GUANGDONG FOODSTUFFS IMPORT & EXPORT (GROUP) CORPORATION AND ANOTHER v. TUNG FOOK CHINESE WINE (1982) CO. LTD. AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7759, 9547 AND 11061 OF 1995

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HCA 7759/95
HCA 9547/95

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Assessment of Damages

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1. This assessment of damages arises from the judgment of Cheung J. dated 19th November 1998.

THE PARTIES

(1) Guangdong Foodstuffs Import & Export (Group) Corporation ("GDF")

2. GDF is a state owned corporation established in 1954 under the Laws of the People's Republic of China ("the Mainland"). It's principal place of business is in Guangzhou. GDF has for many years carried on business in the export of foodstuffs produced in the Guangdong Province in the Mainland.

(2) Yau Shing Hong Provisions Limited ("Yau Shing Hong")

3. Yau Shing Hong is a Hong Kong company and has been the distributor in Hong Kong of GDF's Pearl River Bridge Super Mellow Mijiu and Shiwan Mijiu since February 1995.

(3) Tung Fook Chinese Wine (1982) Co. Ltd. ("Tung Fook (1982)")

4. Tung Fook (1982) is a Hong Kong company incorporated in 1982. It was the distributor in Hong Kong of GDF's Pearl River Bridge Super Mellow Mijiu from 1982 to January 1995. Since January 1995, Tung Fook (1982) has distributed in Hong Kong the Zu Miao (祖廟) Super Mellow Mijiu which was the subject of complaint by GDF in these proceedings.

(4) Shiwan Brewery of Foshan City in Guangdong Province ("Shiwan Brewery")

5. Shiwan Brewery is a state owned distillery and a maker of rice wine in Shiwan Town, Foshan, Guangdong Province. Before 1995, it produced for GDF the Pearl River Bridge Super Mellow Mijiu and Shiwan Mijiu. Since 1995, it produced for export to Hong Kong the Zu Miao Super Mellow Mijiu and Shiwan Mijiu.

(5) China Resources Advertising & Exhibition Company Limited ("CRA")

6. CRA is a Hong Kong company carrying on business as an advertising agent and designer in advertising.

(6) Chung Tai Wine & Spirit Company Limited ("Chung Tai")

7. Chung Tai and its predecessor were the distributors in Hong Kong of GDF's Pearl River Bridge Shiwan Mijiu.

(7) Foshan Foods Import & Export Company of Guangdong ("Foshan Foods")

8. Foshan Foods was not a party in the actions. However it played a major role in the disputes. It is a state owned enterprises based in Foshan. Foshan Foods was the sub-branch company of GDF from 1961 to 1994.

9. The notice of appointment of assessment of damages was issued on 9th June 1999.

10. At the assessment of damages GDF and Yau Shing Hong were represented by Mr. Osmand Lam, CRA by Mr. Jerry Jim, while Tung Fook (l982), Shiwan Brewery and Chung Tai were unrepresented.

11. At the assessment, the plaintiffs and CRA reached a settlement on the claim under paragraph 10 of the Judgment for damages for breach of trust, breach of fiduciary duty and breach of contract.

12. The assessment of damages was heard as it related to Tung Fook (1982), Shiwan Brewery and Chung Tai.

13. Mr. Lam made submissions at the assessment.

14. As to the background of the case I will set out here the Introduction from Cheung J's judgment -

INTRODUCTION

15. These actions are concerned with the intellectual property rights of two rice wine, namely, Super Mellow Mijiu (特醇米酒) and Shiwan Mijiu (石灣米酒). The main cause of action of the Plaintiffs is that of passing off. The other disputes between the parties are concerned with a registered trade mark (TM. No. 02010/95) in respect of the pictorial part of a label used for the Super Mellow Mijiu, the copyright of the labels of the two wine, injurious falsehood and unlawful interference with business and contractual relationships.

CAUSE OF DISPUTE

16. The Plaintiffs' case is that from 1974 to 1975, GDF started to sell in Hong Kong, through its Hong Kong distributor, the Pearl River Bridge Shiwan Mijiu. Starting from 1979, GDF had been selling through its local distributor the Pearl River Bridge Super Mellow Mijiu. The wines were produced by the Shiwan Brewery. They were exported to Hong Kong by Foshan Foods for and on behalf of GDF.

