YEUNG SHU AND ANOTHER v. MESSRS ALFRED LAU & CO (A FIRM)

HCA3759/90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3759 OF 1990

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D E C I S I O N

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1. This is a review of the tax bill after a review by the learned master, Master Kwan, on 20 November 1998, but this appeal only concerns with several items after the aforesaid review.

2. In respect of items 2 and 21 they concerned with the preparation and work done in the issue of a writ of subpoena against Mr Cullen, the plaintiff's own expert. It has been submitted by the first defendant that since Mr Cullen was the plaintiff's own expert the writ of subpoena was neither necessary nor proper.

3. I must say the submissions on both sides are quite evenly balanced on this item. Whilst it might be said that the expert would voluntarily attend the court, yet it is a common experience of litigants or litigants' lawyers that a voluntary witness may for other reason fail to attend courts - for example, he was otherwise engaged elsewhere - a litigant would understandably like to ensure any witness would attend court on time without any accidental excuse. I must say that on balance I accept Mr LO's submission that the attendance of this expert, fortified by the force of a court subpoena, would assist not only the plaintiff but all litigants in the case, otherwise the trial might have to be adjourned for this reason.

4. It is quite unanswerable if the expert failed to attend and the court asked the plaintiff why the plaintiff did not subpoena even its own expert in order to make sure that he would realise the necessity and the importance of attending court on time. I therefore accept the learned Master's reason as stated in the appeal in respect of items 2 and 21.

5. In respect of items 4 and 6, they concerned with the plaintiffs' attendance on their own clients for taking instructions to negotiate settlement. Mr LAU for the 1st defendant submitted that according to Butterworth Costs Services, 5th Edition, page B122 paragraph 333, there is a general rule against the allowance of abortive negotiation for settlement on a party and party taxation. However, the aforesaid paragraph only stated that:

"Where negotiations between the parties result in a compromise of the proceedings, thus obviating the need for a trial the costs of the negotiations will usually be allowed."

6. It did not state the general principle in the negative. In other words, there is no rule against the allowance of abortive negotiation and there is no rule which says that the allowance of aborted negotiation must be of some unusual circumstances; each case should decide on its own facts.

7. Here the offer was made by the first defendant's side, and naturally the plaintiffs' solicitor would have to attend on their own client for taking instructions to negotiate for a settlement. Even though the offer was not accepted, the negotiation, in my view, is a necessary and proper item on a party and party taxation. I agree with the learned Master on items 4 and 6.

8. In respect of items 14 to 15, it concerned with five pieces of advice given by Miss Gladys LI for the plaintiffs. The learned Master had perused those advice and came to the conclusion that each and every one of them were necessary and proper. There is no principle involved in the appeal of these five items. It was not urged on me to peruse those advices again by the first defendant's side. I cannot see any error in principle or law is involved. I therefore also allow these items to stand.

9. In respect of items 16 to 19, they concerned with various pieces of work done by counsel Mr JAT for the plaintiff at the hearing of the trial. I think both sides agreed on principle that counsel's brief fee should include a number of items like perusal of papers, preparation for trial. Here counsel itemised his work. The brief fee of $60,000 included two full days' preparation and appearance on the first day of the trial, that is, 9 October 1996. In addition to that, he charged separately under item 16 (B3.8): "Per perusal of papers, research and drafting affidavit and notes." The affidavit was never used. The original item was $27,000, they were taxed-off by $9,000. The learned Master only allowed $18,000 in addition to the brief fee of Mr JAT.

10. The second item is 17 (B3.9) which is advice by letter and drafting chronology. The original item was $6,600, it was taxed-off by $1,600. The drafting of chronology should be included in the brief fee. The taxing-off amount of $1,600, in my view, at least reflected the master's treatment of drafting chronology which should be included in the brief fee.

11. The next item 18 under B3.13 which the original description was "Pay fee to counsel JAT Siu Tong for advice over telephone on 24 April 1996." The original item of $2,500 was taxed-off by $500 leaving $2,000.

12. The last item, item 19 (B3.14) concerned with an advice by fax on 28 August 1996 and perusal of expert reports which was taxed-off from $2,500 by $700 to $1,800. It was a separate item for written advice by fax and also perusal, and I think it is upon perusal of expert report i.e., the perusal itself and upon such perusal there was an advice by fax in August 1996.

13. Items B3.9 and B3.14 are separate items chargeable by themselves. This is also the case for B3.13. I agree with Mr LO that itemising each and every piece of work would help the taxation instead of lumping them up to the brief fee.

14. The only item outstanding is item B3.8 for "Perusal of papers and Research" which is $18,000. The "drafting of affidavit and note" which has never been used was already taxed-off by $1,600. For Mr JAT in 1996 a counsel of his seniority, he could easily attract a brief fee of $80,000, and he itemised them by $60,000 for the first day appearance and two full-day preparation, together with $18,000 as a separate item for perusal of papers. I do not find that excessive at all. On principle if the brief fee of $78,000 or $80,000 is an allowable item for Mr JAT I do not find on principle the learned Master erred in law at all.

15. The last item is item 20, "consideration of evidence for this case of three and a half hours by solicitors." This was taxed down from seven hours. In my view, this was a reasonable length of time. I do not find any error in law at all.

16. The result is I do not feel persuaded by the appeal of the first defendant. The review has to be dismissed, I think, with costs to the plaintiff, to be taxed if not agreed.

MR LO: My Lord, maybe it assists the matter. My year of admission was in 1994 and my hourly rate is $3,000, and I intend to charge totally, including today's attendance, preparation, research, all the case studies and I totally charge four hours.

COURT: I don't think you dispute them, Mr LAU, four hours' preparation and court attendance?

MR LAU: I agree with them, my Lord.

COURT: Appeal dismissed with costs to the plaintiff, taxed at $3,000 per hour for 4 hours in the sum of $12,000. Although I dismiss the appeal, I find the preparation from Mr LAU is very helpful and I can follow the arguments easily because of the written submissions, and I thank both parties in preparing this appeal. I hope you will put an end to this lengthy case for nearly 10 years.

17. Good day to all of you.