Wong Hon Wai v. The Secretary for Justice

HCPI 664/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 664 OF 2009

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REVIEW OF TAXATION

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1.This is the plaintiff's application for review of my taxation decisions in respect of certain items of the plaintiff's bill of costs filed 7 July 2014, which were taxed on party and party basis pursuant to the order of Madam Justice Mimmie Chan dated 12 March 2014. The plaintiff is claiming $10,316,117.36 for party and party costs and $801,992.32 for common fund costs as he is legally aided. The taxation hearing lasted for 8 days from 6 to 8, 11, 12 May 2015 and 16, 17 and 19 November 2015.

2.In 62/App/6 of the Hong Kong Civil Procedure 2017, it states that the costs chargeable on this basis are all that necessary and proper to enable the adverse party to conduct the litigation, and no more.  Any charges merely for conducting litigation more conveniently may be called luxuries and must be paid by the party incurring them.

OBJECTION 1 – Hourly Rate

3.The handling solicitor of the plaintiff's action is Mr Nicholas Millar who is qualified in HK in 1987 and in England and Wales in 1982.  He claims $5,000 per hour. The Director of Legal Aid ("DLA") proposes $4,000 whilst the defendant suggests only $3,500.  Eventually, his hourly rate was allowed at $4,000 by me at the taxation hearing.

4.According to the recommendation made by the Law Society in 1997, the normal hourly rate of a solicitor who has over 10 years of practice is from $3,200 to $4,000.  In other words, the Law society suggests $3,200 as the lower end and $4,000 as ceiling of the hourly rate of a solicitor having over 10 years of practice.  Needless to say, such recommendation is not binding on the court.  In 62/App/22 of the Hong Kong Civil Procedure 2017, it states that taxing masters may adjust the hourly rates when necessary and assessing the appropriate rate of taxation is a matter for the individual judgment of the master who has examined the court file and will have seen, whether, for instance, great responsibility has been accepted by the solicitor, or whether he has been exerting specialist skill, so as to justify a higher than usual rate.  Similarly, taxing master will consider whether there has been unusual reliance upon counsel or failure to delegate mechanical tasks to junior staff so as to attract a lower than normal hourly rate.

5.In the review hearing, Mr Frost, the law costs draftsman for the plaintiff accepted that the usual rate for a normal case of a solicitor of the seniority of Mr Millar would be $4,000 per hour.  However, he argued that I should exercise my discretion to allow a higher rate in view of the following:

i. Complicated case which would set a precedent;

ii. Conducting work which would normally be done by counsel;

iii. Conduct of the defendant;

iv. Experts;

v. Proportionality

6.The case involved an injury of severity resulting in quadriplegia to the plaintiff who was not yet 18 years old at the time of the accident.  The plaintiff alleged that due to the deficiency in design of the swimming pool and lack of proper warning, he suffered severe injury when diving into the pool.  I accepted that it is a complicated case.

7.The defendant disputed the liability and alternatively, pleaded contributory negligence on the part of the plaintiff.  I do not see any improper conduct on the part of the defendant to contest the claim.

8.The parties were directed by the court to file and serve the expert evidence on both liability and quantum. It is rightly pointed out by the defendant that the application for leave to adduce actuarial evidence was not pursued by the plaintiff before the leave hearing.  After the defendant made substantial payment in about 32 days prior to the trial, the plaintiff accepted and the trial was vacated.

9.It is also noteworthy from section B1, item nos. 288 to 381 (total 94 items) of the bill that Mr Ronald Tang, Junior Counsel, had got involved as early as 22 December 2009 up to 13 July 2012 whilst Mr Michael Ozorio SC started to involve from 3 July 2012 up to 11 March 2014. Needless to say, both Mr Ozorio SC and Mr Tang are very experienced counsel in this area.  Although I accept that this case may be a bit more complex than the usual personal injury case, I am of the view that Mr Millar heavily relied on the advice given by these 2 counsel from time to time since the commencement of this action in October 2009 up to the acceptance of the payment in.

10.Concerning the argument on proportionality, I accepted the defendant's submission that the taxing master shall take into account the amount settled by the parties according to Order 62, schedule I, part II, in particular (f) where money or property is involved, its amount or value. 

