Beyonics Technology Ltd and Another v. Goh Chan Peng and Others

CACV 244/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2014

(ON APPEAL FROM HCMP NO 1840 OF 2013)

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DECISION
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Hon Chu JA (giving the Decision of the Court):

Introduction

1.By our Decision dated 13 October 2015, we allowed the application of the 1^st, 3^rd and 4^th defendants (collectively “the defendants”) to vary the costs order nisi made on 12 August 2015, and ordered that the costs of this appeal and of the application for leave to appeal in HCMP 3006/2014 to be paid by the plaintiffs to the defendants to be assessed summarily. 

2.Pursuant to our directions, the defendants have submitted a statement of costs, and the plaintiff has also submitted a statement of objection.

3.The order dated 4 December 2014 made in HCMP 3006/2014 has provided for the costs of the application for leave to appeal made to the Judge below to be costs in the cause of the appeal, our order for summary assessment of costs will include the costs of the leave application made in the court below.  Although our order for summary assessment of costs does not extend to the costs of the application for stay of execution of the discovery order made to the Judge below, since the application was heard together with the leave application, and the plaintiffs have no objection to the costs being summarily assessed as well, we shall also deal with them in this summary assessment.  

4.In assessing the defendants’ costs, we bear in mind that they are to be taxed on party and party basis such that all costs that are necessary or proper for the attainment of justice or for enforcing or defending the rights of the defendants shall be allowed.

5.We also bear in mind that the proceedings involved had a short duration, commencing on or after 12 November 2014 and concluding on 27 January 2015, and the papers and issues are substantially the same as those in the action below.

6.We set out below our determinations on the objections taken by the plaintiff.

Part A: Hourly rates

7.The hourly rates claimed for the three qualified fee earners, JK, PS and BN, whose years of admission in Hong Kong are 1992, 2005 and 2013, are $7,200, $5,200 and $3,100 respectively.  They are much higher than the rates usually allowed in inter-partes taxation.  There are no special circumstances, such as the exercise of special skills or assumption of unusual responsibility, that justify adopting such high rates.  Additionally in the case of PS, although he was previously admitted in another jurisdiction, what is more important in determining his hourly rate is his experience and years of post-admission practice in Hong Kong.  We allow the hourly rates of JK, PS and BN at $4,200, $3,800 and $2,500 respectively.

8.Similarly, we reduce the hourly rate of the legal executive from $2,100 to $1,200.

Part C: Communications

9.Under attendance on client (item C1), the three qualified fee earners together claimed a total of 10.8 hours.  In light of the short duration of the proceedings in question, the time spent by PS (8.4 hours) is excessive on party and party basis, and is reduced to 6 hours.

10.Under attendance with counsel (item C3), the total time claimed for the qualified fee earners is 9.6 hours.  Bearing in mind the short duration of the proceedings and since the papers and issues in the appeal are substantially the same as those in the court below, the time incurred by PS (9.2 hours) is not justified on party and party basis.  We reduce it to 6 hours.

11.The plaintiff also takes issue with the time spent on attending on the court (item C4, 6.2 hours in total).  Considering the number of applications made prior to the appeal and the correspondence with the court, we cannot say that the time incurred is excessive. 

Part D: Professional work

12.A total of 24.95 hours was spent by the two qualified earners for preparation of documents (item D1).  This is excessive having regard to the volume of documents leading the leave/ stay of execution applications and the appeal, which are not voluminous, and that counsel had been engaged throughout.  There is likely to be some duplication in the work of PS and BN.  We reduce the time of PS (15.85 hours) and BN (9.1 hours) to 12 hours and 6 hours respectively.

13.We do not agree with the plaintiff that the 6.8 hours claimed by PS for perusal of documents (item D2) is excessive time.

14.For the appeal hearing on 27 January 2015, each of the three qualified earners charges 2.5 hours for preparation and attendance (item D5).  Given on party and party taxation usually only one fee earner is allowed for each item and there are unusual features relating to the appeal, we only allow JK’s fee.   

15.In respect of the 8 hours incurred by BN on legal research (item D6), this is excessive as counsel have been involved in the proceedings.  We reduce it to 5 hours.

Part E: Disbursements

16.The plaintiff contends that counsel fees for the leave/ stay of execution applications and the appeal (items E1 to E3) are excessive. Applying the test of what a hypothetical counsel capable of conducting the applications/ appeal effectively will demand, and considering the issues involved, we do not agree this is a valid objection.

Conclusion

17.In conclusion, the defendants’ costs are assessed summarily at HK$381,228, the breakdown of which is set out the Annex to this Decision.

Hart Giles for the plaintiffs

Deacons, for the 1^st, 3^rd and 4^th defendants

Annex: Breakdown of the defendants’ costs assessed summarily