17. In January 1995, Tung Fook (1982) and Chung Tai introduced for sale in Hong Kong the Zu Miao brand of Super Mellow Mijiu and the Shiwan Mijiu. The wine were produced by Shiwan Brewery and supplied by Foshan Foods. This led to the dispute between the parties.

18. The claims of the plaintiffs are in relation to two rice wines, Super Mellow Mijiu and Shiwan Mijiu. All the claims and reliefs were granted to the plaintiffs by Cheung J. after trial. His Lordship's judgment of 19th November 1998 sets out clearly what the plaintiffs are entitled to.

As to Super Mellow Mijiu:

19. Under paragraph 3 of the judgment, GDF is entitled to damages for passing off against Tung Fook (1982) and Shiwan Brewery. Yau Shing Hong is entitled to the loss of four months' sales figures between July 1995 and October 1995 for the sum of $103,063.00. Such sum falls to be awarded to Yau Shing Hong under pages 43-48 and 141-150 of the Reason for Judgment handed down on 29th October 1998.

20. Under paragraph 13 of the judgment, GDF is also entitled to damages for breach of copyright, including additional damages and damages for conversion against Tung Fook (1982).

21. Under paragraph 10 of the judgment, GDF is further entitled to damages for breach of trust, breach of fiduciary duty and breach of contract against CRA (which was settled at the assessment) and damages for inducement or procurement by Tung Fook (1982) of breach of trust, breach of fiduciary duty and breach of contract on the part of CRA.

As to Shiwan Mijiu -

22. Under paragraph 12 of the Judgment, GDF is entitled to damages for passing off against Shiwan Brewery and/or Chung Tai.

Under paragraph 22 of the Judgment, GDF is further entitled to damages for copyright infringement including additional damages against Shiwan Brewery and/or Chung Tai.

23. Under paragraph 26 of the Judgment, both GDF and Yau Shing Hong are entitled to damages for trade libel against Tung Fook (1982) and Shiwan Brewery.

EVIDENCE

Super Mellow Mijiu

24. As to the evidence before me, at page 87-88 of the Bundle is a summary of the Sales Record of Super Mellow Mijiu with all the invoices discovered and suppplied by Tung Fook (1982), being a summary of the Total Sales Record at pages 91-139 of the Bundle between March 1995 and November 1998.

25. At pages 142-148 of the Bundle, is a summary of the total profits for Super Mellow Mijiu claimed by the Plaintiffs for passing off. The total sum of $2,101,778.35 is claimed in the Amended Schedule of Damages.

Shiwan Mijiu

26. With regard to Shiwan Mijiu , at pages 465-466 the amended Sales Record reflects the summary of Sale Records at pages 155-452. Between pages 455-462 of the Bundle is found the summary of the total profits of Shiwan Mijiu between February 1995 to November 1998. GDF is claiming the sum of $3,167,191,813 for loss of profits in relation to the damages for passing off.

27. The evidence before me is based on the affirmations filed by Chung Tai and Tung Fook (1982) in relation to their invoices for sales of both rice wines between March 1995 and November 1998. The plaintiffs do not challenge that evidence. The charts and summaries as calculated by the plaintiffs' legal advisers are based entirely upon the evidence as disclosed by Chung Tai and Tung Fook (1982) under the Order of Cheung J. The charts and figures were supplied to all the parties, seeking their comments, and no challenge has been made.

LAW

28. As to the legal position in relation to the bases for the damages claimed under the Amended Schedule of Damages.

PASSING OFF

29. The plaintiffs' claim damages for passing off or, at their own option, an account for profits in relation to the two rice wines. The claim for an account of profits is open to the Plaintiffs and they wish to pursue this option in this case.