11.DLA submitted that I had already allowed the time for drafting the pleadings generously. Having considered all relevant factors and what is fair and reasonable in all the circumstances, I maintain my decision that Mr Millar's hourly rate shall be $4,000.

OBJECTION 2 – Travelling To The Plaintiff’s Home For Meetings (Items 101.1 and 215.1)

12.I disallowed all time incurred by Mr Millar and his clerk for traveling to the plaintiff's home for meetings.  The plaintiff said that he was unable to travel from his home without his domestic helper, unable to afford a specially adapted vehicle and difficult to get public transport.  Hence, Mr Frost for the plaintiff submitted that it was proper and necessary for the plaintiff's solicitor to have meetings at the plaintiff's home in Tuen Mun.  DLA supported this review.

13.To start with, Mr Frost conceded that it not impossible but only difficult for the plaintiff to go to Mr Millar's office in Mongkok. Besides, the defendant rightly submitted that in general, the travelling and waiting time for attending in court are disallowed.  Similarly, no travelling time for attending conferences at Counsel's chambers shall be allowed.  Therefore, in my view, there is no reason why travelling time for attending conferences at the client's home shall be allowed and indeed, it must be a luxury.  Further, I think that if necessary, the solicitor and client even counsel can have video conference by using very simple technology nowadays without wasting the travelling time to go to the office or home for a face to face conference. I maintain my decision that all time incurred by Mr Millar and his clerk for traveling to the plaintiff's home for meetings shall be taxed off.

14.For the plaintiff's request for transferring these costs to common fund, I accept DLA's submission that if such party and party costs are taxed off for reasons that they are excessive or unreasonably incurred, they should be not transferred to common fund.

15.In 62/App/15 of Hong Kong Civil Procedure 2017, it states that the primary difference between taxation on the party and party basis and the common fund basis is in the latitude which the litigant may enjoy in the conduct of his case.  In England, since Lyon v Lyon, O62, r.28(4) has been interpreted as meaning more generous or less strict in approach but not in quantum.  Where a proper sum is allowed for some item of work on the party and party basis, it is wrong ipso facto to allow more on a common fund basis.  Accordingly, I refuse the plaintiff's request for transferring these costs to common fund.

OBJECTION 3 – Interpretation (Items 1, 21.1, 101.1, 215.1)

16.I had allowed some time for the legal clerk to explain the draft documents to the plaintiff and witnesses. Mr Frost submitted that it is necessary for Mr Millar to use the legal clerk as an interpreter during the meetings since Mr Millar cannot speak Cantonese.

17.DLA submitted that costs for interpretation should be treated as part of office administrative costs and overheads of a solicitor.

18.The defendant disagreed that no other solicitor in Hong Kong than Mr Millar is competent enough to handle this case and submitted that it was unfair to ask the paying party to pay extra costs for the interpretation when a bilingual solicitor was not engaged.

19.I accept both submissions made by the defendant and DLA and refuse the plaintiff's review for these items.  Similar to the above, I refuse the plaintiff's request for transferring these costs to common fund.

OBJECTION 4 – Instructions To Peter Cornall (Item 24)

20.The plaintiff claimed 7 hours for drafting letter and 3 hours for drafting index and description of letters. I allowed 4 hours for the former and 1 hour for the latter.

21.Mr Frost submitted that this is a 15‑page document with a detailed description of photographs drafted for an overseas expert and suggested that it should be fully allowed.

22.In my view, Mr Millar was very familiar with the background and issues of the case and documents to be given to the expert.  After examining the instructions again, I maintain that 5 hours allowed in total for preparation of such document were proper in the circumstances.  I reject the plaintiff's review on quantum.

OBJECTIONS 5 AND 6 – Statement Of Claim And Statement Of Damages (Items 46 and 50)

23.The plaintiff claimed 14 hours and 45 hours for drafting the Statement of Claim and Statement of Damages respectively.  I allowed 6 hours and 28 hours respectively.

24.The Statement of Claim was only 10 pages long and the Statement of Damages consisted of 58 pages respectively drafted in July and August 2011.  It can be noted from section B1, item nos. 288 to 390 that Mr Ronald Tang Counsel had kept on giving very extensive advice on various areas such as expert evidence on liability and quantum, specific discovery, including settlement of final draft Statement of Claim and Statement of Damages.

