麥家榮 v. 鍾氏律師事務所

HCMP 829/2022

[2023] HKCFI 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 829 OF 2022

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JUDGMENT

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INTRODUCTION

1.  This is the substantive hearing of the Originating Summons filed by the plaintiff on 30 June 2022 pursuant to which the plaintiff applies for an order under section 67 of the Legal Practitioners Ordinance (Cap.159, Laws of Hong Kong) (“the Ordinance”) for the taxation of three bills of costs delivered by the defendant law firm, namely, Bill No.214374 dated 22 October 2021 (“the First Bill”), Bill No.224543 dated 14 January 2022 (“the Second Bill”) and Bill No.224836 dated 12 May 2022 (“the Third Bill”) (collectively, “the Bills”) respectively. 

FACTUAL BACKGROUND

2.  The following factual background is adopted from the Affirmation of Ma Kit Wing filed on 25 July 2022 which is undisputed by the plaintiff.

3.  On 28 September 2021, the plaintiff approached the defendant law firm for legal advice in relation to his disputes with the other directors and shareholders of Wamido Holdings Limited (“the Company”). On the same day, the defendant law firm issued an email to the plaintiff, in which it was stated, inter alia, that:

(1)  The defendant law firm’s fees would be charged on actual time spent basis;

(2)  The defendant law firm was prepared to give the plaintiff a 10% discount on its fee earners’ usual hourly rate;

(3)  While it was roughly estimated that the defendant’s fees in going through the documents provided by the plaintiff and attending a 2-hour meeting would be around $65,000, the defendant was willing to cap its fee at $35,000 (“the 1^st Fee Cap”).

4.  On 29 September 2021, the plaintiff and the defendant law firm executed an Agreement for Appointment of Hong Kong Legal Adviser (“the Agreement”) to which the Terms of Business (“the Terms of Business”) were attached. 

5.  The plaintiff paid the defendant $35,000 as costs on account on the same day.

6.  At the beginning of this retainer, Mr Lawrence Chan (“Chan”) of the defendant law firm was the partner-in-charge of this case.  Chan assigned Mr Santos Cheung (“Cheung”), who was then a paralegal pending admission as a solicitor in Hong Kong, to assist him.

7.  From the beginning of the engagement up to 15 October 2021, the defendant law firm has been instructed by the plaintiff to undertake various tasks, including but not limited to reviewing at least 200 pages of documents provided by the plaintiff, reviewing letters issued by other parties including the enclosures thereof, issuing letters to other parties and attending a 2-hour conference with the plaintiff.

8.  On 22 October 2021, the plaintiff approached the defendant for further legal advice since there has been new developments in the plaintiff’s shareholders’ dispute.  In a telephone conference held between the plaintiff and Chan (“the 22 October Telephone Conference”), the plaintiff instructed the defendant to issue some letters. 

9.  After this telephone conference, the defendant law firm issued an email to the plaintiff on the same day, to which the First Bill (together with a Statement of Work in respect of the defendant law firm’s work done and disbursements incurred during the period from 29 September 2021 to 15 October 2021) was attached.  A total fee of $217,710 was charged thereunder.  The breakdown thereof is as follows:

Part	Original Profit costs/expenses	Profit costs/ expenses charged
(1) Preliminary Advice and meeting (from 29 September 2021 to 30 September 2021)	$68,300	$35,000 (in view of the 1st Fee Cap)
(2) Work subsequent to the meeting (from 4 October 2021 to 15 October 2021)	$202,350	$182,115 (after discount)
(3) Expenses and Disbursements	$595	$595

10.  It was further stated in the said email (and shown in the First Bill) that after deducting the defendant’s fees, the balance of the plaintiff’s costs on account was $17,290 (the original amount of costs on account was $235,000).

11.  The said email also referred to the 22 October Telephone Conference and put on record that the defendant agreed to cap its fees for the preparation and issuance of a letter as instructed by the plaintiff at the amount of $117,290 (“the 2^nd Fee Cap”).  It further requested the plaintiff to pay $100,000 as costs on account, which the plaintiff duly did on 26 October 2021.

12.  From 3 November 2021 to 22 November 2021, the defendant law firm was instructed by the plaintiff to advise on certain company law matters and to issue a further without prejudice letter to the other parties.

13.  On 23 November 2021, the plaintiff received various notices for extraordinary general meetings (“EGMs”) from the Company and its subsidiaries.  In view of the urgency of the matter, the defendant law firm reviewed the said papers and arranged a telephone conference with the plaintiff on the same day for discussion on whether winding-up petition (“the Petition”) should be issued and whether an application should be made for the appointment of provisional liquidators for the Company (“the PL Application”).