30. The plaintiffs rely on the statement of the law found in The Law of Intellectual and Industrial Property in Hong Kong by Pendleton, Garland & Margolis, at para 1101, Section I 204, where it is said that "..Damages may reflect the nature of the damage to property in terms of loss of profits, dilution in value of reputation or opportunity to charge a license fee." In Drysdale & Silverleaf's Passing Off Law and Practice, 2nd Ed., Chapter 7, 7.54 at page 194, it is stated that

"Authorities on the extent to which profits are recoverable are extremely rare. However, it is clear that in contrast to the enquiry as to damages, the court is not concerned with the effect which the defendant's activities have had on the plaintiff but merely with the profit which the defendant has made from them. Thus, the plaintiff will be entitled to an account of the profits made from all sales which fall within the scope of the injunction, whether or not he has suffered any loss thereby. It follows that, where the plaintiff's complaint is the selling of deceptively marked goods to middlemen who are not themselves deceived, the defendant will be obliged to account for the profits on all such sales, irrespective of how the goods were subsequently dealt with. Further the profits for which the defendant must account are the totality of those derived from the carrying on of the wrongful activity and not merely the additional profit attributable to the passing off."

31. In McGregor on Damages, 16th Ed., at paragraphs 1947-1948, at pages 1261-1262, it is said that

"Little attention has been given to the assessment of damages despite the many cases of passing off in the reports. Spalding v. Gamage and Draper v. Trist are the only cases of importance. The principal head of damage is the loss of business profits caused by the diversion of the plaintiff's customers to the defendant as a result of the defendant's misrepresentation; beyond this, damages may be awarded for any loss of business goodwill and reputation resulting from the passing off. Damages under both these heads were held to be properly awarded in Spalding v. Gamage, (1918) 35 RPC 101, C.A. a result which has never since been doubted. Draper v. Trist (1939) 3 All E.R. 513, C.A. dealt with a more complex situation where the defendant had passed off goods by selling them to middlemen, and there was no evidence that the middlemen resold. In these circumstances it was held that the plaintiff's loss of profits could not be a relevant consideration in assessing the loss but that the plaintiff was entitled to damages by reason of the presence of the deceptive goods on the market, damages which included a sum for loss of reputation. Also, the plaintiff should be able to recover for further loss of profits through reduction of his prices, provided that the reduction is necessary to compete with the goods passed off by the defendant."

32. The principal head of damages are the loss of business profits caused by the diversion of the Plaintiffs' customers to the Defendant as a result of the Defendant's passing off. GDF is entitled to and claims the total profits of the two rice wines Super Mellow Mijiu and Shiwan Mijiu in the sums of $2,101,778.35 and $3,167,191,813 respectively, with interest upon those sums, and I am satisfied that such an award should be made in relation to the two rice wines under this head of damage.

COPYRIGHT, ADDITIONAL DAMAGES AND CONVERSION

33. As regards Super Mellow Mijiu, GDF is entitled to damages for copyright, including additional damages, together with damages in conversion under section 18 of the Copyright Act 1956, together with interest, as against Tung Fook (1982).

34. Authority for this claim can be found in the case of Oriental Press Group Ltd. v. Apple Daily Ltd. In the Court of Appeal judgment, (1997) 2 HKC 515, (CA), at headnote (5) it is said that

"A copyright owner was entitled to compensation respectively under ss 17 and 18 of the Copyright Act for two distinct and different injuries. There was no overlap between compensation for the unlawful use of copyright awarded under s 17 and compensation for conversion under 18. It was only where damages were awarded respectively under the two sections with each containing an element of compensation for the same thing that there could be duplication." In the Court of Final Appeal judgment, (1998) 4 HKC 131, it is stated at headnote (1) that "Sections 17 and 18 of the Copyright Act l956 gave cumulative, not alternative remedies, but they should be applied so as to avoid double damages for substantially the same loss."

35. In the case of PBI Publications (HK) Ltd. v. Marks Hundred Co. Ltd. (1987) 2 HKC 157, at headnote (3) it is said that

"Damages could still be assessed on the basis of a licence fee even when there was no evidence that the copyright owner would be willing to grant the defendant a licence to use the article in question."

36. The case of Kemp v. Sing Pao Newspaper & Publications Ltd. (l994) 3 HKC 244, at headnote (4) and (5) state that

"(4) Where the owner of the copyright was in the habit of granting licences for use of his copyright, his normal royalty fee or a 'fair fee' would be taken as a starting point for the assessment of damages. (5) On the other hand, where he did not grant licences, or did not market his copyright in the same way as the infringer, the court was left to make a crude assessment of the harm caused by the infringement. The court might assess a reasonable royalty or assess the cost of obtaining a similar work elsewhere. Frequently, the court would award a lump sum by way of damages at large without explaining the manner in which the sum was assessed."