25.In view of the heavy reliance of counsel by Mr Millar, 6 hours and 28 hours allowed by me were reasonable in the circumstances.  I reject the plaintiff's review on quantum.

OBJECTION 7 – Revised Statement Of Damages (Item 158)

26.The plaintiff claimed 18 hours and 45 minutes for drafting the same.  I allowed 10 hours.

27.This document is 75 pages long.  Similarly, Mr Millar had relied on advice from both Mr Ozorio SC and Mr Tang who settled the final draft.  Having compared the Statement of Damages and the Revised one, I consider that 10 hours are reasonable and therefore reject the plaintiff's review on quantum.

OBJECTION 8 – Instructions To Senior Counsel (Item 160)

28.The plaintiff claimed 8 hours and 3 minutes for drafting the same.  I allowed 2 hours.

29.This document is 23 pages long.  Mr Millar was extremely familiar with the case at the time of giving instructions to Mr Ozorio SC in about May 2013.  I had examined this document again.  Given that Mr Millar had written instructions to Mr Tang many times before, I consider that 2 hours are reasonable in the circumstances and therefore reject the plaintiff's review on quantum.

OBJECTION 9 – Review Of Patrick Yeung’s Report Prepared By Peter Cornall (Item 199)

30.The plaintiff claimed 30 minutes for the same but I entirely disallowed as no leave was obtained from the court for such written review prepared by Peter Cornall which was not filed and served.

31.Mr Frost argued that no leave was required to obtain information comments from the expert as to the other side's liability report.  With due respect, I disagree and therefore reject the plaintiff's review.

OBJECTION 10 – Legal Clerk’s Time For Attendance On Mediation (Item 23)

32.The plaintiff claimed 6 hours incurred for the interpretation by the clerk at the mediation but I disallowed.  The defendant rightly pointed out that the mediation was conducted by Mr Tommy Wong who is a bilingual solicitor.  Based on the similar reasons given in the Objection 3 above, the plaintiff's review was refused.

OBJECTION 11 – Witness Statement Of Ika Rome Diane (Item 119)

33.The plaintiff claimed 13 hours for drafting the same.  I allowed 7 hours.

34.This document is 28 pages long and is a statement of an overseas domestic helper.  After examining the same again, I am of the view that the content has no complexity.  Mr Millar claimed to spend 13 hours which must be highly excessive in the circumstances.  I maintain 7 hours reasonable and therefore reject the plaintiff's review on quantum.

OBJECTION 12 – Witness Statement Of Wong Hon Kit (Item 120)

35.The plaintiff claimed 4 hours for drafting the same.  I allowed 3 hours.

36.This document is 9 pages long and is a statement of the plaintiff's brother.  After examining the same again, I am of the view that the content has no complexity and some evidence given by this witness had already been covered by the plaintiff's own witness statement.  A competent solicitor spent 3 hours which are more than enough in the circumstances and I therefore reject the plaintiff's review on quantum.

OBJECTION 13 – Witness Statement Of Wong Wai Yip (Item 121)

37.The plaintiff claimed 4 hours for drafting the same.  I allowed 2 hours.

38.This document is 8 pages long and is a statement of the plaintiff's father.  After examining the same again, I am of the view that the content has no complexity and some evidence given by this witness had already been covered by the plaintiff's own witness statement.  A competent solicitor spent 2 hours which are more than enough in the circumstances.  I therefore reject the plaintiff's review on quantum.

OBJECTION 14 – Witness Statement Of Leung Sau Lin (Item 123)

39.The plaintiff claimed 5 hours for drafting the same.  I allowed 2 hours and 30 minutes.

40.This document is 9 pages long and is a statement of the plaintiff's aunt.  After examining the same, I am of the similar view that the content has no complexity and some evidence given by this witness had already been covered by other witness statements.  A competent solicitor spent 2 hours and 30 minutes which are more than enough in the circumstances.  I therefore reject the plaintiff's review on quantum.

OBJECTION 15 – Witness Statement Of Lau Ho Yin (Item 124)

41.The plaintiff claimed 4 hours for drafting the same.  I allowed 2 hours and 30 minutes.

