DULCIE FAY TAKACH v. ADAM MARTIN TAKACH AND ANOTHER

IN THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

No 624 OF 1980

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RULING

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1. This is an application for review of a decision made by a Deputy Registrar on the taxation of the Petitioner's bill of costs, which were to be taxed in default of agreement on the upper scale pursuant to an order made on 14th February 1986. The application is made under Order 62 Rule 35 of the Rules of the Supreme Court.

2. In her bill the Petitioner claimed a sum of $9,000 in respect "of preparation for trial care and conduct" and the Deputy Registrar allowed this in the sum of $4,000 only.

3. The Petitioner subsequently lodged Notice of Objection to the disallowance on inter alia the following ground:-

"In our submission it is the present custom of Masters when hearing the taxation of bills in excess of HS$25,000 to allow rates for Solicitors in Matrimonial matters ranging from HK$450 to HK$700 per hour. "

4. The Deputy Registrar dismissed the application for review and subsequently delivered his reasons in writing.

5. The current practice as to taxation of costs of matrimonial proceedings in the District Court is that where the mount of the bill does not exceed $25,000 the taxing officer is the Registrar or a Deputy Registrar of the District Court and where the bill is over such an amount the taxing offficer is a Master of the Supreme Court. This practice has lead to inconsistency and hardship to a successful litigant as Masters are allowing higher hourly rates than the Registrar on Deputy Registrars.

6. In the present case the Petitioner claimed for the item under review at a rate of $450 per hour, but the Deputy Registrar allowed $200 per hour only. The item in question is covered by item No.6 of the District Court Civil Procedure (Costs) Rules which provides for a minimum fee on the upper scale of $150. No maximum is provided for.

7. Where a minimum fee is stated either in the District Court or High Court rules without a maximum, the fee to be allowed must be in the total unfettered discretion of the taxing officer. However, in exercising such discretion the taxing officer should have regard to all the revelent circumstances and in particular the matters referred to in Rule 62/A2/38 (White Book page 968).

8. In fixing the hourly rate in this case at $200 per hour the Deputy Registrar was influenced and guided by the ate allowed by the District Court rules for attendance at Court (Item 7) of $75 to $200 per hour. He reasoned there was very little difference between a solicitor preparing the case and attendance at Court prosecuting or defending and that the former should not attract a higher rate than the latter. We cannot agree with this approach.

9. A maximum fee stated in respect of one scale item cannot restrict the unfettered discretion of the taxing officer in respect of another scale item in respect of which no maximum has been fixed. If the legislation had intended otherwise then we consider a maximum would We boon fixed.

10. He also considered it to be relevent that the Family Court has concurrent jurisdiction with the High Court in matrimonial causes and accordingly there should not be a great difference in the discretionary hourly rates allowed to solicitors. If there were clients would be penalised for seeking the cheapest tribunal an a smaller percentage of their solicitor and own client discretionary costs would be recoverable from the other party.

11. Further a large disparity would encourage inflation of bills on the discretionary items as filed in order to take them beyond the jurisdiction of the Registrar or a Deputy Registrar. Disparity would also encourage applications for transfer to the High Court, upon which a solicitor would be entitled to bill and receive in excess of $1,000 per hour in respect of the discretionary items. In addition the client would also become responsible for Counsel's fees.

12. We consider the proper hourly rate at this present time to be allowed to solicitors in respect of discretionary items for matrimonial work transacted in the District Court to be in the range of $500 to $800 per hour. Anything less would be totally unrealistic from the point of view of the parties.

13. Accordingly the objection of the Petitioner is upheld and item No. 24 of her bill is allowed in the sum of 9,000 as originally claimed.

14. No order as to costs.