LTC v. DCL

FCMC 567/1978

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 567 OF 1978

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J U D G M E N T

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Application

1.  This is an application by the Respondent for a certificate for counsel in respect of 3 previous costs orders of the Family Court.

2.  Despite the fact that the parties were divorced long ago (the Decree Nisi was granted on 7 October 1978), I shall continue to refer to the Petitioner as “ the Husband” and the Respondent as “the Wife” for the sake of convenience.

Background

3.  In order to have a better understanding of the issues, I think it is necessary to recite some of the background of this case.

4. The parties married in 1968. They have one child born in the year of 1969 and who is therefore now 38 years of age.

5. The Husband petitioned for divorce and successfully obtained a decree nisi on 7 October 1978.

6.  Ancillary relief order was granted by consent in July 1979, which order was later varied in 1984 (“the AR Order”). In 1996, the Husband applied to stop or reduce his monthly payments under the AR Order on the ground that after his retirement as a medical officer of the Hong Kong Government, he was no longer able to support the lifestyle of the Wife.

7. The Wife was granted legal aid in 2001 for the purpose of defending the Husband’s application for variation. A firm of solicitors was assigned to act for the Wife together with the assignment of Mr. Neal Clough of counsel to represent the Wife in the proceedings. After a number of battles having been bitterly fought, the parties finally came to a settlement in May 2004 and the Legal Aid Certificate was subsequently discharged on 21 June 2006.      

8. Throughout the period when the Wife was on legal aid, there were a number of attendances by counsel before the Court. Among all those hearings, three costs orders were made by different judges which form the subject matter of the present applications. They are:

(1)  The order of Deputy Judge Levy dated 17 December 2001;

(2)  The order of Deputy Judge Hui dated 2 December 2002; and

(3)  The order of HH Judge Geiser dated 4 December 2003. 

9. Due to counsel’s inadvertence, certificate for counsel was not asked for in each of those 3 hearings and therefore no such certificate was granted. In Judge Geiser’s Order, counsel even failed to ask for legal aid taxation.

10. When the solicitors submitted their bill for taxation in the year of 2007, those omissions came to light and so they issued the present summons asking for legal aid taxation (for Judge Geiser’s Order) and a certificate for counsel.

The Issues

11. As one may immediately realise, all three relevant orders were granted and perfected quite a number of years ago by different judges other than by me. Therefore, the issues that I have to resolve today are as follows:

(1)  Whether I do have the jurisdiction to vary the costs orders despite the fact that they have already been sealed; and

(2)  If I do have the jurisdiction, whether I should exercise my discretion in favour of the Wife in granting the application.

Jurisdiction

12. Mr. Francis, appearing on behalf of the Wife argues that the Court should have power under O.20 r.11 of the Rules of High Court to correct its order under appropriate circumstances. This is often referred to as the “slip rule”, which provides:

“Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.”

13.  He further argues that the failure to ask for certificate for counsel or legal aid taxation in the costs orders was purely due to the inadvertence of counsel and such omission can be rectified by the slip rule.

14. As a matter of fact, a similar if not identical issue was considered in the Court of Appeal case of Winston Camera & Radio Co. Ltd v. Combi (Singapore) Pte Ltd [1988] 1 H.K.C. 156. In that case, the successful party has failed to apply for costs and interest before the perfection of the order. The Court of Appeal unanimously held that such a mistake deriving from the accidental slip or omission of counsel in failing to ask for relief consequential upon a judgment can be rectified under the slip rule.

15. The same conclusion was also reached in a more recent Court of Final Appeal case in Man Fong Hang v. Man Ping Nam and Another (FACV No.5 of 2006, Date of Judgment: 16 February 2007). Ribeiro PJ had the following to say at paragraphs 19-20 of the judgment:

 “19.  The “slip rule” powers exercisable under Order 20 r 11 are available to the Court….

20.   It is clear that the failure of the court’s original order to cover a particular matter as a result of an accidental omission of counsel or solicitors or the party is capable of being corrected under this rule: In re Inchcape[1942] 1 Ch 394, approved by the Privy Council in Tak Ming Co v Yee Sang Co [1973] 1 WLR 300 at 304 et seq. In the Court of Appeal, the rule has been applied in a case where there was an accidental omission to ask for costs and interest: Winston Camera & Radio Co Ltd v Combi (Singapore) Pte Ltd [1988] HKC 156. The correction can be made by the Court “at any time”, so the fact that correction is sought after the appellants had the order sealed is not an obstacle.”

