Cheng Ningning v. King & Wood (A Firm)
Read the full judgment text of HCMP 163/2012 on BabelCite. This High Court CFI judgment was delivered on 7 February 2018.
1. The defendant was a firm of solicitors formerly acting for the plaintiff in HCCW 322/2010 and incidental matters (the “PSG Matter”). In these originating summons proceedings the plaintiff seeks to tax bills issued by the defendant to the plaintiff.
Cited by 5 cases · Cites 18 cases
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HCMP 163/2012 [2018] HKCFI 278 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 163 OF 2012 _________________________
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______________________ D E C I S I O N ______________________ INTRODUCTION 1.The defendant was a firm of solicitors formerly acting for the plaintiff in HCCW 322/2010 and incidental matters (the “PSG Matter”). In these originating summons proceedings the plaintiff seeks to tax bills issued by the defendant to the plaintiff. 2.By an order dated 10 April 2014, the court ordered six preliminary issues (the “Preliminary Issues”) in these proceedings to be heard before a Master. The hearing of the Preliminary Issues took place before me. On 21 March 2016, I handed down my decision on the Preliminary Issues (the “Decision”). I made a costs order nisi that the plaintiff should pay 50% of the defendant’s costs for the application relating to determination of the Preliminary Issues, including costs previously reserved for that application, with certificate for two counsel, to be taxed if not agreed (the “Costs Order Nisi”). 3.In view of my rulings on the Preliminary Issues, these proceedings do not need to proceed further and I have directed the parties to take out appropriate applications to deal with the residuary matters to conclude these proceedings. 4.On 1 April 2016, the plaintiff took out a summons (the “P’s Summons”) to vary the Costs Order Nisi to become “costs of and incidental to the trial of the Preliminary Issues be in the cause of these proceedings”. The plaintiff also seeks an order to conclude these proceedings in the following ways:
5.This is my decision on the P’s Summons. BACKGROUND 6.The plaintiff was the sole shareholder and a creditor of a company called “Pioneer Iron & Steel Group Company” (“PSG”). PSG was a company incorporated in the British Virgin Islands which had been placed into voluntary liquidation since about late June 2010. 7.The defendant was at all material times a firm of solicitors practicing in Hong Kong which ceased practice on 1 March 2012 upon its merger with another firm of solicitors. 8.Prior to October 2010, Messrs Deacons acted for the plaintiff in respect of the PSG Matter. On 30 September 2010, the plaintiff met Ms Cindy Wong (“Ms Wong”), a consultant of the defendant at that time, to discuss whether the defendant could provide assistance to the plaintiff in the PSG Matter. 9.On 6 October 2010, Ms Wong sent a copy of the defendant’s retainer letter (the “Retainer Letter”) to the plaintiff. The plaintiff signed and returned the Retainer Letter to the defendant on 8 October 2010 without amendment. The parties had disagreement on the exact date of commencement of the defendant’s retainer and the exact date of its termination. However, such differences are immaterial to the matters before me. Taking together the plaintiff’s case and the defendant’s case, the defendant’s retainer commenced no earlier than 28 September 2010 and terminated no later than 23 May 2011. 10.By a bill numbered B2010K0242 dated 29 November 2010 (the “1st Bill”) the defendant charged the plaintiff $3,900,000 as its profit costs and $1,358,373 as disbursements for the period from 28 September 2010 to 6 November 2010. 11.By a bill numbered B2011D0610 dated 29 April 2011 (the “2nd Bill”) the defendant charged the plaintiff $5,129,973.50 as disbursements. 12.By a bill numbered B2011E0098 dated 16 May 2011 (the “3rd Bill”) the defendant charged the plaintiff $2,200,000 as its profit costs (described as “Agreed Costs”) and $1,438,304 as disbursements covering the period from 7 November 2010 to 16 May 2011. 13.Miss Wong left the defendant’s employment on 18 May 2011. 14.On 24 June 2011, the defendant wrote to Tang & So (“T&S”), the then solicitors acting for the plaintiff, alleging that there were balance fees payable by the plaintiff to the defendant. The defendant said that such fees had been written off by Miss Wong without authority. The defendant’s case was that Ms Wong had actual authority to agree with the plaintiff on costs as per the terms of the Retainer Letter but had no actual, apparent or ostensible authority to agree with the plaintiff on behalf of the defendant on matters relating to costs at variance with the terms of the Retainer Letter. 15.On 29 December 2011, the plaintiff received a bill numbered B2011E0098(A) dated 17 June 2011 (the “4th Bill”) from the defendant charging the plaintiff additional profit costs in the sum of $7,959,975 (the “Additional Costs”) for the period from 7 November 2010 to 16 May 2011 (ie the same period as covered by the 3rd Bill). 16.On 27 January 2012, the plaintiff commenced these proceedings seeking an order to refer the 1st to 4th Bills (the “Bills”) to taxation. The plaintiff filed six affirmations in these proceedings. PREPARATION OF THE TAXATION BILL 17.On 28 February 2012 the court directed the defendant to prepare the bill of costs for taxation and the plaintiff to prepare list of objections. However, no order for taxation has actually been granted by the court. 18.On 25 September 2012, the defendant filed its itemized bill of costs (the “Taxation Bill”) in these proceedings pursuant to the aforesaid directions of the court. In the Taxation Bill, the defendant stated that its time costs for the whole retainer period were $20,297,960 on top of disbursements of $7,801,657.50 (excluding costs of taxation). The plaintiff filed the list of objections herein on 10 November 2012 (the “List of Objections”). 19.On 5 June 2013, the court granted leave for the defendant to revise the Taxation Bill and for the plaintiff to make consequential revision to the List of Objections (the “Bill Order”). 20.The defendant filed the revised Taxation Bill herein on 3 July 2013 (the “Revised Bill”). 21.On 11 July 2013, the plaintiff took out a summons to strike out the Revised Bill on the ground that it failed to comply with the Bill Order (the “Striking Out Summons”). The plaintiff seeks costs of and incidental to the Striking Out Summons and the Revised Bill on indemnity basis. 22.On 20 August 2013, the defendant took out a summons to amend the Taxation Bill by means of the Revised Bill (the “Amendment Summons”). The defendant proposed that costs of and incidental to the amendments to the Taxation Bill be to the plaintiff in any event. 23.On 26 August 2013, the court adjourned the Striking Out Summons and the Amendment Summons with costs reserved. 24.On 11 September 2013, the court further adjourned the Striking Out Summons and the Amendment Summons sine die with liberty to restore. THE PRELIMINARY ISSUES 25.On 13 November 2012, the plaintiff took out a summons to seek directions for determination of the following preliminary issues:
26.By a consent summons dated 23 May 2013, the parties identified the following five issues to be determined by the court as preliminary issues:
27.Directions were given on 11 September 2013 for the parties to file and serve pleadings in respect of the preliminary issues. The plaintiff filed the points of claim on 11 October 2013. The defendant filed the points of defence and counterclaim on 27 November 2013. The plaintiff filed the points of reply and defence to counterclaim on 10 January 2014. 28.In the points of claim, the plaintiff pleaded that prior to her signing of the Retainer Letter, Ms Wong acting on behalf of the defendant had assured the plaintiff orally and agreed with the plaintiff certain terms (the “Pre-retainer Agreement”) and that shortly after the 1st Bill was issued, Ms Wong acting on behalf the defendant made certain oral representations to the plaintiff (the “2nd Set of Representations”). 29.By a consent summons dated 4 April 2014, the parties agreed to vary the preliminary issues to read as follows:
30.By an order dated 10 April 2014, the court directed the parties to exchange witness statements on the Preliminary Issues. 31.The plaintiff had signed a witness statement dated 3 June 2014 and a supplemental witness statement dated 5 September 2014. 32.The plaintiff also called Ms Wong as her witness at the trial of the Preliminary Issues. Ms Wong signed a witness statement dated 25 June 2014 and a supplemental witness statement dated 11 September 2014. 33.The defendant called Mr Yung Yun Sang Simon (“Mr Yung”) and Ms Barbara Chiu (“Ms Chiu”) as its witnesses at the trial of the Preliminary Issues. Each of Mr Yung and Ms Chiu signed a witness statement dated 3 July 2014 and a supplemental witness statement dated 28 October 2014. 34.The trial of the Preliminary Issues took place before me. The hearing last for five days. On 21 March 2016, I handed-down the Decision. My rulings were as follows:
THE P’S SUMMONS 35.In the P’s Summons, the plaintiff seeks to vary the Costs Order Nisi and to dispose of the residuary matters of these proceedings. The residuary matters include the costs for these proceedings which in turn include costs previously reserved on the Striking Out Summons and the Amendment Summons. 36.By paragraph 2(1) of the P’s Summons, the plaintiff proposed that the 1st, 2nd and 3rd Bills be allowed. As I have pointed out at the hearing that I had ruled in the trial of the Preliminary Issues that the plaintiff was not entitled to tax the 1st, 2nd and 3rd Bills on the grounds that the 1st, 2nd and 3rd Bills had been fully settled and there were no special circumstances justifying an order for their taxation (see para 155 of the Decision), it is inappropriate for the court now by order allowing the 1st, 2nd and 3rd Bills. Mr Wong invited me to dismiss the originating summons. As I shall strike out the 4th Bills which is also one of the underlying objectives of the plaintiff in commencing these proceedings, I do not consider that dismissing the originating summons will accurately reflect the rulings of the court on the disputes between the parties in these proceedings. I shall instead order that the application to tax the 1st, 2nd and 3rd Bills be disallowed. 37.Save as to the above, the defendant did not raise objection to the plaintiff’s proposed ways of disposing of these proceedings save and except the costs issues, ie costs for the Striking Out Summons and the Amendment Summons as well as costs for these proceedings. 38.I have no problem with the plaintiff’s application by paragraph 2(2) of the P’s Summons to strike out the 4th Bill but I do not consider that it is necessary for me to disallow the 4th Bill as there is no taxation of the 4th Bill. 39.The remaining issues before me are only costs. They are:
LEGAL PRINCIPLES ON COSTS 40.The starting point for discussion on legal principles on costs will certainly be the following often quoted passage of the judgment of Nourse LJ in Re Elgindata Ltd (No 2) [1993] 1 All ER 232 at 237f-g:
41.The Civil Justice Reform (the “CJR”) has introduced some new elements to the issue of costs in civil litigation. I set out below the Rules of the High Court (the “RHC”) relating to costs order which are relevant to matters before me:
42.In KJ v KMLM (unrep., HCMC 4/2010, 21 May 2014) To J summarized the impact of the CJR on the issue of costs as follows:
43.In Zhuhai International Container Terminals (Jiuzhou) Ltd v Lo Tong Hoi (unrep., CACV 181/2011, 31 July 2012) Kwan JA also observed at para 33 of the judgment that:
44.Bearing the above general principles on costs in mind, I shall now deal with the various costs issues before me. COSTS FOR THE TRIAL OF THE PRELIMINARY ISSUES 45.The Costs Order Nisi which I had made was for the plaintiff to pay 50% of the defendant’s costs for the application relating to determination of the Preliminary Issues. 46.In para 204 of the Decision I stated the reasons for the Costs Order Nisi as follows:
47.In the P’s Summons, the plaintiff seeks to vary the Costs Order Nisi to make the costs of and occasioned to the trial of the Preliminary Issues be in the cause of these proceedings. 48.In the plaintiff’s submissions, the plaintiff went further to submit that the defendant should pay the plaintiff’s costs relating to the Preliminary Issues and costs previously reserved in relation to the application without or alternatively with some percentage disallowances regarding part of the plaintiff’s costs of the Preliminary Issues. 49.The defendant sought to have the Costs Order Nisi to be made absolute. THE PLAINTIFF’S CASE 50.Mr Chang SC representing the plaintiff submitted that the plaintiff was the overall winner of these proceedings including the Preliminary Issues taken as a whole. 51.Mr Chang submitted that the Preliminary Issues were issues arose in the midst of and as part of these proceedings which was caused by the defendant’s assertion that Ms Wong had no authority to agree with the plaintiff on the fees at variance with the Retainer Letter and issuing the 4th Bill. He further submitted that upon the determination of the Preliminary Issues, these proceedings should be brought to a conclusion by disallowing and striking out the whole of the 4th Bill, thereby letting the first three bills to stand. 52.Mr Chang submitted that the defendant should be ordered to pay the plaintiff’s costs of these proceedings which would not have been brought but for the defendant’s issuance of the 4th Bill and denial of Ms Wong’s authority as aforesaid. Mr Chang further submitted that the plaintiff’s costs of the Preliminary Issues should also be included in the costs of these proceedings and paid by the defendant to the plaintiff under his aforesaid proposed costs order for the whole proceedings. 53.Mr Chang contended that if a separate costs order was made by the court for the costs of the Preliminary Issues, it should be no less favourable than having the defendant paying the plaintiff’s costs. He submitted that even if such costs order was not asked for or had not been precisely formulated in the P’s Summons, the court in any event had power to make such order or other order relating to costs as was just and expedient in accordance with sound principles. If necessary, the plaintiff would seek leave to add to the P’s Summons such alternative order to the aforesaid effect of having the defendant paying the plaintiff’s costs for the Preliminary Issues. 54.Mr Chang submitted that the determination of the Preliminary Issues resulted in the entire 4th Bill being effectively disallowed. As such, more than one-sixth of the total amount of the Bills was disallowed with the striking out of the 4th Bill and the refusal by the court to reopen the 1st, 2nd and 3rd Bills and the plaintiff should be entitled to the costs of these proceedings. For this contention, Mr. Chang referred to section 67 of the Legal Practitioners’ Ordinance (Cap 159) (the “LPO”). 55.Section 67(5) of the LPO provides that subject to certain conditions which do not concern us in this case, the costs of taxation shall be paid according to the event of the taxation, that is to say, if one-sixth or more of the amount of the bill is taxed off, the solicitor shall pay the costs, but otherwise the party chargeable shall pay the costs unless the order for taxation otherwise provides. 56.Mr Chang further submitted that the reality of this case was that the defendant tried to add at least $7,959,975 to the aggregate of the fees charged by Ms Wong on the defendant’s behalf but the defendant failed in its arguments. On the other hand, the plaintiff was in effect seeking to have disallowed at least $7,959,975 which involved having the 4th Bill being struck out and in this the plaintiff had succeeded. 