14.  The plaintiff instructed the defendant law firm in writing to proceed with the Petition and the PL Application that night.

15.  In response, the defendant law firm informed the plaintiff by an email dated 24 November 2021 that the estimated fees for the Petition and the PL Application (up to and including the first hearing of the PL Application) would be in the region of $300,000 to $350,000.  However, the defendant stated that it would be willing to cap its fees at $250,000 (“the 3^rd Fee Cap”).  The defendant further asked to plaintiff to pay costs on account in the sum of $350,000 which the plaintiff duly did on 25 November 2021.

16.  In the light of the very large volume of documents involved, the complexity of the issues and the urgency of the matters, Chan considered that it would be more appropriate to engage another partner with sufficient experience, skill and expertise in insolvency law for the purpose of supervising and reviewing the day-to-day work of the paralegal and junior counsel engaged to deal with the matter.  Mr Ma Kit Wing (“Ma”) was therefore asked to act as the partner-in-charge of the case in the place of Chan, while Chan would keep his high-level supervisory role.  This new arrangement was accepted by the plaintiff in a meeting held on 30 November 2021.

17.  On 6 December 2021, the plaintiff instructed the defendant to commence HCCW 467/2021 by filing the Petition, and made the PL Application therein.

18.  On 16 December 2021 and 28 December 2021, the Company and its subsidiaries convened EGMs and resolved to remove the plaintiff as a director of the Company and its subsidiaries.  As this matter was closely related to the Petition and the PL Application, it was decided that the plaintiff should file a further affirmation so as to adduce additional evidence in support of his case.  This affirmation was then filed on 4 January 2022.

19.  On 30 December 2021, the 3^rd respondent in HCCW467/2021 (“the 3^rd respondent”) made an open offer to the plaintiff by letter, which enclosed a revised investigation report and a share valuation report of the Company.

20.  On 5 January 2022, the 3^rd respondent also filed a summons seeking to strike out the Petition (“the Striking-out Summons”) which was supported by two affirmations.

21.  The PL Application and the Striking-out Summons were heard on 11 January 2022 by Harris J, who adjourned the matters to an early date to be fixed for substantive argument.

22.  The defendant law firm then issued the Second Bill on 14 January 2022, which covered the work done in the period between 16 October 2021 and 11 January 2022.   The total amount charged was $708,223.9. The breakdown is as follows:

Part	Original Profit costs/expenses	Profit costs/ expenses charged
(1) Issuance of letters to directors (from 16 October 2021 to 2 November 2021)	$142,720	$117,290 (in view of the 2nd Fee Cap)
(2) Services rendered before commencement of HCCW 467/2021 (from 3 November 2021 to 23 November 2021)	$82,140	$73,926 (after discount)
(3) Commencement of HCCW 467/2021 (up to the 1st hearing) (from 24 November 2021 to 11 January 2022)	$741,080	$250,000 (in view of the 3rd Fee Cap)
(4) Other services including the issuance of further letters to the 3rd respondent and review of affidavit evidence in opposition, skeleton, list of authorities and additional hearing bundles, etc. from the 3rd respondent in the Petition (from 31 December 2021 to 9 January 2022)	$163,875	$147,487.5 (after discount)
(5) Expenses and Disbursements	$119,520.4	$119,520.4

23.  The Second Bill showed (by way of calculation) that the then balance of the costs on account ($467,290) would be used to pay towards part of the bill, and the amount due was therefore reduced to $240,933.9.

24.  The Second Bill was sent to the plaintiff by email on 14 January 2022.  This email stated that the Second Bill would be paid off partly by the costs on account held by the defendant law firm.  Through this email, Chan also requested the plaintiff to pay:

(1)  $240,933.9 as the balance of the amount due under the Second Bill; and

(2)  $500,000 as costs on account for:

(a)  Estimated counsel’s fees for preparation for and attending the adjourned hearing; and

(b)  The defendant law firm’s estimated fees for their work up to the adjourned hearing (which would include (i) preparing affirmation in reply; (ii) reviewing the 3^rd respondent’s affirmation in reply; (iii) correspondence with the plaintiff, counsel and the court; and (iv) preparing for and attending the adjourned hearing).

25.  It was also stated in the email that solicitors’ work done for settlement negotiation (if any) would be charged separately.

26.  On 19 January 2022, the 3^rd respondent in HCCW 467/2021 made a revised open offer to the plaintiff, and in response, the plaintiff made a counter-offer on 25 January 2022. 