16. Based on the above authorities, I am satisfied that this Court do have the necessary jurisdiction to deal with the present application. 

How to exercise the Court’s discretion

17. Given that I do have the power to grant the variation, the next issue is how I should exercise my discretion under the special circumstances of this case.

18. The requirement of a certificate for counsel stems from the fact that under O.62 Sch.1 Part II para.2(3) of the Rules of District Court, no costs shall be allowed for counsel’s attendance unless:

“(a) the Court has certified the attendance as being proper in the circumstances of the case; or

  (b) the amount recovered exceeds $150,000.”

19. Obviously, para.2 (3)(b) does not apply and so the Wife has to rely on para.2 (3)(a) and to argue that Counsel’s attendances on all those 3 hearings were proper in the circumstances of the case.

20. Unfortunately, the above order does not give further guidance in assessing what is being “proper in the circumstances”. Solicitors for the Wife has also failed to submit any authorities to assist the Court on how it should exercise its discretion in this regard.

21. Be that as it may, I think it can be safely assumed that counsel are generally more experienced in legal research and advocacy in court. The more complex a case or an issue is, the more justified for the engagement of counsel in giving advice or appearing in court on behalf of a party. Therefore, it is my view that one has to look at the complexity of the case or the issue in dispute to see whether the appearance of a counsel is proper or not.  

22. Bearing the above in mind, I will now proceed to consider the relevant orders in turn.

Order of Deputy Judge Levy dated 17 December 2001

23. This order was a result of the Wife’s application for an Attachment of Income Order (summons dated 17 August 2001 as at p.29-31 of the Hearing Bundle).

24. In the order, Deputy Judge Levy ordered a monthly sum of HK$36,193.33 to be attached from the monthly pension the Husband was then receiving from the Government.

25. In the 2^nd Affidavit of Wong dated 17 October 2007 (p.24-27 of the Hearing Bundle), solicitor for the Wife attempted to persuade this Court that attendance by counsel was justified “due to its complexity and the hearing lasted for two hours.” Unfortunately, that is the only justification advanced by the solicitor. There is no attempt to provide this Court with a transcript of the hearing. There is no evidence on what has been argued before the learned Deputy Judge. Mr. Wong did not appear before me to make submissions on why he felt the case was a complex one. There is even no indication on whether the solicitor himself was present at the hearing or not. I must say this is wholly unsatisfactory.

26. On the face of it, an attachment of income application is a rather straightforward matter, especially in the context of this particular case. The applicant basically has to prove 2 things in Court, namely the judgment debtor was in arrears of maintenance payment and he has an attachable income.  

27. There is no evidence that the Husband had ever denied he was in arrears of maintenance payment. It was also quite clear that the Husband was, and still is, a retired civil servant receiving a regular monthly pension. Simply I do not see there being any difficulty in obtaining an attachment of income order under those circumstances. Therefore, it is my view that a solicitor could have handled the application, instead of by a counsel.

28. After all, the order was made 6½ years ago. It would not be fair to require the Husband to shoulder the costs of the counsel now, which I believe would be substantially higher than the costs of a solicitor.

29. Under these circumstances, it is my view that this is not a proper case to grant a certificate for counsel for the hearing on 17 December 2001.

Order of Deputy Judge Hui dated 2 December 2002

30. On 2 December 2002, Deputy Judge Hui granted an order in the following terms:

  “UPON the application of the part of the Respondent by way of Summons dated 25^th November 20002 and UPON HEARING Counsel for the Respondent and the Solicitors for the Petitioner IT IS ORDERED THAT:-

1.        The Respondent’s Summons dated 25^th November 2002 be adjourned save that the Respondent’s own costs of the Orders specified hereunder and the costs of this summons be taxed in accordance with the Legal Aid Regulations.

(a)    The Order made by His Honour Judge Saunders dated 24^th July 2001;

(b)   The Order made by Deputy Judge Levy dated 31^st July 2001;

(c)    The Order made by Deputy Judge Levy dated 1^st August 2001;

(d)   The Order made by Deputy Judge Levy dated 11^th September 2001;

(e)    The Order made by Deputy Judge Jenkins dated 15^th April 2002; and

(f)     The Order made by Deputy Judge Hui dated 3^rd June 2002.