37. Infabrics v. Jaytex (l982) AC l, at headnote (3) states

"That if a plaintiff failed to establish infringement he had no independent cause of action in conversion for the terms of sections l7 and l8 of the Act demonstrated that conversion was a remedy alternative to, or (to some extent) cumulative with, the remedy of damages for infringement and depended on proof of infringement....".

38. As to the additional damages. In Ozen Corp v. Takmay Industrial Co. Ltd. (l994) AIPR 298, it is said at headnote (2) that

"The defendants' conduct in delaying the case and frustrating the legitimate claims of the plaintiffs, and the flagrancy of the infringement, justified an award of substantial additional damages."

39. In The Law of Intellectual and Industrial Property in Hong Kong, by Pendleton, Garland & Margolis, part IV, at para. 928, there is consideration of the award of additional damages under section l08(2). It is stated that with regard to damages, the court must take into account (a) the flagrancy of the infringement, (b) any particular benefit accruing to the defendant, (c) the completeness, accuracy and reliability of the defendant's business accounts and records. Reference is made to Ozen Corp v. Takmay Industrial Co. Ltd. and it is said that

"In finding that the defendants' conduct justified an award of additional damages under section 17(3), Mayo J. held that: "The defendants' conduct has been most reprehensible. They have done everything in their power to delay this case and frustrate the plaintiffs' legitimate claims. They have resorted to lies and deceptions. The infringement was a flagrant one and this, in my view, justifies and award of substantial additional damages. I propose adhering to the practice...of leaving to the Master the assessment of the appropriate amount of the award under this head."

40. As to damages in conversion, At Part IV, para. 929-950, the authors refers to the abolishment of the possibility of conversion damages in section 18 of the 1956 Act, which were based on a hypothetical calculation of the infringing goods' value, noting that section 18 still applied in legal actions instituted before the new Ordinance came into force and in future actions which relate to infringements which occurred before 27th June 1997. In paras. 951-954, there is a reference to the Infabrics case, and in particular to the point that section 18 was "designed to provide a remedy for infringement of copyright, alternative to, or to some extent cumulative with, the remedy of damages for infringement, and the availability of such damages depended on proof of infringement." The plaintiffs here have clearly proved infringement. In para. 955, it is said "Even when infringement is proved, the section 18 remedy could be draconian although perhaps no more so than the often lauded treble damages available under US law. The measure of damages is the market value of the goods, not the market value less the cost price of the goods, ie, the profit earned on the sale of the goods. Hence, the remedy sometimes led to extreme and indiscriminate results." The authors quote the example cited in the Infabrics case, where the goods contain gold - "Their Lordships illustrated this point in drawing attention to situations where the substrate of the infringing goods might be composed of some precious metal, say gold. In these circumstances, the measure of damages under section 18 would have been the full market value of the goods, not the market value of the goods minus the value of the gold as it would normally be under section 17."

41. In paras. 956-175, there is a reference to the case the Oriental Press v. Apple Daily case, and the authors comment that

"the Hong Kong Court of Final Appeal, in its first copyright decision, interpreted the provisions on copyright infringement damages in the UK Copyright Act 1956. The court held that such damages should be assessed by taking into consideration the identities of the actual parties, and the strengths and weaknesses of their particular bargaining positions .... Three of the five CFA judges indicated, however, that such an assessment based on the notion of a hypothetical willing licensor and willing licensee would not apply where the plaintiff, acting reasonably, would not have granted a licence to the defendant at any price. The court's reasoning would appear also to apply to copyright damages claimed under the present Copyright Ordinance. It should also be noted that section 108(2) of the present Ordinance specifically empowers the court to award additional damages based on the flagrancy of the copyright infringement."

42. Laddie, Prescott & Vitoria on The Modern Law of Copyright, 1st Ed, Chapter 12.24-12.26, 12.28, 12.41-12.45 contains a detailed consideration of these topics.

43. In this case, the Plaintiffs are not in the business of granting licences or exclusive licences to any other trader or in any way promoting the copyrights infringed. The traditional approach of the starting point of normal royalty figure may not be appropriate here. However, I have the option, if I wish, to assess a figure of "what a reasonable royalty would have been or what would have been the cost of obtaining similar work elsewhere." - see chapter 12.25 of Laddie. Failing that, then there is the option of nominal damages for copyright infringement.