57.Mr Chang submitted that there was nothing on which the defendant could be said to have succeeded which entitled the defendant to a single cent more than what the plaintiff had been charged or paid under the 1st, 2nd and 3rd Bills. 58.Mr Chang contended that the failure to establish the Pre‑retainer Agreement or the 2nd Set of Representations or to show any “special circumstances” stipulated in section 67(2) of the LPO only meant that the plaintiff would not be able to have disallowed more than $7,959,975 but she had made it clear that these proceedings would not have been brought had the 4th Bill not been issued. He submitted that overall, the plaintiff had succeeded in knocking out the entirety of what caused these proceedings, including the formulation and trial of the Preliminary Issues in the first place. 59.Mr Chang submitted that in all the circumstances, if when making an order for costs in favour of the plaintiff, some costs relating to the Preliminary Issues should be disallowed, the percentage of costs disallowed should be much less than half. He further submitted that there was no ground for awarding costs against the plaintiff as distinguished from disallowing some costs of the plaintiff. 60.In support of his contention that the plaintiff should not be ordered to pay the defendant’s costs in this case, Mr Chang referred to The Kastor Too [2004] EWCA Civ 277 when the English Court of Appeal held that it was a case where the issue on which the successful party lost would not have been litigated if the unsuccessful party had conceded the issue on which the successful party won. The English Court of Appeal allowed the appeal of the successful party against an order requiring the successful party to pay part of the costs of the unsuccessful party. 61.In respect of the Striking Out Summons and the Amendment Summons, Mr Chang submitted that the two summonses arose out of the defendant’s non-compliance of the Bill Order. 62.Mr Chang submitted that the Revised Bill was not in the practical format as directed by the court in the Bill Order resulting in the plaintiff being forced to waste huge time and costs to examine the voluminous Revised Bill with impractical lack of specifics contrary to an express order of the court. 63.Mr Chang contended that the non‑compliance of the Bill Order requiring the defendant to set out the Revised Bill in a practical format amounted to an abuse of process on the part of the defendant. 64.The plaintiff therefore sought an order for the defendant to pay the plaintiff’s costs for the Preliminary Issues, the Striking Out Summons, the Amendment Summons and these proceedings. THE DEFENDANT’S CASE 65.Mr Wong SC for the defendant contended that the plaintiff was unsuccessful on most of the Preliminary Issues. 66.Mr Wong submitted that the Costs Order Nisi should be confirmed in that it took into account the defendant’s overall success at the trial of the Preliminary Issues whilst reduced the costs payable by the plaintiff to the defendant proportionately in view of the plaintiff’s partial success. 67.In respect of the costs for these proceedings, Mr Wong agreed that these proceedings would be concluded following the determination of the Preliminary Issues and there would be no further “event” for the purposes of costs. He submitted that a fair costs order for these proceedings would be in line with the costs order for the Preliminary Issues, ie for the plaintiff to pay 50% of the defendant’s costs for these proceedings. 68.Mr Wong refer to Surrey Heath Borough Council v Lovell Construction Ltd and Anor [1990] 48 BLR 108 to submit that if the judge who had tried preliminary issues wanted to make an immediate award of costs instead of reserving the costs to the trial or making them costs in the cause, he should be entitled to regard the trial of the preliminary issues as being a separate “event” on its own for the purposes of Order 62, rule 3(2) of the RHC and that it was not satisfactory to grant an order for “costs in the cause” in relation to the costs of the trial of preliminary issues if as a result of the defendant’s success on certain of the preliminary issues, very important parts of the claim would go out of the cause and would not be pursued at trial. 69.He further contended that in a case where substantial time and costs had been expended in preparing and arguing the preliminary issues, it would not be an appropriate case for the court to make an order for costs in the cause. For this contention, Mr Wong referred to Secretary for Justice v Hon Kam Wing (unrep., HCA 3377/2000, 13 March 2003) and Nineyou International Ltd and Ors v Messrs Troutman Sanders (a firm) (unrep., HCMP 697/2009, 3 September 2009). 70.Mr Wong submitted that the trial of the Preliminary Issues ought to be treated as a distinct “event” from these proceedings as substantial time and costs had been spent on the trial of the Preliminary Issues and after conclusion of the Preliminary Issues, there was no longer any “cause” or “event” in these proceedings. As such, it was neither appropriate nor meaningful for the plaintiff to seek in the P’s Summons an order for the costs for the trial of the Preliminary Issues be in the cause of these proceedings. 71.Mr Wong criticized the plaintiff of making a fundamental change of stance at the eleventh hour to seek at the hearing to vary the Costs Order Nisi to an order ordering the defendant to pay the plaintiff’s costs for the Preliminary Issues. 72.In support of his stance to have the Costs Order Nisi made absolute, Mr Wong submitted that the defendant prevailed for most of the Preliminary Issues after trial. The plaintiff only succeeded on one issue (ie Issue 5) while the defendant conceded on one issue (ie Issue 4) and succeeded on the remaining four issues. He submitted that the defendant was the overall successful party of the trial of the Preliminary Issues and the court was entitled to find that the plaintiff ought to bear at least part of the defendant’s costs. 73.Mr Wong further submitted that the six Preliminary Issues were separate and distinct and the court was entitled to take an “issue-based” approach as to costs and make a proportionate costs order in favour of the defendant. 74.Mr Wong pointed out that at the trial of the Preliminary Issues, the parties devoted the vast majority of the time on Issues other than Issue 5 which included matters concerning the nature and background of the PSG Matter, the existence of the Pre-retainer Agreement and the 2nd Set of Representations, the billing practice of the defendant’s firm and that of Ms Wong, etc. Mr Wong contended that the plaintiff’s many unsuccessful issues had led to wastage of considerable amount of time and costs and the court had properly taken these considerations into account in assessing the appropriate costs order. 75.Mr Wong submitted that the defendant’s dispute as to Ms Wong’s authority prior to these proceedings merely related to her “write-off” of billable costs. The defendant did not raise any dispute as to Ms Wong’s authority in respect of the plaintiff’s previously settled fees, which were charged in the context of the Retainer Letter. He submitted that the defendant’s dispute as to Ms Wong’s authority could not have reasonably caused the plaintiff’s commencement of proceedings in respect of the 1st, 2nd and 3rd Bills. 76.Mr Wong contended that even if the issuance of the 4th Bill was the trigger of these proceedings, there was no reason for the plaintiff to raise or seek to argue any of Issues 1, 2, 3, 4 and 6 by way of preliminary issues. He submitted that none of these five Issues had any relevance to question of the validity of the 4th Bill which the plaintiff called the “main event” in the plaintiff’s skeleton submissions lodged for this hearing. He further submitted that it was only fair that the plaintiff ought to bear the costs consequences for those issues which she had fully contested and lost after trial. 