Read the full judgment text of CACV 172/2017 on BabelCite. This Court of Appeal judgment was delivered on 28 February 2018 before Lam VP, Yuen JA, Kwan JA.
Civil procedure – taxation of costs – review of taxing master's certificate under Order 62 rule 35 – proper approach – whether the judge should follow the old English approach or the newer English approach – Hong Kong should continue to follow the old English approach – taxing master is the primary decision maker – judge does not conduct a taxation de novo – judge should only interfere on limited grounds such as error of principle, taking into account irrelevant matters, or misapprehension of facts. Costs – section 67 of the Legal Practitioners Ordinance, Cap 159 – solicitor and client taxation – whether deployment of two partners to do the same or substantially the same work is reasonable – the master's reasoning that the instruction of four counsel justified two solicitors doing the same work is an error of principle. Costs – Order 62 rule 29(3) – rebuttable presumption that costs of an unusual nature are unreasonably incurred if the client was not informed beforehand – applies to duplication of work by two partners where the client was not made aware. Costs – review by a judge of the taxing master's certificate – once the judge finds grounds to interfere, he is entitled to exercise the discretion afresh under Order 62 rule 35(6) – the judge erred in failing to consider whether a senior solicitor assisted by a junior solicitor could justifiably be engaged, instead of simply taxing off the costs of one partner. Outcome – appeal allowed – the 64 disputed items are allowed at the costs of one partner plus a notional junior solicitor at half the partner's rate – costs of the appeal to the plaintiff with a certificate for 2 counsel – costs orders below not disturbed.
Legal issues: Proper approach for a judge reviewing a taxing master's certificate under Order 62 Rule 35 · Whether the taxing master erred in principle in allowing duplication of work by two partners · Application of the rebuttable presumption under Order 62 rule 29(3) to duplicated partner work · Whether the judge erred in failing to consider engagement of a junior solicitor alongside a senior solicitor
Outcome: Appeal allowed; the judge's taxation was varied. The Court of Appeal restored the master's decision in part by holding that the 64 disputed items should be allowed as the costs of one partner plus the costs of a notional junior solicitor equivalent to half of the costs of a partner.
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