44. As far as the additional damages are concerned, I must take into account - (a) the flagrancy of the infringement; (b) any particular benefit accruing to the defendant; (c) the completeness, accuracy and reliability of the defendant's business accounts and records. Counsel for the Plaintiffs submitted that there are no authorities to assist me in assessing additional damages, since mostly damages are settled. In this case, the Plaintiffs own people turned their back on them and made products. Cheung J. awarded additional damages to show the court's disapproval. The difficulty is that the plaintiffs do not grant licences and there is no normal royalty fee for the assessment of the damages, but Counsel went on to submit that the Plaintiffs seek a nominal fee, say a premium of 200%, may be tens of thousands of dollars.

45. Cheung J. did not believe the evidence put forward by Tung Gook (1982), CRA, Chung Tai and Shiwan Brewery. In effect, the learned Judge found their evidence incredible. The defendants were clearly aware of the copyright of the Plaintiff, especially when CRA's predecessor had designed the label of the Super Mellow Mijiu, Shiwan Brewery produced the two rice wines for GDF, Tung Fook (1982) was the distributor for GDF's Super Mellow Mijiu and Chung Tai and its predecessor were the distributors of GDF's Shiwan Mijiu before 1995. There must have been flagrant and blatant infringement and disregard of the Plaintiff's rights, bearing in mind the close relationship between the parties. Counsel urged the court for copyright damages in a nominal sum to show the court's disapproval in the face of this flagrant and blatant disregard of the Plaintiffs' rights.

46. Cheung J. also found evidence of malice in relation to the trade libel. The defendants' behaviour was calculated and deliberate and specifically designed to usurp the intellectual property rights of the Plaintiffs. In echoing the words of Mr. Justice Mayo (as he then was), the conduct of the parties involved here were reprehensible and they did everything possible to frustrate and undermine the Plaintiffs legitimate claims. Their conduct was flagrant and justifies an award of substantial additional damages.

47. In relation to conversion damages, the measure is the market value of the goods, not the market value less the cost price of the goods, that is, the profit earned on the sale of the goods. As a result, GDF is entitled to the full market value of the Super Mellow Mijiu sold from March 1995 to 27th June 1997 against Tung Fook (1982). Counsel submitted that the defendant took what was owned by the Plaintiffs and sold it. If the defendant had not done that, then the goods would have been sold by the Plaintiffs, as set out in the summary at pages 87 to 88 of the bundle (but only up to 27th June 1997), being $7,456,426.70.

48. Counsel submitted that in the Oriental Press Group case, at page 523B, Mr. Justice Rogers (as he then was) said that there was no overlapping between the damages for copyright infringement and damages for conversion so long as there was no duplication in the damages. In this case, there is no duplication from the two heads of damages.

49. As far as Shiwan Mijiu is concerned, GDF is only entitled to damages for copyright infringement and additional damages. Similar considerations apply to Super Mellow Mijiu. GDF is entitled to and claims under both heads of damages.

50. In the Infabrics case, Lord Scarman says that

"A more troublesome point on section 18 is the measure of damages. In cases, like the present, of industrial design, damages for infringement under section 17 are often small. Limited (in the absence of special circumstances) to the depreciation in value of the copyright, they can be minimal. In the present case of Infabrics paid only a few pounds for the design. But damages for conversion can be very great. If the industrial application of the infringing copy is a success, damages are recoverable as if the owner of the copyright was the owner of every infringing copy sold: section 18(1). And what if the infringing copy be engraved upon a silver chalice or a gold medallion? The language of the subsection is, I think, clear: it bestows upon the owner of the copyright the rights and remedies to which at common law an owner of goods is entitled for their conversion. It treats the owner of the copyright as if he were the owner of the infringing copies. Since at common law the damages for conversion are ordinarily measured by reference to the value of the goods converted, I would not think it legitimate to construe the subsection otherwise, though the result will be injustice in some cases. If the possibility of excessive damages is to be eliminated, legislation is needed: for the language of the subsection permits of no other construction."