77.Mr Wong criticized the plaintiff of trying to tie in the issue of Ms Wong’s authority with all the Preliminary Issues. Mr Wong submitted that the defendant had never disputed Ms Wong’s actual authority to agree with the plaintiff on costs as per the terms of the Retainer Letter. The defendant’s dispute was only as to Ms Wong’s lack of authority to agree costs at variance with the terms of the Retainer Letter. Mr Wong contended that this line of dispute had little bearing or impact on each of the Preliminary Issues. 78.Mr Wong submitted that the defendant had succeeded in affirming the Retainer Letter which in turn had a determinative effect on the Preliminary Issues on hourly rates of the defendant’s fee earners and the non-existence of the Pre-retainer Agreement and the 2nd Set of Representations as well as the fairness and reasonableness of the 1st, 2nd and 3rd Bills. As the defendant had succeeded on Issue 3 on the alleged Pre-retainer Agreement and the 2nd Set of Representations, it was not necessary for the court to deal with Issue 4 on Ms Wong’s authority to bind the defendant which the defendant conceded in the trial of the Preliminary Issues. Mr Wong contended that none of the Preliminary Issues could have been affected by or turned on the defendant’s dispute as to Ms Wong’s authority. 79.Mr Wong submitted that at the most, the defendant had failed on the one issue as to Ms Wong’s authority, which was not significant to the outcome of the Preliminary Issues and the authority issue should only have limited impact on the question of costs. 80.Mr Wong submitted that the plaintiff was ultimately disbelieved by the court in respect of the Pre-retainer Agreement and the 2nd Set of Representations which she alleged to have been privy to. Mr Wong contended that the plaintiff had advanced her case improperly and unreasonably which lead to substantial amount of time being spent on cross-examination and submissions on her case. 81.Mr Wong submitted that The Kastor Too (supra) did not assist the plaintiff herein as this case was not a case which involved two separate bases for putting the successful party’s only claim. He submitted that the defendant had at least a reasonable argument in relation to the issue on Ms Wong’s authority which involved hotly contested disputes between the parties on both fact and law. It was not a case in which the defendant ought to have conceded the issue without trial of the matter. He pointed out that in The Kastor Too, at the end of the day the English Court of Appeal only ordered that there be no order as to costs for that case. As such, The Kastor Too provided no basis for the plaintiff’s submissions that the defendant ought to pay the plaintiff’s costs for the trial of the Preliminary Issues. 82.Mr Wong submitted that following the determination of the Preliminary Issues, it was common ground that these proceedings could be fully disposed of and there would have no further “event” or “cause” in respect of these proceedings. As such, a fair costs order would be for the costs of these proceedings to reflect that of the Preliminary Issues. Mr Wong pointed out that the plaintiff also took the position that the costs of these proceedings should be no different to that of the Preliminary Issues although the plaintiff took a different position in relation to the incidence of costs. 83.In respect of the costs for the Striking Out Summons and the Amendment Summons, Mr Wong submitted that those costs should be treated in line with the costs of these proceedings. 84.Mr Wong disputed that the aforesaid summonses were arose out of the defendant’s non-compliance with the Bill Order of DHCJ Marlene Ng as Her Ladyship did not make any finding of non-compliance with the Bill Order against the defendant when the aforesaid summonses were returned before Her Ladyship on 26 August 2013. At that hearing, the learned deputy judge proceeded to give directions for the summonses with costs reserved. 85.Mr Wong submitted that the Bills were gross sum bills as opposed to itemised bills. The taxation of the Bills would not be conducted on an itemised basis. In such case, the Revised Bill would better serve the purpose of assisting the court to determine whether the gross sum bills were reasonable or otherwise. The Revised Bill might contain additional items justifying a figure higher than the amount of the gross sum bills. He referred to Cook on Costs 2016 para 3.17 and Chan Boon Ning John v Oldham Li & Nie (unrep., HCMP 2166/2005, 12 August 2008). Mr Wong submitted that the defendant opposed the Striking Out Summons on a clear point of law and there was no basis for the plaintiff to seek costs against the defendant for the aforesaid two summonses. 86.In respect of the “one-sixth” rule under section 67(5) of the LPO, Mr Wong submitted that as none of the Bills would be taxed, there was no “event” of taxation. It could not be said that any part of the 4th Bill had been “taxed off” for the purpose of section 67(5) of the LPO and that section was not engaged. 87.Mr Wong asked this court to dismiss the plaintiff’s application to vary the Costs Order Nisi and to order the plaintiff to pay 50% of the defendant’s costs for these proceedings including costs previously reserved in relation to these proceedings which would cover the costs of the Striking Out Summons and the Amendment Summons. DISCUSSION Application to vary the Costss Order Nisi 88.The Costs Order Nisi was a costs order made after the trial of the Preliminary Issues. In the Surrey Heath case (supra) Dillon LJ stated at 121-122 that:
89.Both parties agree that following determination of the Preliminary Issues, these proceedings do not need to proceed further. In fact, paragraphs 2(1) and 2(2) of the P’s Summons are for orders to formally dispose of the Bills concerning us in these proceedings. I shall make appropriate orders in respect of these applications as stated in paras 36 to 38 above to dispose of these proceedings. In such case, there will not be any trial for these proceedings and it is inappropriate to reserve the costs of the trial of the Preliminary Issues to the trial of these proceedings. 90.I awarded a portion of the costs of the trial of the Preliminary Issues to the defendant. The plaintiff contended that a more appropriate costs order for the trial of the Preliminary Issues was costs in the cause or a costs order in favour of the plaintiff. The plaintiff took the view that the aforesaid two proposed costs orders were of the same effect as the plaintiff contended that the plaintiff should have the costs for these proceedings. 91.If it is more appropriate to order the costs for the trial of the Preliminary Issues to be in the cause of these proceedings, I shall so order. Who will get the costs of the cause is a separate matter. Such order will not be made on condition or on the understanding that the plaintiff will get the costs of these proceedings. 92.These proceedings were commenced by the plaintiff for an order that all the Bills issued by the defendant to the plaintiff be referred to taxation. The plaintiff in these proceedings seeks the court’s adjudication on the amount of costs which the defendant is entitled to charge the plaintiff. This is the “cause” or “event” of these proceedings. In the originating summons issued herein on 27 January 2012, the plaintiff does not seek an order to strike out the 4th Bill or a declaration that the defendant was not entitled to issue the 4th Bill. 93.Preliminary issues were first raised by the plaintiff in the summons taken out on 13 November 2012. At that time there were only two preliminary issues raised in respect of hourly rates of the defendant’s fee earners and whether duplication of work would be allowed. 94.With the development of the case, the number of preliminary issues increased to six and their ambit went beyond matters for preparation for taxation of the Bills. They went to the fundamental question as to whether any of the Bills should be taxed at all. Mr Wong rightly pointed out that in the pleadings filed by the parties for the Preliminary Issues, the relief sought by the parties were separate and distinct issues different from the relief sought in the originating summons herein. 95.Four of the Preliminary Issues were on terms upon which the taxation should proceed with; namely hour rates (ie Issues 1 and 2) and agreed contractual terms (ie Issues 3 and 4). Two of the Preliminary Issues (ie Issues 5 and 6) were on how many of the Bills would go to taxation. 96.The court considered that the Preliminary Issues raised were distinct and separate from the aforesaid “cause” or “event” of these proceedings. As such, pleadings confining only to the Preliminary Issues were directed. Witness statements confining only to the Preliminary Issues were ordered. 97.The hearing for the Preliminary Issues last for 5 days. I do not know the exact amount of costs being incurred but expect that substantial costs had been incurred by the parties for the trial of the Preliminary Issues. 98.As Dillon LJ pointed out in the Surrey Heath case (supra) at 122 that:
99.As aforesaid, the “cause” or “event” of these proceedings was to determine the amount of costs the defendant was entitled to charge against the plaintiff. As a result of the determination of Issues 5 and 6, not only very important parts of the claim but the whole claim herein will go out of the cause. It is now unnecessary for the court to further assess the amount of costs which the defendant is entitled to charge the plaintiff. Each party succeeded in one issue which together dispose of the whole proceedings. However, substantial costs had been incurred by the parties to prepare and deal with the Taxation Bill, the Revised Bill and the List of Objections in these proceedings. Which party should bear those costs? 100.Determination on Issues 1 to 4 of the Preliminary Issues did not lead to conclusion of the main proceedings and should have no bearing on who should bear the costs of the main proceedings. In such case, it is not fair to require the party liable for the costs in the main proceedings also to pay the costs of the Preliminary Issues if it is the successful party in the trial of the Preliminary Issues. 101.In the circumstances of this case, I am of the view that it is inappropriate to make the costs of the trial of the Preliminary Issues in the cause of these proceedings. 102.I am left with the remaining option which I had chosen in making the Costs Order Nisi. The next question is: Shall I vary the Costs Order Nisi? 103.In the P’s Summons, the plaintiff seeks to vary the Costs Order Nisi to make it become costs in the cause of these proceedings which I have declined for reasons discussed above. Can the plaintiff pursue for an order to vary the Costs Order Nisi to the effect of ordering the defendant paying the plaintiff’s costs? 104.The plaintiff had applied to vary the Costs Order Nisi within time. The effect of such application is to render costs remain live issues between the parties. When I made the Costs Order Nisi, I had not yet had the opportunity of hearing the parties’ submissions on costs. At the hearing of the variation application, my hands were not tied by the costs orders proposed by the parties, be it made in the variation summons (ie P’s Summons) or at the hearing. The first principle stated by Nourse LJ in Re Elgindata (supra) is that: “Costs are in the discretion of the court”. I am of the view that in a hearing for variation of costs order nisi, I may make the order nisi absolute or make such other appropriate costs order after hearing the parties’ submissions on costs including an order different from the order nisi or orders proposed by the parties. 105.I shall now turn to whether I shall vary the Costs Order Nisi. 106.The Costs Order Nisi is not an issued-based costs order but a proportionate costs order. From para 204 of the Decision cited in para 46 above, it can be seen that in making the Costs Order Nisi I adopted the issue-based approach. I am of the view that adopting such approach in making a proportionate costs order will better serve the underlying objectives of CJR. As Kwan JA pointed out in the Zhuhai International Container Terminals case (supra), the CJR had amended Order 62 rule 5 of the RHC to give incentive to litigant to conduct litigation in a responsible way and be selective as to the issues raised. To J had also pointed out in KJ v KMLM (supra) that since the CJR, the court was more ready to take an issue-based approach. As pointed out by Lord Woolf MR in A E I Rediffusion Music Ltd v Phonograph Performance Ltd [1999] 1 WLR 1507 at 1522-1523 that:
107.A proportionate costs order avoids multiple‑taxation of issue‑based costs order and promotes procedural economy in the conduct of proceedings. The issue-based approach helps to discourage litigants from raising issues devoid of merits which in turn will help to increase the cost‑effectiveness of the proceedings, ensure the case to be dealt with expeditiously and promote a sense of reasonable proportion and procedural economy in the conduct of proceedings. 108.Principles 3 and 4 of Re Elgindata (supra) are engaged in issue-based approach which provide that the general rule (ie costs should follow the event) does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs and where the successful party raises issues or makes allegation improperly or unreasonably, the court may not only deprive him of his costs but order him to pay the whole or a part of the unsuccessful party’s costs. 109.To put into effect these principles of Re Elgindata (supra), the court has to find out who is the successful party. A successful party in an interlocutory application may not necessarily be the successful party at trial. A party may succeed in a contested interlocutory application for discovery yet fail at the trial. In such case, I am of the view that in considering who is the successful party in an interlocutory application, the subject matters of the interlocutory application are the events for the purposes of costs. For this view, I find support in the Surrey Heath case (supra) at 124 when Dillion LJ stated that:
110.In the trial of the Preliminary Issues, both the plaintiff and the defendant claimed to be the overall successful party. This is not surprising, as the Preliminary Issues touch on more than one subject matter and it so happen each party was successful in some. Both parties put their successful issues under a magnifying glass and each of them comes to the inevitable conclusion that it/she is the successful party. 111.I faced a similar situation in Union Knopf (HK) Limited v Marcel Sossnowski [2014] HKEC 553. I approached that situation in the following way:
112.I adopted the same approach in this case. The plaintiff failed on four Issues (ie Issues 1, 2, 3 and 6). As I have pointed out in para 28 of the Decision that: “The existence or non-existence of the Pre-retainer Agreement and/or the 2nd Set of Representations is the main area of dispute between the parties for the Preliminary Issues.” The aforesaid failed Issues on the part of the plaintiff had occupied the bulk of the time of the trial of the Preliminary Issues and the preparation for that trial including the preparation of pleadings and witness statements. 113.The plaintiff tried to tie all the Preliminary Issues to the issue relating to Ms Wong’s authority and contended that:
114.With respect, I disagree. I am of the view that Issues 1 to 4 were raised not because the defendant denied that Ms Wong had authority to agree with the plaintiff on fees at variance with the Retainer Letter but were attempts of the plaintiff trying to gain a more advantageous position in the taxation by reopen the terms of the Retainer Letter which the plaintiff failed at the trial of the Preliminary Issues. 115.Issue 6 clearly had nothing to do with the issue on Ms Wong’s authority. It also had nothing to do with the defendant issuing the 4th Bill. It was put forward by the plaintiff on the basis that the 4th Bill would be struck out. Issue 6 was an attempt of the plaintiff to clawback part of the fees previously paid by her to the defendant by reopen the 1st, 2nd and 3rd Bills which the plaintiff again failed at the trial of the Preliminary Issues. 116.I agree with Mr Wong that The Kastor Too (supra) did not assist the plaintiff. The paragraph of the judgment of Rix LJ relied on by the plaintiff stated that:
117.Even if the defendant had not taken issue on the authority of Ms Wong, I do not see that the plaintiff would not pursue the Preliminary Issues which were for the purpose of reopen the terms of the Retainer Letter to gain an advantageous position in the taxation or for the purpose of clawback previous payments as aforesaid. In fact, Mr Dawes, counsel for the plaintiff at the trial of Preliminary Issues, in answering a point raised by the court expressly confirmed that the plaintiff would still seek taxation of the 1st, 2nd and 3rd Bills even if the 4th Bill was struck out. This is not a case where the issue on which the plaintiff would not have been litigated if the defendant had conceded the issue on which the plaintiff won. 118.Furthermore, in The Kastor Too, there was a very special feature which is lacking in the case before me. In The Kastor Too, the claimant had made a sanctioned offer to the defendant and achieved a better result at the trial. The presence of a sanctioned offer in a litigation will certainly have bearing in the consideration of the issue of costs but there was no such sanctioned offer in the case before me. 119.Mr Chang contended that the plaintiff was not the failing party on Issue 6 as the defendant was also precluded from taxing the 1st, 2nd and 3rd Bills by my determination on Issue 6. I do not see that it was the intention of the defendant to have the 1st, 2nd and 3rd Bills be referred to taxation if the 4th was struck out. As pointed out in para 15 above, the 4th Bill covered the same period of the 3rd Bill. The defendant only intended to have the 3rd Bill referred to taxation by means of taxing the 4th Bill. If the 4th Bill was struck out, the defendant did not ask for taxation of the 1st, 2nd and 3rd Bills. Mr Wong rightly pointed out at the hearing that in the point of defence and counterclaim filed herein by the defendant on the Preliminary Issues, the defendant prayed that: “In the event of this Court declaring that the 4th Bill is liable to be struck out, a declaration that the Plaintiff is not entitled to tax the 1st, 2nd and 3rd Bills in these proceedings”. 120.These proceedings are brought to a conclusion not only because the plaintiff succeeded on Issue 5 and the defendant conceded on Issue 4 but also because the plaintiff failed on Issue 6. Taking into account the fact that the plaintiff had also failed on Issues 1 to 3, if a single party has to be identified as the overall successful party in the trial of the Preliminary Issues, I am of the view that the defendant is more successful than the plaintiff. 121.In Summit Property Ltd v Pitmans [2001] EWCA Civ 2020, Chadwick LJ explained issue-based approach to costs as follows:
122.Adopting the aforesaid approach and engaging principle 3 of Re Elgindata (supra), I have deprived part of the defendant’s costs for the trial of the Preliminary Issues and order the plaintiff to pay 50% of the defendant’s costs for the trial of the Preliminary Issues. 123.I maintain the view that this is a fair costs order for the trial of the Preliminary Issues. I make the Costs Order Nisi absolute. Costs for the Striking Out Summons and the Amendment Summons 124.The Striking Out Summons was taken out on the ground that the Revised Bill failed to comply with paragraph 1 of the Bill Order. 125.Para 1 of the Bill Order ordered that:
126.The Bill Order is very specific. The defendant filed the Revised Bill on 3 July 2013 in purport compliance of the Bill Order. 127.The plaintiff’s complaint against the Revised Bill was set out in para 23 of the plaintiff’s reply submissions lodged for this hearing as follows (omitting reference to hearing bundles):
128.After the plaintiff took out the Striking Out Summons, the defendant took out the Amendment Summons on 20 August 2013 seeking leave to amend the Taxation Bill by means of the Revised Bill with costs to the plaintiff. 129.The defendant’s stance in relation to the costs reserved in respect of the Striking Out Summons and the Amendment Summons was that those costs should be treated in line with the costs of these proceedings. The defendant relied on the fact that DHCJ Marlene Ng who made the Bill Order did not make any finding of non-compliance with the Bill Order when the aforesaid two summonses were returned before Her Ladyship on 26 August 2013 but simply adjourned both summonses to another directions hearing with costs reserved. 130.The defendant’s answer to the Striking Out Summons can be found in para 31.2 of the defendant’s submissions lodged for this hearing as follows:
131.From the above, it can be seen that the defendant did not seek to argue that the Revised Bill was in compliance with the Bill Order. The defendant only contended that the Revised Bill (though might not be in compliance with the Bill Order) would assist the court better in the taxation of the four gross sum bills in these proceedings. In fact, at the hearing, Mr Wong submitted that the Bills were gross sum bills and it was not possible to prepare an itemized bill for these gross sum bills in the specific ways as directed in the Bill Order. 132.The fact that the learned deputy judge did not make any finding of non-compliance of the Bill Order was not because Her Ladyship found no non-compliance of the Bill Order but because Her Ladyship had decided not to deal with the striking out application for the time being. 133.The defendant might consider that the Revised Bill would be more useful to the court than a revised bill prepared in accordance with the Bill Order for the taxation of the Bills. However, this is no ground for non-compliance of the Bill Order. If the defendant considered that the directions contained in the Bill Order had been wrongly given or had become inappropriate for whatever reasons, the defendant should have applied to the court to set aside or vary the Bill Order but should not have simply ignored the court order and conducted the proceedings in a way which the defendant considered suitable. Such approach to say the least should be discouraged. 134.I do not accept that the defendant’s opposition to the Striking Out Summons involved “a clear point of law” as put by Mr Wong in his skeleton submissions. The striking out application was premised on non‑compliance of court order. It was not an application asserting that the defendant was not entitled legally to refer to additional items to justify its gross sum bills. Whether the Revised Bill failed to comply with the Bill Order is a factual matter. 135.I agree with the following submissions of the plaintiff stated in the plaintiff’s reply submissions:
136.Mr Wong contended that the Bill Order only granted “leave” for the defendant to revise the Taxation Bill and it was not mandatory that the defendant had to revise the Taxation Bill. Thus, there was no non‑compliance of the Bill Order. With respect, I disagree. As I have pointed out above, the Bill Order was very specific. The court was of the view that the Taxation Bill prepared by the defendant was not good enough for the purpose of taxation and directed the defendant to revise the Taxation Bill in a specific way. In the context of these proceedings, I am of the view that the word “leave” used in the Bill Order meant to allow the defendant an opportunity to make necessary revision to the Taxation Bill as specifically directed by the court so as to make the Taxation Bill suitable for taxation. It was not meant to grant liberty to the defendant to decide whether it would like to amend the Taxation Bill. 137.These proceedings will now be concluded. It is not necessary for the court to adjudicate on the Striking Out Summons and the Amendment Summons. However, in view of the above discussion, I am of the view that the costs of and occasioned by the Striking Out Summons shall be paid by the defendant to the plaintiff, to be taxed if not agreed. In the Striking Out Summons, the plaintiff seeks costs on indemnity basis. To J had summarized the principles applicable to indemnity costs in KJ v KMLM (supra) as follows:
138.Applying the aforesaid principles to the Striking Out Summons, I do not consider that the circumstances for the defendant filing the Revised Bill herein justified a costs order on indemnity basis as sought by the plaintiff. I order such costs to be taxed on usual party-and-party basis. 139.In respect of the Amendment Summons, the defendant prayed in the summons for costs of and incidental to the amendments to the Taxation Bill be to the plaintiff in any event. The defendant had in fact already amended the Taxation Bill by the Revised Bill. The Amendment Summons was in effect seeking a court order to affirm what had already happened. Not granting a costs order in terms of the costs order proposed in the Amendment Summons will not be doing fairness to the plaintiff. I grant a costs order in terms of paragraph 3 of the Amendment Summons ordering costs of and incidental to the amendment to the Taxation Bill by means of the Revised Bill be to the plaintiff in any event to be taxed if not agreed. Costs of these proceedings 140.These proceedings will now be concluded by disallowing application for taxation of the 1st, 2nd and 3rd Bills and striking out of the 4th Bill. 141.The remaining issue is who should get the costs for these proceedings. 142.The plaintiff submitted that she was the successful party. The plaintiff contended that these proceedings were caused by the defendant disputing the authority of Ms Wong in dealing with the plaintiff on costs and issuing the 4th Bill seeking to the charge the Additional Costs against the plaintiff on top of the sum of $14,026,650.50 already paid by the plaintiff to the defendant under the 1st, 2nd and 3rd Bills. The plaintiff submitted that as the defendant did not get a single cent more than the costs already paid by the plaintiff out of these proceedings, the plaintiff is the successful party. 143.The plaintiff also referred to the so called “one-sixth” rule stipulated in section 67(5) of the LPO. Section 67(5) of the LPO refers to “the costs of the taxation shall be paid according to the event of the taxation”. There is no taxation in these proceedings. I agree with Mr Wong that section 67(5) of the LPO is simply not engaged. 144.As I have pointed out in para 92 above, in the originating summons issued herein, the plaintiff does not seek to declare that the defendant was not entitled to issue the 4th Bill or to strike out the 4th Bill. In the originating summons, the plaintiff seeks taxation of the Bills. None of the Bills will now be taxed. Strictly speaking, the plaintiff’s application by the originating summons has failed. However, I am of the view that this is too dogmatic an approach to do justice or fairness to the parties in the circumstances of this case. If it is the defendant who has come to this court to seek taxation of the 4th Bill to compel the plaintiff to pay the Additional Costs, the defendant will meet the same fate. 145.I have made the following findings in the Decision:
146.The initial purpose of the plaintiff in commencing these proceedings was to stop the defendant from charging her the Additional Costs. She has successfully achieved this goal. To such extent, the plaintiff is the successful party. 147.However, the plaintiff did not stop at there. The plaintiff wished to clawback part of the payments which she had previously paid to the defendant under the 1st, 2nd and 3rd Bills. In the originating summons the plaintiff also seeks an order for the defendant to refund to the plaintiff such sums of money as may on such taxation appeared to have been overpaid. The plaintiff asserted that she had overpaid the defendant and sought taxation of the 1st, 2nd and 3rd Bills in these proceedings with a view to clawback part of her previous payments. To such extent, the plaintiff fails. 148.In A L Barnes Ltd v Time Talk (UK) Ltd [2003] EWCA Civ 402, Longmore LJ explained who would be considered as a successful party in a commercial litigation as follows:
149.The defendant wanted the plaintiff to pay the Additional Costs but failed. The plaintiff wanted to clawback part of the fees which she had previously paid to the defendant but also failed. The defendant does not get a single cent more from the plaintiff and the plaintiff also does not get a single cent back from the defendant. 150.The major part of the costs in these proceedings, other than costs for the trial of the Preliminary Issues which have been dealt with separately in this decision, will be the substantial costs incurred by the parties to deal with the Taxation Bill and the Revised Bill which include the costs for the List of Objections. 151.In para 144 of the Decision, I had noted the following submissions of Mr Wong made at the trial of the Preliminary Issues:
152.Mr Wong criticized the plaintiff of not adhering to her such position and confining the issue in these proceedings to whether the defendant was entitled to issue the 4th Bill. If so, all the substantial costs for preparing the Taxation Bill, the Revised Bill and the List of Objections would be saved. 153.Although the plaintiff alleged that if the defendant had not issued the 4th Bill, she would not have commenced these proceedings. However, as I have pointed out in para 92 above, the plaintiff did not seek to strike out the 4th Bill or to declare that the defendant was not entitled to issue the 4th Bill. Instead, the plaintiff sought taxation of all the Bills (including the 2nd Bill) and went further to try to seek taxation of the 1st, 2nd and 3rd Bills even after the 4th Bill had been struck out. The plaintiff contended that when she commenced these proceedings, she was not aware of her right to claim that the defendant was estopped from issuing the 4th Bill. I had rejected such contention of the plaintiff. (See para 123 of the Decision) 154.In para 153 of the Decision, I noted that (omitting page reference to hearing bundles):
155.Despite such clear stance taken by the plaintiff just two months prior to her commencing these proceedings, the plaintiff pursued the course of action of seeking taxation of the 1st, 2nd and 3rd Bills despite the 4th Bill being struck out. The plaintiff relying on the 4th Bill to asserted that she was entitled to tax the Bills under section 67 of the LPO as of right, yet in the trial of the Preliminary Issues, the plaintiff sought to strike out the 4th Bill. I note that in the Decision, I expressed the view that the plaintiff commenced these proceedings as a logical response to the defendant’s issuing of the 4th Bill and denial of Ms Wong’s authority to charge fees at variance with the Retainer Letter (see para 128 of the Decision). However, the plaintiff took the matter further. In the course of these proceedings, the plaintiff changed her stance with a view to get the best of both worlds but failed. I do not see this as a reasonable way to tackle the dispute as to whether the defendant was entitled to issue the 4th Bill or whether Ms Wong had the authority to deal with costs charged to the plaintiff at variance with the Retainer Letter. 156.I found in para 151 of the Decision that the plaintiff accepted the final figure of the defendant’s costs proposed by Ms Wong and duly settled the same on 22 June 2011 and that both Ms Wong and the plaintiff agreed that the total fees charged by the defendant in the 1st and 3rd Bills were reasonable charges for the PSG Matter. Yet, the plaintiff in these proceedings had tried to alleged that there were misrepresentations on the hourly rates of the defendant’s fee earners and that the hourly rates charged by the defendant’s fee earners against her were unreasonable. All these assertions were rejected by this court in the trial of the Preliminary Issues. 