27.  On 16 February 2022, the defendant law firm attended a call-over hearing of the Petition before Master Lai, in which the learned Master adjourned the hearing, and expressly asked the plaintiff to:

(1)  answer the Court’s requisitions for the purpose of the application for Registrar’s Certificate before the adjourned hearing; and

(2)  consider whether he should amend the Petition and name all the minority shareholders of the Company as co-respondents to the Petition.

28.  The defendant law firm then sent an email to the plaintiff on 21 February 2022 and informed him, inter alia, that:

(1)  Substantial amount of work has to be done pursuant to the directions given by the learned Master in the call-over hearing, which would fall outside the original scope of service;

(2)  The defendant law firm agreed to cap its fee for (i) complying with or addressing the directions or requisitions made by Master Lai in court note and in Court; and (ii) preparing for and attending the adjourned petition hearing on 30 March 2022 at $100,000 (exclusive of expenses and disbursements) (“the 4^th Fee Cap”);

(3)  The 4^th Fee Cap does not apply to (i) addressing additional directions and/or requisitions to be further made by the Court in relation to the Petition in future (if any) or (ii) attending any further adjourned petition hearing(s) (if any) after the one to be held on 30 March 2022.

29.  After some negotiations, it was agreed between the plaintiff and Chan on 26 February 2022 that the 4^th Fee Cap should be revised to $60,000 (“the Revised 4^th Fee Cap”). The plaintiff then paid the defendant law firm the sum of $60,000 on 1 March 2022 as costs on account accordingly.

30.  The plaintiff also paid off the amount due under the Second Bill by payments made on 1 March 2022 ($100,000), 10 March 2022 ($100,000) and 17 March 2022 ($100,933.9).

31.  On 11 March 2022, the plaintiff was notified that the Company would convene another EGM.  After reviewing the documents, the defendant law firm proposed certain possible actions in response, and provided the plaintiff with a corresponding fee estimate in the region of $100,000 to $120,000.

32.  After negotiation, the defendant law firm agreed on 12 March 2022 to cap its fee at $80,000 (“the 5^th Fee Cap”) which the plaintiff accepted.

33.  The plaintiff then paid costs on account on 14 March 2022 in the sum of $80,000 as requested by the defendant.

34.  On 12 May 2022, the defendant law firm issued the Third Bill to the plaintiff covering its work done from 12 January 2022 to 11 May 2022.  Its breakdown is as follows:

Part	Original Profit costs/expenses	Profit costs/ expenses charged
(1) PL Application summons and Striking-out Summons	$945,875	$448,000 (in view of the fee estimate)
(2) Services relating to the adjourned Petition hearing and the Amendment Application	$167,800	$60,000 (in view of the Revised 4th Fee Cap)
(3) Proposed actions regarding EGM of the Company on 25 March 2022	$146,925	$80,000 (in view of the 5th Fee Cap)
(4) Other services	$438,350	$394,515 (after discount)
(5) Expenses and Disbursements	$82,784.95	$82,784.95

35.  Shortly after the Third Bill was issued on 12 May 2022, the defendant law firm received a letter from Messrs. Benny Kong & Tsai, Solicitors dated 12 May 2022 informing the defendant that they would take over the conduct of HCCW 467/2021 on behalf of the plaintiff.

36.  For the purpose of the substantive hearing held on 15 March 2023, the plaintiff has helpfully prepared a summary of invoices and payment with the support of the relevant documents.  Mr Cheung for the defendant fairly accepted that the information in the summary is accurate and has raised no objection against the plaintiff referring to this summary at the hearing.  I therefore quote the said summary below:

Date	Description	Amount	Amount
28 Sep 2021	Costs on Account Inv.P210064	$35,000.00
29 Sep 2021	Payment for Inv.P210064		$35,000.00
30 Sep 2021	Costs on Account Inv.P210067	$200,000.00
5 Oct 2021	Payment for Inv. P210067		$200,000.00
22 Oct 2021	First Bill	$217,710.00	($217,710.00)
22 Oct 2021	Costs on Account Inv.P210075	$100,000.00
26 Oct 2021	Payment for Inv.P210075		$100,000.00
24 Nov 2021	Costs on Account Inv.P210093	$350,000.00
25 Nov 2021	Payment for Inv.P210093		$350,000.00
14 Jan 2022	Second Bill	$708,223.90	($708,223.90)
14 Jan 2022	Costs on Account Inv.P220077	$500,000.00
15 Jan 2022	Payment for P220077		$250,000.00
17 Jan 2022	Payment for P220077		$250,000.00
1 Mar 2022	Costs on Account Inv.P220030	$60,000.00
1 Mar 2022	Payment for Second Bill		$100,000.00
10 Mar 2022	Payment for Second Bill		$100,000.00
14 Mar 2022	Costs on Account Inv.P220034		$100,933.90
17 Mar 2022	Payment for Second Bill	$80,000.00
24 Mar 2022	Payment for P220034		$80,000.00
12 May 2022	Third Bill	$1,065,299.95	($1,065,299.95)
	Amount due to the defendant		($425,299.95)