AWARD

51. As to damages for Super Mellow Mijiu's claim. It is clear from the cases that the plaintiff is entitled to damages for infringement of the copyright and for conversion, that while these remedies are cumulative, there must be an avoidance of double damages for substantially the same loss. In this case, the plaintiff has adduced evidence that it has suffered loss in the sum of $7,456,425.70, and seeks damages in conversion for that sum. As the case law shows, I am left with the unenviable task of making a 'crude assessment' in relation to damages for infringement and additional damages, since the plaintiff was not in the practice of granting a licences and the traditional approach of using the normal royalty figure is not appropriate. I am left with the issue of what a reasonable royalty would have cost the infringers in obtaining similar products elsewhere or the option of an award of nominal damages. Unfortunately, there are no precedents to guide me and I must do my best to fix a figure that is appropriate to the circumstances of this case, including the harm caused by the infringement. In reaching a figure I should avoid duplication. In these circumstances, I am of the view that the appropriate award in damages in this case is $7,456,426.70 for damages in conversion with only a nominal award of $250,000 for infringement of the copyright and $100,000 additional damages to show the court's disapproval of the defendant's actions in this case.

52. As to damages for Shiwan Mijiu's claim. The amended monthly sales record of Shiwan Meiji from 24/2/95 to 3/11/98 is $7,770,017.30. I refer back to Kemp where it is said where the owner of the copyright did not grant licenses, or did not market his copyright in the same way as the infringer, the court is left to make a crude assessment of the harm caused. While I have no evidence of a royalty fee upon which to base the damages, it is clear that if the infringer had not marketed the wines as it did, the owner of the copyright would have, and that I should base the damages on some proportion of the sales effected by the infringer. On those grounds, and on what can only be a crude assessment, I make an award in the sum of $1,500,000 damages for infringement of the copyright and a further sum of $500,000 as additional damages.

Inducement or procurement of breach of trust, breach of fiduciary duty and breach of contract

53. GDF is entitled to damages for inducement or procurement of breach of trust, breach of fiduciary duty and breach of contract against Tung Fook (1982).

54. In this regard, McGregor on Damages at paragraphs 1930ff, refers to the tort of inducement of breach of contract,

"which makes actionable the inducing by the defendant, intentionally and without lawful justification, of any person to break any contract made by him with the plaintiff, if the plaintiff is thereby damaged. Although damage is the gist of the action, little exact detail can be given as to the measure of damages, as the courts have consistently endorsed Lord Esher M.R.'s pronouncement in Exchange Telegraph Co. v. Gregory that 'it is not necessary to give proof of specific damage' because 'the damages are damages at large. Nevile J. in Goldsoll v. Goldman stated the position in somewhat more detail. 'The damage,' he said, 'may be inferred, that is to say, that if the breach which has been procured by the defendant has been such as must in the ordinary course of business inflict damage upon the plaintiff, then the plaintiff may succeed without proof of any particular damage which has been occasioned him.' The type of damage that is likely to be inferred by the court is loss of profits. This may be the profit that the plaintiff would have made on the contract the breach of which the defendant has induced. Alternatively, it may be the profit that the plaintiff is prevented from making on other contracts."

55. Damages are said to be at large and it is not necessary to give proof of specific damage. The obvious type of damage under this head is that of loss of profits. Alternatively, it may be the profit that the plaintiffs were prevented from making. Being the profits, then there were other expenses as a result of the action of Tung Fook (1982). The plaintiffs are already claiming and are entitled to the total profits of Tung Fook (1982) in relation to its passing off action for Super Mellow Mijiu and for Shiwan Mijiu. Thus, to claim would be a double benefit. There is still the discretion to award damages at large to the plaintiffs under this head.

56. Counsel submitted that although paragraph 10(2) of Cheung J's order relates to the inducement or procurement of the three categories together (breach of trust, fiduciary duty and contract), they should be examined separately, and a lump sum should be awarded for the damages under the three heads. The damages under this head should not be looked at as loss of profits only. Damages are at large. The claim against CRA was settled at $800,000 for the breach of trust in the three categories.

57. I am satisfied that it would not be appropriate to award damages in regard to this claim, since there would clearly be a double benefit to the plaintiffs.

Trade Libel

58. As to trade libel, the plaintiffs are not pursuing this head of damages against Tung Fook (1982) or Shiwan Brewery.

Interest and Costs

59. Interest shall be paid on the damages awarded at judgment rate from the date of judgment until payment.

60. Costs of the assessment to the plaintiffs together with certificate for counsel, to be taxed if not agreed.