Chiu Man Fu and Others v. Chiu Chung Kwan Ying

HCAP 9/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 9 OF 2005

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IN THE MATTER OF CHIU YAU CHUEN (招友全),
late of Flat B, 9^th Floor, Block 1, Estoril Court, 55 Garden Road,
Hong Kong, merchant, deceased.

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REVIEW OF TAXATION

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1.The defendant commenced the taxation against the plaintiffs by filing a bill of costs pursuant to the judgment of Hon Poon J (as he then was) in court dated 31 January 2012. The bill was amended on 22 September 2014 and re-amended on 2 February 2015.

2.According to the letter from the Director of Legal Aid dated 30 January 2014, as legal aid certificates were granted to the plaintiffs at the material times, the Director of Legal Aid had a financial interest in the outcome of the taxation of the defendant's bill and intended to take part in the taxation on behalf of the plaintiffs.  Therefore, a List of Objections, Supplemental List of Objections and Consolidated List of Objections were filed by the Director of Legal Aid on 28 March 2014, 20 October 2014 and 9 January 2015 respectively.

3.The taxation was fixed with 8 days reserved starting from 7 October 2015.  As reported in the letter from the defendant's solicitors to the court dated 18 September 2015, the Director of Legal Aid and the defendant had reached agreement on certain items in the bill and enclosed a Table of Agreed and Disputed Items dated 17 September 2015 for my approval.  During the taxation hearings held from 8 to 15 October 2015, Ms Chan SLCII/Costing of the Director of Legal Aid ("Ms Chan") and Mr Yung the law costs draftsman for the defendant ("Mr Yung") kept agreeing some other items in the bill and submitted altogether 5 Tables of Agreed Figures all signed by Ms Chan and Mr Yung.  I approved the parties' agreement as set out in the Tables of Agreed Figures at the taxation hearings on divers dates.  Eventually, the taxation lasted until 15 October 2015.

4.The Director of Legal Aid took out this application for review of my decision in respect of item 54 of the bill, namely $5 million being the brief fee of the Senior Counsel engaged by the defendant ("D's Senior Counsel") at the trial.  Under item 232 of the List of Objections, the Director of Legal Aid objected to this item on the ground of excessiveness and suggested $900,000.  At the hearing on 9 October 2015, I allowed $3 million for this item after the parties' submissions.

5.Later, at the hearing on 13 October 2015, Ms Chan and Mr Yung reached an agreement to settle the fees of the D's Senior Counsel in the total sum of $5,237,000 and tendered a Table of Agreed Figures dated 13 October 2015 signed by Ms Chan and Mr Yung for my approval.

6.According to the transcript, Mr Yung clarified at least twice that such sum included the brief fee of the D's Senior Counsel whilst Ms Chan did not contend otherwise.  In the Table of Agreed Figures dated 13 October 2015, it was stated, inter alia, "212-213, 216, 220, 232, 236, 242, 244-247, 252, 254, 255-257" under the column of "Objection No.", "5,237,000" under the column of "Proposed allowed figures" and "Less 5,363,000" under the column of "Proposed taxed off figures". I therefore approved the Table of Agreed Figures at the hearing on 13 October 2015.

7.In the written submission, Mrs Hadiwibawa for the Director of Legal Aid  tried to explain how Ms Chan negotiated with Mr Yung outside the court on 13 October 2015 and how the figure of $5,237,000 was reached.

8.To start with, I doubt very much if Mrs Hadiwibawa should disclose such out of court negotiation between the parties' representatives to me without the consent of the defendant since such negotiation must be made on an entirely without prejudice basis.  Indeed, the taxing master is usually not interested to know how the agreed figures were reached especially when the parties are legally represented.

9.Mrs Hadiwibawa also submitted that in approving the Table of Agreed Figures dated 13 October 2015, I had not set aside my ruling made regarding the brief fee.  With respect, I disagree and cannot see any reason why I need to specifically set aside my ruling regarding the brief fee.  It always happens that in the middle of the taxation proceedings after the taxing master has made some rulings over certain items in the bill, the parties suddenly come up to a global settlement of a particular part or section of the bill or even the entire bill.  I fail to see why it is necessary for the taxing master to set aside his earlier rulings before approving the settlement.

10.On the other hand, I accept the submission of Mr Lam for the defendant that my approval of the Table of Agreed Figures dated 13 October 2015 has in effect superseded my ruling regarding the brief fee.

11.In my view, had Ms Chan for the Director of Legal Aid only intended to settle the fees of the D's Senior Counsel except the brief fee and the sum agreed to be was $2,237,000 only, she could simply delete the word "232" under the column of "Objection No." and put the figure of "2,237,000" under the column of "Proposed allowed figures" in the Table of Agreed Figures dated 13 October 2015.  My interpretation and understanding is that the Director of Legal Aid agreed to pay whilst the defendant agreed to accept the sum of $5,237,000 in full settlement of the items in the bill which are objected by the Objection No. 212-213, 216, 220, 232, 236, 242, 244-247, 252, 254, 255-257.  In other words, I consider that the effect of the parties' compromise is to put an end to the disputes in respect of all fees of the D's Senior Counsel including the brief fee and that the Director of Legal Aid is not entitled to reopen any dispute over any item therein.

11.If I agree with Mrs Hadiwibawa to review my ruling regarding the brief fee and further tax down the same, the effect of the review is to vary the parties' compromise as set out in the Table of Agreed Figures dated 13 October 2015 which had already been approved by me.  Mr Lam for the defendant submitted, which I agree, that the result is absurd.

12.In the circumstances, the Director of Legal Aid's application for review must be dismissed.  I see no reason why the costs shall not follow the event.  I assume that the Director of Legal Aid took out this application on behalf of the plaintiffs.  I thus make an order nisi the plaintiffs to pay costs of this application including all costs reserved to the defendant with certificate for Counsel, which shall become absolute unless any of the parties apply to vary the same by summons within 14 days.  I further direct that if no application to vary is made within 14 days, such costs be summarily assessed by me in chambers on paper without oral hearing, the defendant do lodge and serve her statement of costs within 7 days thereafter and the Director of Legal Aid do lodge and serve his statement of objection within 3 days thereafter.

Mrs Christina Hadiwibawa, Assistant Principal Legal Aid Counsel of the Legal Aid Department, for the plaintiffs

Mr Kestrel Lam instructed by C O Chan & Co, for the defendant