THE PLAINTIFF’S GROUNDS IN SUPPORT OF TAXATION

37.  In his 1^st Affirmation filed on 30 June 2022, the plaintiff relied on the following two grounds in support of his application herein:

(1)  the defendant did not set out the time spent in respect of each and every item of work in the Bills, but lumped several items of work together and only stated the total time spent for those items of work;

(2)  the time spent was unreasonable, and the time charged was much more than the actual time spent.

38.  In his 2^nd Affirmation filed on 29 August 2022, the plaintiff added that:

(1)  He just glanced through the Agreement quickly, and the defendant did not explain the content thereof to him;

(2)  He had indeed complained to the defendant about the excessive charges after his receipt of the First Bill.  However, he did not argue with the defendant at the time because he did not want to affect the then ongoing court case.

39.  At the hearing, the plaintiff also argued that the Bills were not final bills as such, and therefore the time under section 67 of the Ordinance has not started to run yet when he filed the Originating Summons herein.  He further alleged that the defendant law firm had charged him for work which should have been included in the agreed cap fees.

40.  Moreover, the plaintiff was not satisfied that there were duplication of work done in the sense that the same work was done by Cheung and then Chan, and he was charged twice.

THE RELEVANT LEGAL PRINCIPLES

Section 67 of the Ordinance

41.  Section 67 of the Ordinance provides that:

“(1) On the application, made within 1 month of the delivery of a solicitor’s bill or a foreign lawyer’s bill, of the party chargeable therewith the Court shall, without requiring any sum to be paid into court, order that the bill shall be taxed and that no action shall be commenced thereon until the taxation is completed.

(2) If no such application is made with in the period mentioned in subsection (1), then, on the application of the solicitor or the foreign lawyer, or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order—

(a) that the bill shall be taxed;

(b) that, until the taxation is completed, no action shall be commenced on the bill, and any action already commenced be stayed:

Provided that—

(i) if 12 months have expired from the delivery of the bill, or if the bill has been paid, or if a verdict has been obtained or a writ of inquiry executed in an action for the recovery of the costs covered thereby, no order shall be made on the application of the party chargeable with the bill except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the Court may think fit;

(ii) if the bill has been paid, no order under this subsection shall be made where the application for the order is made after the expiration of 12 months from the date of payment of the bill.

[…]”

42.  The combined effect of the above statutory provisions is that[1]:

(1)  Within one month of the delivery of the solicitors’ bill, the client may apply to have the bill taxed by the Court as of right.  No leave is required for this purpose, and no condition will be imposed: Section 67(1) (“Scenario (1)”);

(2)  If the bill has been delivered for more than one month but less than 12 months, the Court, upon the application of either the solicitors or the client, may make an order for the bill to be taxed, and may impose terms which it thinks fit when doing so (save that the terms must not be in relation to the costs of the taxation): Section 67(2) (“Scenario (2)”);

(3)  If 12 months or more have elapsed since the delivery of the bill or if the bill has been paid, no order to tax shall be made on the application of the client except in special circumstances, and the Court may impose any terms of condition without limitation (i.e. the terms may be in relation to the costs of the taxation): Section 67(2), Proviso (i) (“Scenario (3)”);

(4)  If the bill has been paid, no order to tax can be made if the application for an order of taxation is made more than 12 months from the date of payment: Section 67(2), Proviso (ii) (“Scenario (4)”).

43.  I should add that, in my view, even if the client has paid the bill, he is still entitled to have the bill taxed as of right if he applies for an order for taxation within one month after the delivery of the bill (i.e. under Scenario (1)), and does not need to show any special circumstances as such.  This is because Proviso (ii) under section 67(2)(b) of the Ordinance is only applicable to subsection (2), which in turn is only applicable to the situation where “if no such application is made within the period mentioned in subsection (1)” (i.e. application for taxation made within one month of the delivery of the solicitors’ bill).

Special circumstances

44.  If the bill falls within Scenario (3) above, then the Court should not order taxation of such a bill unless it is satisfied that there are special circumstances in the case.