Dated the 2^nd day of December 2002.”

31. There are 3 important features in the above order:

(1)  First, there was no provision for inter-partes costs upon the adjournment of the summons.

(2)  Second, the main effect of Deputy Judge Hui’s Order was to grant Legal Aid Taxation for the Respondent’s own costs in this summons and Legal Aid Taxation for a total of 6 previous orders, out of which only 1 was Deputy Judge Hui’s own order. In other words, Deputy Judge Hui was exercising his discretion on costs in place of 3 other Judges of the Family Court.

(3)  Third, no certificate for counsel was asked for and therefore, no such certificate was granted by Deputy Judge Hui.

32. In order for me to consider whether a certificate for counsel should be granted in respect of the 7 hearings before 4 different judges which happened 6 years ago, I am faced with an impossible task because there is no evidence before me of what the issues were, or what has been argued or submitted to the Court at the hearings. I was not even informed of what those applications were about, not to mention to consider the complexity of those applications. 

33. The Wife’s application for a certificate for counsel in respect of Deputy Judge Hui’s Order dated 2 December 2002 must fail.

HH Judge Geiser’s Order dated 4 December 2003

34. As apparent from the order itself, by 4 December 2003, the Husband was in default of maintenance payment in the total sum of $2,487,539. The Wife came before Judge Geiser and successfully obtained a Prohibition Order prohibiting the Husband from leaving Hong Kong unless or until full payment of the arrears or the provision of sufficient security. Inter-partes costs of the application was granted to the Wife against the Husband. Again, counsel seems to have failed to ask for certificate for counsel. This time, counsel even failed to ask for Legal Aid Taxation despite the fact that the Wife was still on legal aid.

35. Although the hearing was conducted over 4 years ago, I am satisfied that this is a proper case for me to exercise my discretion to grant Legal Aid Taxation because the Wife was indeed on legal aid at the time and the granting of Legal Aid Taxation would not prejudice the interest of the Husband in any way.

36. However, the position on the granting of a counsel’s certificate may not be that straight forward. The seemingly large sum of arrears of periodical payment (which amounted to $2,487,539 at the time) must have been accumulated over a very long period of time, bearing in mind that the periodical payment order was only for about $30,000 or $40,000 per month (the variation was due to its automatic annual adjustment). As I can see from a table as appeared in p.38 of the Hearing Bundle, the accumulation started from May 1997, which was 6 years before the Prohibition Order. However, under s.12 of the Matrimonial Proceedings and Property Ordinance, Cap.192, the Wife was not entitled to enforce arrears of maintenance which were due more than 12 months without the special leave of the Court.There is no evidence before me that special leave for enforcement has been granted. Therefore, it may be doubtful whether the total arrears of $2,487,539 can be enforced by the Wife when it comes to execution.  

37. More importantly, the parties have settled all their disputes on 21September 2004 before another Judge (Deputy Judge Lo), with no order as to costs. That was supposed to put an end to all the parties’ disputes once and for all. If this Court, after 3 years of the parties’ settlement, shall grant a certificate for counsel in favour of the Wife, this will mean that the Husband’s liability for costs will increase substantially which was surely not within the parties’ contemplation at the time of settlement. This will be totally unfair to the Husband.

38. Under these circumstances, I have decided not to exercise my discretion in granting a certificate for counsel in favour of the Wife in respect of the hearing before HH Judge Geiser.

Conclusion

39. Based on the above reasons, I will grant the following orders:

(1)  There shall be Legal Aid Taxation for the Wife’s own costs in respect of her application for a Prohibition Order against the Husband resulting in an order being made by HH Judge Geiser on 4 December 2003.

(2)  Apart from the above order, all the other applications in the Wife’s summons dated 9 August 2007 be dismissed.

Costs

40. In the summons, the Wife asked for no order as to costs. I think this is an appropriate order for the costs of this application. Therefore, I will grant an order nisi that there shall be no order as to costs for this application, including all costs previously reserved. This order nisi will be made absolute upon the expiry of 14 days from the handing down of this judgment.