TALENTS CORPORATION LTD v. SAVILLS PROPERTY MANAGEMENT LTD AND ANOTHER

HCMP 1238/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1238 OF 2011

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BETWEEN

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DECISION ON SUMMARY ASSESSMENT OF COSTS

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Introduction

1.  On 6 December 2011, I delivered my ruling, dismissing the Plaintiff’s summons filed on 4 July 2011 and making no order in respect of the 2^nd Defendant’s summons filed on 11 August 2011.  I also granted a costs order nisithat the Plaintiff do pay the 2^nd Defendant’s costs of the Plaintiff’s summons and the 2^nd Defendant’s summons, including all costs reserved, save and except for 20 minutes of the hearing on 6 December 2011 for which there would be no order as to costs. The order nisi had since become absolute. Pursuant to the directions in the ruling, the 2^nd Defendant had on 6 January 2012 lodged a statement of costs for summary assessment. The Plaintiff lodged points of objection on 10 January 2012. My assessment of the 2^nd Defendant’s costs appears below.

2.  The total costs claimed by the 2^nd Defendant are HK$89,306.00. The assessment is on party-and-party basis, such that costs will only be allowed where they are necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed: Order 62 rule 28(2) of Rules of the High Court, Cap.4A.

Litigation clerk’s rate

3.  The litigation clerk of the 2^nd Defendant’s solicitors was involved in manual work (Item B2, 1.9 hours). The 2^nd Defendant asked for a rate of HK$1,000.00 per hour, and the Plaintiff suggested HK$900.00 per hour with reduction of 0.9 hours.  In my view, the rate of HK$900.00 per hour and time spent as claimed areappropriate and reasonable given the nature of work involved and given the need to serve/send/file documents to/with the client, counsel, the Plaintiff’s solicitors, and the court.

Communications

4.  There is no dispute as to the solicitor fee earner’s rate is HK$3,000.00 per hour.  The 2^nd Defendant sought HK$12,900.00 for attendance on client (Item C1, 4.3 hours) and HK$17,700.00 for attendance upon counsel (Item C2, 5.9 hours).  The Plaintiff suggested that time spent for Items C1 and C2 should be reduced by 2.3 hours and 3.9 hours respectively.

5.  It is not wrong to say that for the 2^nd Defendant the Plaintiff’s summons came out of the blue.  At the substantive hearing for argument, Mr Chain, counsel for the Plaintiff, frankly admitted that the Plaintiff randomly nominated the 2^nd Defendant to represent the other owners and interests. It is therefore necessary for the 2^nd Defendant’s solicitor to take instructions from the client on the Plaintiff’s application without the usual gestation of an inter partes dispute.  Time would be required for attending the client to obtain initial instructions, to seek authority to engage counsel, to make arrangements for conference with counsel, to follow up with the client upon counsel’s advice, to take and confirm instructions for issuing the 2^nd Defendant’s summons and preparing the affidavit in opposition, and to handle other miscellaneous but necessary tasks associated with contested applications. In the context of the present applications, I am prepared to allow 3.5 hours.

6.  In respect of Item C3, I note there was a conference with counsel (Item E2) and there is no challenge by the Plaintiff against Item E2.  Obviously, the 2^nd Defendant’s solicitor’s presence at such conference is necessary or proper.  There would have been other necessary and/or proper communications with counsel over delivery of initial instructions and over further instructions following the conference and/or progress of the contested applications.  In the context of the present applications, I am prepared to allow 3.75 hours.

7.  I therefore disallow 4.45 hours of the total time claimed under Part C. The time allowed is 7.25 hours (i.e. 11.7 hours – 4.45 hours).

Solicitors’ professional work

8.  The 2^nd Defendant claimed that time was incurred for preparation of documents (Item D1, 3.2 hours) and perusal of documents (Item D2, 2.6 hours).  The Plaintiff suggested that Item D1 should be reduced by 0.2 hours and Item E1 (being counsel’s fees of HK$7,500.00 for drafting work) should be taxed off altogether due to duplication.  The Plaintiff claimed that Item D2 should be reduced by 0.6 hours.

9.  In respect of Items D1 and E1, it is obvious that both the solicitor fee-earner and counsel were engaged in drafting work.  This is not unusual as counsel are often engaged in settling drafts prepared by solicitors.  I see no justifiable reason why counsel’s fees should be taxed off altogether.  The relevant drafting work would include the 2^nd Defendant’s summons and the affidavit in opposition.  Given the contents of these documents and the nature of the applications, I would allow 2.5 hours for solicitor’s costs under Item D1 and further allow counsel’s fees under Item E1 in full.

10.  For Item D2, it will be noted that the Plaintiff filed 2 affirmations in support of the Plaintiff’s summons.  But notwithstanding the number of exhibits, the factual matrix disclosed in the affirmations are not too complicated. In these circumstances, the total time spent on perusal of documents is too long on party-and-party basis.  I agree with the Plaintiff that 2 hours would be necessary or proper.

11.  However, I see no reason why preparation for the hearing by the solicitor fee-earner (Item D3, 0.5 hours) and attendance at the call-over and substantive hearings by the solicitor fee-earner (Item D4, 2.65 hours) were unjustified.  Although the Plaintiff does not dispute the time spent at the hearingswas 2.65 hours, it is suggested that Item D3 be taxed off since the substantive hearing for argument was attended by counsel, and that Item D4 should be at the rate of a litigation clerk at HK$900.00.  In my view, such submissions reveals a misunderstanding of the roles performed by solicitor and counsel.  Although counsel was briefed to attend the substantive hearing for argument, the solicitor’s presence in rendering necessary assistance and instructions is not only useful but necessary or proper.  The solicitor fee-earner would be the one who was well familiar with the case and the client’s interests and instructions.  I am satisfied that the solicitor fee-earner’s attendance at the hearing is necessary and proper for protecting the rights of the 2^nd Defendant.  I will allow the Plaintiff’s claim under Items D3 and D4 in full.

12.  I therefore disallow 1.3 hours of the total time claimed under Part D. The time allowed is 7.65 hours (i.e. 8.95 hours – 1.3 hours).

Counsel fees

13.  I have dealt with the objection to Item E1 above.  Apart from Item E1, the Plaintiff has not raised other objections to counsel’s fees.  I therefore allow counsel fees in full.

Summary

14.  In summary, the costs of the 2^nd Defendant are assessed and allowed at HK$71,756.00.  The breakdown is as follows:

Parts	Time allowed	Costs allowed (HK$)
B. Manual Work		2,056.00
C. Communications	7.25 hours	21,750.00
D. Professional Work	7.65 hours	22,950.00
E. Counsel		25,000.00
Total		71,756.00