45.  In Sutherland v CRB (a firm) [2023] 1 HKLRD 1, Au-Yeung J had the following to say on the meaning of “special circumstances”:

“ ‘Special circumstances’ in Proviso 1 is a very flexible concept that depends on the Court’s assessment of the facts and circumstances of the particular case. The discretion is a wide one. They are those which appear to the judge so special and exceptional as to justify taxation. They are not capable of precise definition or exhaustive enumeration. The following constitute special circumstances:

(1) they are something out of the ordinary, something serious to justify not only an ordinary taxation but a special one;

(2) the discretion to extend the limitation is a wide one and a liberal interpretation should be given to the words ‘special circumstances’;

(3) each case will depend on its own facts;

(4) overcharging and false charging are well-established special circumstances; and

(5) lack of particularity in the bill also constitutes a special circumstance.

See Withers (a firm) v Antonia Basile §§10-11, citing Ding Xiaohung v King & Wood [2013] HKC 245, §32, DHCJ Lok (as he then was).”

Final bill vs interim bill

46.  As to whether a bill should be regarded as an interim bill or final bill, Au-Yeung J held in Sutherland v CRB (a firm) (supra) that:

“To distinguish an interim and final bill, the court has to ask 2 questions: whether the solicitor had the power to send it as a final bill and whether it had been delivered as a final bill. The court has to determine whether the bills were issued at natural breaks. As a matter of law and policy, the court should lean against an interpretation that authorizes the issuance of a number of periodic final accounts under a retainer. See China Health Group §24; following Li Shu Chung v Stevenson, Wong & Co (a firm) [2018] HKCFI 2372, DHCJ Le Pichon, at §14; Chin Yuk Lun Francis v Lo & Lo (unrep, HCMP 1142/2005, 7 July 2006) DHCJ To, at §§10-18.”

47.  In an earlier authority Chinachem Charitable Foundation Limited (華懋慈善基金有限公司) v Wilkinson & Grist (a firm) [2021] HKCFI 3639, Anthony Chan J, having reviewed a number of authorities, endeavoured to provide the following “simple and logical roadmap of the principles” at [24]:

“(1) A retainer is normally an entire contract under which a solicitor is to do certain work for his client. In the absence of a contrary agreement, the solicitor is not entitled to be paid until the work has been completed or the retainer has been terminated. Thus, in protracted litigation, the burden of financing the client’s litigation falls upon the solicitor.

(2) To mitigate this harshness, the principle of natural breaks evolved, whereunder the solicitor becomes entitled to bill his client upon the occurrence of a natural break in the course of protracted proceedings which have not concluded.

(3) In course of time, another practice had also developed under which the solicitor’s right to demand interim payment is written into the retainer. Hence, the modern approach is to look first at the retainer to see if the solicitor has the contractual right to issue bills prior to the conclusion of the matter for which he was retained. If he has no such right, he may only issue bill at natural breaks in the course of providing his service.

(4) It will be seen in para 47 below that this court is of the view that where a retainer has provided for the right to demand interim payment by the solicitor, the principle of natural break is not applicable.

(5) If there is authority in the retainer for rendering bills prior to the conclusion of service, then it is a matter of construing the retainer in order to see whether the bills (by whatever term they are called – though usually they are called ‘interim bills’) are each a periodic final bill (in the sense that it will not be changed and implies self-containment) or interim bill (in the sense of a statement to show how the work was progressing). Whilst a retainer may authorise the issue of a number of periodic final bills, the court should lean against such an interpretation.

(6) Para (5) is important because if a bill is a periodic final bill the right to taxation would start to run from its delivery.

(7) Where the retainer does not provide for the issuance of interim bill and the solicitor relies upon natural breaks to do so (para (2) above), more than one such bill may be issued. On limitation period for taxation, where each of the bill is a separate final bill, the prima facie time limit for taxation is one month from delivery for each bill. If the bills are a series which together form one composite bill, then the prima facie time limit is one month from the delivery of the final bill in the series.

(8) This concept of treating a series of bills as a single bill was evolved for the purpose of overcoming statutory time-bars for taxation.

(9) I am inclined to the view that, like natural breaks, it is a concept which is not applicable to cases whether the retainer provides for interim bills. In such cases, it is a matter of construction whether the bills are periodic final bills, and the court should lean against such construction (para (5) above and see further below).

(10) To determine whether a bill is a separate final bill or one of a series of bills, the court asks two questions: first, whether the solicitor has the power to send it in as a final bill (‘1^st Question’) and second, whether the bill has been delivered as a final bill (‘2^nd Question’). The answers to both questions must be in the affirmative if one bill amongst a number of bills is to be treated as a separate final bill of costs. The burden of proof in respect of both questions is on the solicitor.

