THE MAGWAY

HCAJ14/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.14 OF 1999

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Admiralty action in rem against: the ship or vessel "MAGWAY"

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JUDGMENT

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1. This is the gross sum assessment of the court's order I made on 5 May 2000 whereby I ordered that the plaintiff should pay the defendants the costs of the hearing of that day and the costs thrown away as a result of the order made to vacate the trial date. The trial was supposed to start on 16 May, lasting for 10 days.

2. I have put before me a fairly full schedule of costs by solicitors for the defendants. Basically it can be broken down into various categories. There is a category for counsel and a category for solicitors, which in turn was further broken down into the work relating to the 1st pre-trial review of 17 April, the 2nd pre-trial review on 5 May and work relating to interrogatories. There are number of matters which divide the parties.

3. I will first consider the matter in relation to what divides parties as to counsel's fees. The counsel's fees were sought in the total sum of $539,000, made up of Brief, Refreshers of counsel agreed on the special basis of the Vine Formula, Counsel's fees for rendering advice on collision damage apportionment and Counsel's fees for advising on and attending the hearing on 5 May. In my view, except for the counsel's fees in respect of their advising and attending for the 5 May hearing amounting to $45,000, the rest is not a matter that should be recoverable or which can be said to be costs thrown away wholly as a result of the trial being vacated. So far as refreshers are concerned, I think it is the duty of solicitors to agree refreshers on use basis. To my knowledge, no Taxing Master has ever allowed taxation on the basis of Vine Formula. In any event, in the exercise of my discretion, I do not think it would be right on the gross sum assessment to order as against the plaintiff more than the sum of $45,000 for the counsel's fees.

4. So far as solicitors are concerned, there are a number of disputes. The 1st dispute is that it is said that there are fees claimed in respect of the work done by Mr Apostolis who is a partner of Messrs Sinclaire Roche in England who has been admitted in England but not having been admitted in Hong Kong. He is a more senior solicitor, having been admitted in England in 1992, whereas Mr Toms, who is the assistant solicitor of the defendants firm, is admitted in England in 1995. Mr. Toms was admitted in Hong Kong in 1997 and, therefore, so far as Mr Toms is concerned, he can rightly seek taxation on the basis of his being a solicitor of three years' standing, and he asked that his fees to be paid at his hourly rate of $2,500 per hour.

5. The other dispute is in relation to duplication, that is to say, the defendants' solicitors should not put two lawyers both on the same piece of work. I notice that from the schedule, there are a large number of items where they were both taking part to do the same work, in attendiing conferences, in attending court and so on and so forth. I find there is considerable justification for that criticism. Then I think it is also said which I accept that there is a considerable amount of over-servicing.

6. Looking at the total bill and the nature of what had happened, it seems to me that there is considerable justification in the criticisms. Overall, having regard to what had happened, all the matters that had come before me and to be considered, in my view a generous figure to be given to the solicitors for the defendants in respect of solicitors' work would be in a total sum of $65,000. I, of course, having regard to what has been said about the interrogatories, would have not allowed for interrogatories.

7. The total figure that I arrive at on the gross sum assessment is $45,000 for counsel fees and $65,000 for the solicitors' costs, thereby making a total of $110,000, which is the gross sum I assess as being payable.

8. I also add to the above sum of $110,000, the sum of $5,000 for today's costs of two hours court hearing attendance and the total sum of gross sum assessment is therefore $115,000.