42.This document is 8 pages long and is a statement of the plaintiff's friend.  After examining the same, I am of the view that the content has no complexity and some evidence given by this witness had already been covered by the plaintiff's own witness statement.  A competent solicitor spent 2 hours and 30 minutes which are more than enough in the circumstances and I therefore reject the plaintiff's review on quantum.

OBJECTION 16 – Witness Statement Of Lau Ho Yin (Item 126)

43.The plaintiff claimed 4 hours for drafting the same.  I allowed 2 hours and 30 minutes.

44.This document is 10 pages long and is a statement of the plaintiff's girl friend.  After examining the same again, I am of the similar view that the content has no complexity and some evidence given by this witness can be dealt with by the expert and had already been covered by the plaintiff's own witness statement.  A competent solicitor spent 2 hours and 30 minutes which are more than enough in the circumstances and I therefore reject the plaintiff's review on quantum.

OBJECTION 17 – Witness Statement Of Wong Hon Wai (Item 127)

45.The plaintiff claimed 24 hours for drafting the same.  I allowed 16 hours.

46.This document is 31 pages long and is a statement of the plaintiff himself.  No doubt he is the most crucial witness in this case.  I note that some evidence given by him had already been covered by the other witness statements.  After examining the same again, I am of the view that 16 hours allowed by me are not just reasonable but indeed very generous in the circumstances.  I therefore reject the plaintiff's review on quantum.

OBJECTION 18 – Second Witness Statement Of Wong Hon Kit (Item 185)

47.The plaintiff claimed 4 hours and 30 minutes for drafting the same.  I allowed 2 hours and 30 minutes.

48.This document is 8 pages long and is a second statement of the plaintiff's brother.  After examining the same, I am of the view that the content has no complexity.  A competent solicitor spent 2 hours and 30 minutes which are more than enough in the circumstances and I therefore reject the plaintiff's review on quantum.

OBJECTION 19 – Second Witness Statement Of Wong Hon Wai (Item 186)

49.The plaintiff claimed 17 hours for drafting the same.  I allowed 10 hours.

50.This document is 26 pages long and is a second statement of the plaintiff himself.  After examining the same, I am of the view that the content has no complexity.  A competent solicitor spent 10 hours which are more than enough in the circumstances and indeed very generous.  I therefore reject the plaintiff's review on quantum.

OBJECTION 20 – Expert Fees Of Peter Cornall (Item 400)

51.£6,450 was claimed for drafting report and attending meeting in Hong Kong.  I allowed £3,420.

52.Mr Frost submitted that the expert charged 60 hours at £90 per hour or £900 per day for the visit to Hong Kong plus £350 per day for 3 travel days out of office.  I allowed £2,250 being 15 hours for visiting the site and interviewing the witnesses and 10 hours for reviewing documents and preparing the report and allowed £1,170 for travelling, making the total £3,420 at the taxation hearing. 

53.At the review hearing, Mr Frost produced an invoice dated 26 July 2011 by the expert in fact claiming at £350 per day for 3 travel days totaling £1,050 rather than £1,170 and accepted that I shall review downward to £1,050, namely for £120 (ie £1,170 ‑ £1,050).  But he suggested that the time claimed for reviewing documents and preparing the report should be fully allowed.  DLA supports the plaintiff's review.

54.I must say that Mr Frost failed to produce the relevant invoice at the taxation but just at the review.  No or no reasonable explanation was given.

55.In 62/App/54 of the Hong Kong Civil Procedure 2017, it states that the fees of an expert witness are in the discretion of the taxing master, and the amount of the fees depends the complexity of the matters on which the expert is reporting, the time necessarily involved in research etc.

56.I consider that that the expert charged £90 per hour is reasonable. Nonetheless, upon examining the report and the said invoice again, I maintain that my assessment was proper in the circumstances.  I reject the plaintiff's review on quantum except reviewing downward for £120.

OBJECTION 20 – Travel Expenses Of Peter Cornall (Item 401)

57.£1,373 was claimed for drafting report and attending meeting in Hong Kong.  I allowed £1,147.

58.Similarly, Mr Frost failed to given reasonable explanation as to why the relevant invoice was produced just at the review but not at the taxation.