(11) In respect of the 1^st Question:

(i) the solicitor has to prove that the bill was rendered within a natural break in the litigation;

(ii) a natural break is not synonymous with the conclusion of a distinct and separate matter. The matter should be considered form the perspective of the lay client;

(iii) to constitute a natural break there must be either: (a) a physical break in the litigation process of such a duration as would entitle a solicitor to say to his client that the matter is going to be inactive for an indefinite period or for a foreseeably long period, so that it is appropriate to square or finalise the account for the time being; or (b) a break in the nexus between one component matter and another in the litigation.

(12) The 2^nd Question is one of fact involving two elements, namely: (a) the solicitor has to deliver the bill intending it to be a final bill; and (b) it must also be intended and understood by the client to be a final bill.  These questions are to be answered by looking at the intentions of the solicitor and the client, plus their conduct, including the reaction of the client upon receipt of the bill and the form that the bill took.”

(original emphasis of Anthony Chan J)

DISCUSSION

48.  To recap, the Originating Summons herein was filed by the plaintiff on 30 June 2022, whereas the subject bills were issued on the following dates:

(1)  First Bill – 22 October 2021;

(2)  Second Bill – 14 January 2022;

(3)  Third Bill – 12 May 2022.

49.  To decide whether an order for taxation should be made pursuant to section 67 of the Ordinance, the first issue which the Court has to resolve is: Out of the four scenarios as set out above, which scenario(s) the subject bills fall into. 

50.  To answer this question, the Court has to find out whether the time stipulated under section 67 has started to run; and if so, when it has so started to run. 

51.  This would depend on whether the subject bills are interim bills or final bills.

Interim bills or final bills

52.  I have already set out the principles which are relevant to the determination of whether the Bills are final bills. 

53.  In the present case, I am of the view that the defendant law firm did have the power to issue the Bills as final bills, because it has been so stipulated in Clause 8(d) of the Agreement, which provides that:

“The legal fees, together with the disbursements, shall be invoiced to Mr. Mak for payment and are payable immediately on issue of invoice free of all and any withholdings of tax or deductions. Each invoice represents the final bill. […]”

54.  The plaintiff stated that he has just glanced through the Agreement quickly before he executed thereon, and that the defendant did not explain the content thereof to him at the time.

55.  I do not think these assertions can assist him.

56.  Firstly, as a matter of fact, it is evident that the defendant law firm had sent the draft Agreement and the Terms of Business to the plaintiff on 28 September 2021 for his perusal, and the plaintiff did, by virtue of his email dated 29 September 2021, indicate that he had read those documents, and make various comments thereon.  According to the 2^nd Affirmation of Ma, the defendant law firm did revise the Agreement pursuant to one of the comments made by the plaintiff and send the revised Agreement together with the Terms of Business to the plaintiff again on the same day for his perusal.  The plaintiff then signed the Agreement.  In these circumstances, any complaint or hint that he did not know or understand the terms of the engagement must fail.

57.  Secondly, in any event, it is trite that where a person of full age and understanding has executed a document which purports to have legal effect as signifying his agreement thereto, the law has never regarded it as enough to show that he signed without knowing its contents, unless there is shown to be a recognized legal basis for concluding that the agreement has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity: Ming Shiu Chung & Others v Ming Shiu Sum & Others [2006] 2 HKLRD 831, at [84] – [90].  The plaintiff has not relied on any such recognized legal basis in the present case.

58.  Apart from finding that the defendant law firm did have the power to issue final bills prior to the conclusion of the engagement, I am also satisfied that the Bills had indeed been delivered as periodic final bills, because it is stipulated in the Terms of Business that, the Bills, once issued, would be payable immediately, and if they were not paid within 7 days from the date of the Bills, the defendant would have the right to charge interest at 1% per month from the date of the Bills until full payment thereof.  The defendant also had the right to suspend or even terminate the engagement if no timely payment was received.[2] It can also be seen that the defendant law firm did chase the plaintiff for payment of the Second Bill after its issuance.

59.  Therefore, the time under section 67 of the Ordinance should run from the respective dates of the Bills.

60.  In these circumstances, Scenario (1) and Scenario (4) can be ruled out in the present case because the Bills were issued more than one month but less than 12 months before the commencement of these proceedings.

Whether the Bills had been paid

61.  Whether the Bills should fall under Scenario (2) or Scenario (3) would depend on whether they had been paid by the plaintiff. If any of the Bills had been paid, then such a bill would fall into Scenario (3), under which the Court would not make an order for taxation unless the plaintiff can establish special circumstances.  On the other hand, if any of the Bills has not been paid, then such a bill will fall into Scenario (2), and in which case the Court will generally be more inclined to order taxation: Lee Chi Enterprises Co Ltd v KC Ho & Fong (a firm) (HCMP 61/2007, unreported, 13 September 2007), at [21], followed in Sutherland v CRB (a firm) (supra), at [26(2)].

