I so order.

10. There remains the question of the costs of this application. It seems to me that the spoils should go to the victor. I make an order nisi that Kader should pay the costs of the application, with a certificate for counsel.

(J.K. Findlay)

Judge of the High Court.