59.I note that the original total travel expenses claimed by the expert were £1,393.99 in the bill but only £1,373 as stated in the invoice.  I had fully allowed the airfare and hotel save small deduction in airport car parking, subsistence and local travel.

60.DLA supports the plaintiff's review.  Having reviewing the said invoice again, I maintain that my assessment was reasonable in the circumstances.  I reject the plaintiff's review on quantum.

OBJECTION 22 – Peter Cornall’s Fees (Items 402)

61.£3,150 (ie 34 hours x £90 per hour) was claimed for reviewing new documentation, responding questions from counsel, etc.  I allowed £540 (ie 6 hours x £90 per hour).

62.DLA supports the plaintiff's review.  Although I agree with Mr Frost’s submission that it was necessary for the expert to assist counsel and prepare the trial, I maintain that 34 hours are highly excessive in view of the previous involvement by the same expert and 6 hours was reasonable in the circumstances.  I reject the plaintiff's review on quantum.

OBJECTION 23 – Fees For Translation Of Witness Statements For The Plaintiff From English To Original Language (Items 405 and 411)

63.$9,945 and $30,000 were claimed for translation and I disallowed.

64.All witness statements were drafted in English.  Mr Frost submitted that Senior Counsel had a lot of experience of Bharwaney J complaining if the witness statements were not available to the witness in his own language.  DLA supports the plaintiff's review.  In my view, if that is the case, the plaintiff should seek an order from the court requiring for such translation from English to Chinese or other languages.

65.In my view, the trial judge only needs to read the original witness statements signed by the witnesses and usually not the translation.  Such translation merely serves the plaintiff himself or the witnesses themselves for their own purposes.  I reject the plaintiff's review.

OBJECTION 24 – Alamani Iena (Indonesian Interpreter) (Items 403 and 404)

66.$5,000 and $6,500 were claimed for the time incurred by Indonesian Interpreter respectively and I only allowed $3,600 and $4,675 since I adopted the actual and exact time spent by the solicitor in the meeting.

67.I disagree with Mr Frost’s submission that the time spent by the Indonesian interpreter would be longer than that spent by the solicitor.

68.Mr Frost asked for transfer to common fund if such fees disallowed. DLA opposed.  Similar to the above, if such party and party costs are taxed off for reasons that they are excessive or unreasonably incurred, they should be not transferred to common fund.

69.I therefore refuse both the plaintiff's review and request for transfer.

OBJECTION 25 – Diners Fees For Translating Of The Defendant’s Documents (Item 406)

70.$33,000 was claimed for translation and I allowed $16,000 (ie 16 hours x $1,000 per hour).  Mr Frost submitted that I should allow in full and DLA supports the plaintiff's review.

71.I note that there were many photos and drawings in these documents which did not required translation.  Having reviewing the documents and translations again, I maintain that my assessment was proper in the circumstances.  I reject the plaintiff's review on quantum.

CONCLUSION

72.The entire plaintiff’s application for review be dismissed save that item 400 (ie expert fees of Peter Cornall) be reviewed downward for £120 as explained above.  I see no reason why the costs shall not follow the event.  However, Ms Leung for DLA seems to submit at the review hearing that the plaintiff's solicitors shall personally bear the costs of those objections not supported by DLA and rejected by me.  She said that DLA shall only responsible for those objections supported but rejected by me.  With due respect, I do not see on what legal basis such submission was made as the defendant would not bother if the objections made by the plaintiff were supported by DLA or not.  I think that this application was taken out by the plaintiff's solicitors on behalf of the plaintiff rather than on their own behalf.  Without the opportunity to hear the full argument from all parties, I now make the following order nisi which shall become absolute unless any of the parties including DLA to make application to vary by summons within 14 days:

i.   the plaintiff do pay costs of this review to the defendant, including all costs reserved, to be taxed if not agreed; and

ii.   there be no order as to costs as between the plaintiff and DLA.

73.For the avoidance of doubt, I do not make the usual order that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.  If any of the parties consider that I should make such an order, such parties shall take out a variation application in due course. 

Mr, Frost, law costs draftsman instructed by Messrs Littlewoods for the plaintiff

Mr Henry Ho, law costs draftsman instructed by the Department of Justice for the defendant

Ms Jenny Leung, Senior Legal Aid Counsel, for the Director of Legal Aid