The First Bill and the Second Bill

62.  The defendant law firm’s case is that both the First Bill and the Second Bill had been fully paid.

63.  As aforesaid, by the time when the First Bill was issued on 22 October 2021, the plaintiff had paid the defendant $235,000 as costs on account.  When the defendant issued the First Bill, the said costs on account was automatically applied towards the fees and disbursement payable under the First Bill, and as a result, it was shown in the First Bill that the balance of costs on account was reduced to $17,290.

64.  It appears that the defendant was indeed entitled to apply the plaintiff’s costs on account towards the outstanding amount under the Bills pursuant to Clause 8.4 of the Agreement[3] and section 7(a)(iv) of the Solicitors’ Accounts Rule (Cap.159F, Laws of Hong Kong)[4].  The effect of the defendant’s application of such costs on account towards the due amount of fees before the First Bill was issued to the plaintiff is that if the plaintiff did not apply for an order for taxation within one month (i.e. under Scenario (1)), the plaintiff would not be able to obtain an order for taxation unless he can show that there are special circumstances in the case.  In other words, such a case would never fall into Scenario (2). 

65.  The plaintiff argued that this legal consequence is quite unfair to him.  However, that seems to me to be the legal effect of the arrangement.  More importantly, it can be seen from the factual background recited above as well as the summary table of the plaintiff’s payment that the plaintiff did make three payments of $100,000, $100,000 and $100,933.9 respectively in March 2022 to settle the outstanding amount under the Second Bill.  In my view, that should be seen as the plaintiff’s endorsement (if such an endorsement was still needed despite the provision of Clause 8.4 of the Agreement) for the defendant law firm to apply the costs on account towards its outstanding fees.  Viewed in such light, there can be little doubt that the First and Second Bills must be regarded as having been paid for the purpose of section 67 of the Ordinance.

The Third Bill

66.  The Third Bill was issued on 12 May 2022. Excluding disbursements and expenses, there are 4 parts in this bill. 

67.  It is alleged by the defendant law firm that:

(1)  In Part 1 of the Third Bill, even though the plaintiff should have been charged for the sum of $945,875, the defendant had decided to charge him only for $448,000 because that was the estimated amount of fees, even though the defendant was not bound by such an estimation at all.

(2)  In Part 2 of the Third Bill, even though the profit costs incurred was in the sum of $167,800, the defendant only charged the plaintiff for $60,000 because it was the Revised 4^th Fee Cap.

(3)  In Part 3 of the Third Bill, even though the profit costs incurred was in the sum of $146,925, the defendant only charged the plaintiff for $80,000 because it was the 5^th Fee Cap.

(4)  The costs on account paid by the plaintiff had been duly applied to settle the costs under Parts 1 to 3 of the Third Bill. Therefore, the Court should not make any order for taxation in relation to those parts unless plaintiff can show special circumstances.

68.  There is no dispute that the Third Bill has not been fully paid, in that the plaintiff has not paid Part 4 and the expenses and disbursements thereunder.  For this reason, the defendant accepted that an order for taxation may be made in relation to these parts.  The question is, if part of the Third Bill has not been paid, is the defendant entitled to ask the Court to dissect the bill as if different parts under the Third Bill would constitute different bills for the purpose of section 67 of the Ordinance?

69.  In my view, there is no basis for the defendant law firm to interpret section 67 of the Ordinance in such a way.  In Proviso (ii) under section 67(2)(b), it mentions that the proviso would be applicable “if the bill has been paid”.  It does not say that “if a part of the bill has been paid”.  The bill concerned should therefore be considered as a whole.  In other words, unless the whole bill has been paid, the said proviso would not be applicable.

70.  Hence, the Third Bill should be regarded as not having been paid yet, despite the defendant’s application of the plaintiff’s costs on account for the settlement of the amount claimed thereunder partially.

Exercise of discretion in respect of the Third Bill

71.  In the light of my conclusion above, the Third Bill should fall under Scenario (2), and in such a case, the Court would incline to make an order for taxation, even though the Court still retains a general discretion to refuse taxation.

72.  If the plaintiff has made the application within one month after the issuance of the Third Bill, he would have been entitled to have it taxed as of right.  As he had only been “late” for 3 weeks (he made the application herein within 7 weeks after the delivery of the Third Bill), this is a very forceful factor which weighs in his favour.

73.  I have not lost sight of the defendant’s arguments that the defendant has charged the plaintiff in accordance with its estimation of fees as far as Part 1 is concerned (despite the fact that it was not obliged to do so), and it has only charged the plaintiff for the agreed capped fee in Part 2 and Part 3 of the Third Bill.    However, as explained, I do not agree that the Court may treat different parts of the same bill differently for the purpose of section 67 of the Ordinance.  I therefore do not think the Court may order that the taxation should only be limited to part of the bill.  Those arguments referred to above therefore cannot assist the defendant.