157.Of course, I shall not lose sight of the defendant issuing the 4th Bill after it had issued the 3rd Bill as “Final Bill” and denying the authority of Ms Wong to charge fees at variance with the Retainer Letter until the 4th day of the trial of the Preliminary Issues. 158.If the defendant did not issue the 4th Bill and dispute the authority of Ms Wong to agree fees with the plaintiff, the plaintiff might not have commenced these proceedings. 159.If the plaintiff had adhered to her pre-action position of only disputing the defendant’s entitlement to issue the 4th Bill in these proceedings whether as the only claim or as an alternative claim, the court will certainly deal with this fundamental issue before directing the parties to incur the very substantial costs to prepare the Taxation Bill, the Revised Bill and the List of Objections. 160.The taxation of all the Bills will require an itemized bill cover the whole period of retainer of the defendant. As I have pointed out in para 15 above, the period covered by the 4th Bill was the same as the period covered by the 3rd Bill. In such case, the taxation of the 1st, 2nd and 3rd Bills will also require an itemized bill cover the whole period of retainer of the defendant. Whether it is a taxation of all the Bills as contended by the defendant or taxation of the 1st, 2nd and 3rd Bills as contended by the plaintiff, costs for preparing the Taxation Bill and the List of Objections will have to be incurred. 161.The plaintiff’s change of stance to try to clawback part of her previous payments paid to the defendant and the defendant’s taking advantages of this change of stance of the plaintiff by agreeing to a taxation of all the Bills with a view to legitimatize the 4th Bill have contributed equally to causing the substantial costs for preparing the Taxation Bill and the List of Objections. 162.In view of above, I find that there is no overall successful party in these proceedings. I take into account the matters stated in Order 62, rule 5(1)(e) and (f) of the RHC, ie the conduct of all parties and whether a party has succeeded on part of his case and the matters stated in Order 62, rule 5(2) of the RHC especially the matters stated in sub-paragraphs (a), (b) and (d). I am of the view that a fair costs order for these proceedings is no order as to costs. I so order. COSTS OF THE P’S SUMMONS 163.The plaintiff fails in her application to vary the Costs Order Nisi but succeeds in getting the costs for the Striking Out Summons and the Amendment Summons. Both parties fail to get the costs for these proceedings. A small part of the costs for the P’s Summons was to deal with residuary matters to conclude these proceedings. The parties have no dispute to the order to dispose of the 4th Bill. The proposed orders to dispose of the 1st, 2nd and 3rd Bills put forward by both parties do not find favour with this court. There should be no order as to costs for the application disposing of the residuary issues of these proceedings. 164.The plaintiff shall pay the defendant’s costs for her failed application to vary the Costs Order Nisi but shall get the costs for application relating to the costs of the Striking Out Summons and the Amendment Summons. The parties’ cases in the variation application mingle with their cases for the costs of the main proceedings. As pointed out by To J in KJ v KMLM (supra) at para 17 of the judgment that: “A party may be deprived of part of his costs on the failed issues even if such costs overlap with those of the succeeded issues.” Doing my best to make a rough apportionment of the costs incurred for various matters raised in the P’s Summons and to assess the setting-off effect of the aforesaid costs orders, I am of the view that the plaintiff shall pay 30% of the defendant’s costs for the P’s Summons including costs previously reserved in respect of the P’s Summons. 165.I agree that the issues raised by the P’s Summons concern legal issues warranted involvement of counsel and both parties were represented by two counsel at the hearing. I grant counsel certificate for two counsel for the hearing of 14 December 2016. 166.The parties had at the hearing addressed the court on costs for the P’s Summons preliminarily. However, their submissions were made in the context that they would be the successful parties in all the issues raised at the hearing. In such case, I shall afford an opportunity for the parties to address this court on costs for the P’s Summons in the context of my rulings in this decision if they so wish. I make the aforesaid costs order for the P’s Summons an order nisi. CONCLUSION 167.To summarize, I dismiss the plaintiff’s application to vary the Costs Order Nisi and make the Costs Order Nisi absolute. I order that the 4th Bill be struck out and the application to tax the 1st, 2nd and 3rd Bills be disallowed. The defendant shall pay the plaintiff’s costs of the Striking Out Summons and costs of and incidental to amendment to the Taxation Bill by means of the Revised Bill including costs previously reserved in respect of the Striking Out Summons and the Amendment Summons. There be no order as to costs for the main proceedings including costs previously reserved in the main proceedings. 168.I make a costs order nisi that the plaintiff shall pay 30% of the defendant’s costs for the P’s Summons including costs previously reserved in respect of the P’s Summons with certificate for two counsel. This order nisi shall become absolute 14 days after the date of this decision unless application is received from either party within this 14‑day period to vary the same. 169.The only thing remains is for me to thank counsel from both sides for their helpful assistance to this court in dealing with all the issues raised at the hearing before me.
Mr Denis Chang SC and Ms Ifan Chan, instructed by Fu and Cheng, for the plaintiff Mr Anson Wong SC and Mr Martin Kok, instructed by Fairbairn Catley Low & Kong, for the defendant [1] [1992] 1 WLR 1207 at 1214A-C. [2] [1999] 1 WLR 1507per Lord Woolf MR at 1522-1523. [3] [2012] 2 HKLRD 1128 at 1133-1135, §§10-13, per Cheung JA (with whom Yuen JA agreed) [4] [2012] 3 HKLRD 679 at 701, §100, per Kwan JA (with whom Yeung VP and Lam J (as he then was) agreed). [5] Supra at 1523-1524, per Lord Woolf MR. [6] Supra at 1133-1135: §§10-13, per Cheung JA. [7] HCMP 2239 of 2000 (unreported, 8 October 2002) at §§10-12, per Kwan J (as she then was). [8] HCAL 16-19 of 2007, HCMP 1175 of 2007 (unreported, 9 December 2010) at §7, per Saunders J. [9] CACV 181 of 2011 (unreported, 31 July 2012) at §33, per Kwan JA. [10] CACV3884 of 2001 (unrreported, 16 July 2002) at §§23-24, per Le Pichon JA, upheld on appeal (2003) 6 HKCFAR 265. [11] HCA 1206 of 2006 (unreported, 16 June 2008) at §16, per Recorder Fok SC (as he then was). [12] Supra at §33, per Kwan JA. [13] (2004) 7 HKCFAR 114 at 123D-E, per Li CJ [14] [1991] 1 HKLR 177 at 182G, per Godfrey J (as he then was) [15] (2004) 7 HKCFAR 114 at 123I-J,§15, per Li CJ. [16] [1991] 1 HKLR 177 at 182J, 183C, E & G, per Godfrey J (as he then was). [17] HCA 7935 of 1998 (unreported, 26 March 2004) at §11, per Lam J (as he then was). [18] [2002] WLR 2810 at 2813H, §12, per Simon Brown LJ (as Lord Brown then was). [19] (Supra) at 177F-G. [20] [2001] All ER (D) 36 (Nov) at §15 & §24, per Deputy Judge Kallipetis QC [21] [2005] 1 HKLRD 598 at 610, per Recorder Fok SC (as he then was) [22] HCA 2153 of 2007 (unreported, 31 March 2010) at §14 & §18, per Deputy Judge Lisa Wong SC. [23] [1997] 1 HKLRD 1327 at 1336B-C, per Stock J (as he then was) [24] (Supra) at §18 [25] (Supra) at §§24-25. | |||||||||||||||||||||||||
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