Leung Jannelle Rosalynne and Another v. Home Affairs Department and Others

HCAL 814/2020

[2020] HKCFI 3150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 814 OF 2020

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DECISION ON COSTS

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1.By a Form 86 dated 4 May 2020, the Applicants applied for judicial review of various decisions concerning the Music Fountain Project at Kwun Tong Promenade.

2.On 6 May 2020, the court directed an oral hearing of the application for leave to apply for judicial review.  The leave hearing was subsequently fixed to be heard on 3 December 2020.

3.On 26 November 2020, pursuant to a consent summons dated 25 November 2020, the court granted leave to the Applicants to withdraw the application, and ordered the Applicants to pay the 1^st, 2^nd and 3^rd Putative Respondents’ costs of the proceedings, to be summarily assessed.  The court also gave directions for the 1^st, 2^nd and 3^rd Putative Respondents to file and serve a statement of costs, and for the Applicants to respond to the statement of costs.

4.The 1^st Putative Respondent filed a statement of costs dated 1 December 2020 claiming costs in the total amount of HK$167,008, and the 2^nd and 3^rd Respondents filed a statement of costs dated 7 December 2020 claiming costs in the total amount of HK$193,495.

5.The Applicants filed their comments on the two statements of costs on or about 15 and 21 December 2020 respectively.

6.The court has considered the two statements of costs and the Applicants’ comments.  It is well established that, in a summary assessment of costs, the court should adopt a broad brush approach.  It is not necessary for the court to assess the reasonableness and amount of each item individually.

7.The application for leave to apply for judicial review is a straight forward one.  3 grounds of judicial review are raised in the Form 86, namely, (i) alleged failure to conduct proper consultation, (ii) alleged misinterpretation or misapplication of guidelines, and (iii) alleged error of law in failing to pay any regard to a previous motion passed by the Sixth Term Kwun Tong District Council.  The relevant legal principles are well established, and the relevant factual background falls within a narrow compass.  Two substantive affirmations were filed in support of the application, one by the 1^st Applicant and the other by the 2^nd Applicant.

8.The 1^st Putative Respondent has filed two substantive affidavit(s)/affirmation(s) on 24 September 2020, and the 2^nd and 3^rd Respondents have also filed two substantive affirmations on 25 September 2020, to resist the application.

9.From the 1^st Putative Respondent’s statement of costs, it appears that 3 lawyers (a DPGC, SGC and GC) were engaged to handle the case.  Substantial time was spent on “Attendance on client” (over 12 hours), “Preparation of documents” (over 12 hours), “Perusal of documents” (over 8 hours), and “Research on law” (4 hours).  There is also an item called “Attendance on advocate”, presumably a reference to the DPGC (over 4 hours).

10.From the 2^nd and 3^rd Putative Respondents’ statement of costs, it appears that 2 lawyers were engaged to handle the case, and counsel was instructed to settle the affirmations filed.  More than 10 hours were spent by solicitors on “Attendance on Client”, 5 hours on “Attendance on Counsel”, 11 hours on “Perusal of Documents”, and 11 hours on “Preparation of Documents (including instructions to counsel and affirmation evidence together with exhibits)”.  In addition, counsel charged HK$67,500 for all work done up to 23 September 2020 (including perusal of papers and settling affirmations).

11.The time spent by the 1^st Putative Respondent and the 2^nd and 3^rd Respondents on various items of work appears to me to be on the high side:

(1)     In respect of the 1^st Putative Respondent: “Attendance on client”, “Preparation of documents”, “Perusal of documents”, “Research on law”, and “Attendance on advocate”.

(2)     In respect of the 2^nd and 3^rd Putative Respondents: “Attendance on client”, “Perusal of Documents”, “Preparation of Documents (including instructions to counsel and affirmation evidence together with exhibits)”, and “Attendance on Counsel”.

12.Further, in respect of the costs incurred by the 1^st Putative Respondent, the engagement of 3 lawyers to handle a relatively simple case would likely involve unnecessary duplications of work.

13.On the other hand, in so far as the costs incurred by the 2^nd and 3^rd Putative Respondents are concerned, in view of the fact that counsel was instructed to advise and settle affirmations, the time which ought reasonably to have been spent by the solicitors should be less.  There would also likely be duplications of work by the 2 solicitors and counsel.

14.Overall, I assess the 1^st Putative Respondent’s costs at HK$100,000, and the 2^nd and 3^rd Putative Respondents’ costs at HK$120,000.

Ho, Tse, Wai & Partners, Solicitors for the 1^st and 2^nd Applicants

Mr Gilbert Mok, Government Counsel, of Department of Justice, for the 1^st Putative Respondent

Mr Kho Chun Hin Kevin, of Lo and Lo, for the 2^nd and 3^rd Putative Respondents