74.  Therefore, I would make an order for taxation of the Third Bill.

Special circumstances

75.  As aforesaid, the plaintiff has to show special circumstances in relation to the First Bill and the Second Bill. 

76.  To recap, the plaintiff argued that:

(1)  the defendant did not set out the time spent in respect of each and every item of work in the Bills, but lumped several items of work together and only stated the total time spent for those items of work;

(2)  the time spent was unreasonable: the time charged was much more than the actual time spent, and some of the time should have been included in the agreed cap fees;

(3)  the same work had been charged by more than one fee earner.

77.  I have considered the defendant’s undisputed evidence as well as the First and Second Bills carefully.  I am not satisfied that the plaintiff has made out his case on special circumstances for the following reasons:

(1)  The defendant has attached statements of work to both the First Bill and the Second Bill, and have particularised clearly the work undertaken for the plaintiff;

(2)  There is no basis for the plaintiff to allege that the time charged was much more than the actual time spent;

(3)  On the face of the descriptions of the work done, the time charged cannot be said to be excessive;

(4)  The charges which the defendant included in the First Bill on top of the cap fee of $35,000 (i.e. the section under “Work subsequent to the Meeting”) were apparently charged for work done subsequent to the meeting held on 30 September 2021;

(5)  The charges which the defendant included in the Second Bill on top of the various cap fees (i.e. Parts 2 and 4, disbursements and expenses) were apparently charged for work done which was not covered by the cap fees.  For example, to deal with the Striking-out Summons and the negotiations for settlement;

(6)  Cheung was firstly a paralegal and then a very junior solicitor at the time when the work was done for the plaintiff.  It is reasonable for a more senior solicitor to charge for the time which he has taken to supervise Cheung and double-check that Cheung’s work was in order.

78.  I will therefore refuse to make any order for taxation in respect of the First Bill or the Second Bill.

Conclusion

79.  To conclude, this Court would only make an order for taxation in respect of the Third Bill.

Interim payment

80.  The defendant law firm submitted that any order for taxation should only be made on the condition that the plaintiff shall make a payment into Court (or pay the defendant) a sum of $300,000.

81.  This submission was made on the basis that the plaintiff has not paid Part 4 or the expenses and disbursements of the Third Bill, in the total sum of $410,799.95.

82.  In Lau Yue Kui, the administrator of the estate of Lau Wai Chau, deceased & Others v Philip Chan & Co (a firm) (CACV 75/2014, unreported, 29 December 2014), Cheung JA adopted a number of principles on interim payment of costs.  In my view, those principles may be adapted as follows for the case of solicitors-client taxation[5]:

(1)  As a matter of general principle, there should be an order for interim payment;

(2)  The financial position of the parties is a relevant consideration.  If there are disposable funds where trustees are concerned, the Court should be more inclined to grant interim payment;

(3)  The consideration of hardship is not relevant in the exercise of discretion but whether the grant of interim payment would stifle the client’s ability to have the bill(s) taxed may be a factor in assessing quantum and the method and time of payment;

(4)  The approach to assessing quantum of the interim payment is to use the “rough and ready” approach to ensure a “close approximation of justice”;

(5)  The Court should consider what amount could be reasonably taxed off as the basis for interim payment.

83.  In the present case, the plaintiff has not alleged that he does not have the financial ability to satisfy any order for interim payment. Hence, the prime factor in the determination of the amount of interim payment would be the amount of fees/expenses/disbursements which could be reasonably taxed off by the taxing Master. 

84.  Adopting a “rough and ready” approach, I fix the amount of interim payment at $200,000.

ORDER

85.  For the above reasons, I give the following orders:

(1)  On the condition that the plaintiff pays the sum of $200,000 into Court within 21 days from the date of this Judgment, the Third Bill be referred to taxation by a taxing Master. 

(2)  If the condition under the preceding sub-paragraph is not complied with, the order for taxation shall lapse forthwith.

(3)  Upon compliance of the condition under sub-paragraph (1) above, the taxing Master do tax the Third Bill and certify what is due to or by the defendant law firm in respect of the Third Bill and in respect of the costs of the taxation in accordance with section 67(3) of the Ordinance.

COSTS

86.  Having taken into account the respective stance adopted initially by the parties and the outcome of the case, I make a costs order nisi that the plaintiff shall bear 75% of the defendant’s costs of these proceedings (including all costs reserved), to be taxed if not agreed. 

87.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.