LAI SAU KING v. LAM CHARP FAT

IN THE COURT OF APPEAL

1995, No. 117
(Civil)

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D E C I S I O N

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Litton, V.-P. (giving the decision of the Court):

1. We dismissed this appeal with costs on a common fund basis on 25 October and expressed our concern then over the cost incurred in the production of the appeal bundles: some 1,200 pages of documents of which less than 10 were referred to at the hearing. At the conclusion of that hearing we exercised our jurisdiction under Order 62 r8 of the Rules of the Supreme Court and gave the solicitors for the appellant an opportunity to show cause why an order for cost ought not to be made against them personally in relation to the wasted expense incurred.

2. The solicitors have now appeared before us represented by counsel. They have also lodged an affidavit which shows that they were only first instructed on 12 September 1995, and the consultation with leading counsel did not take place until 14 October when leading counsel advised that, in effect, the appeal was virtually hopeless. However by that time the bundles had already been lodged in court.

3. Dealing with the matter objectively, it is plain that a great amount of cost has been wasted. We are however not satisfied that this is a case of such dereliction of duty as requires an order to be made under Order 62 r8. The solicitors have as a matter of sympathy towards their client told us that they waive their own charges in relation to the preparation of the bundles. To that extent therefore Mr Lam will be relieved of part of the costs involved.

4. We have however in dismissing the appeal made an order for costs against Mr Lam and that may involve him having to undertake part of the photo-copying charges incurred on the other side. In the circumstances of this case it would not be right to order the solicitors to bear those costs personally.