Interlego a.G. v. Tyco Indusries Inc. and Others

CACV000043/1986

IN THE COURT OF APPEAL

(On appeal from the High Court Action No. 4231 of 1984)

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BETWEEN

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Coram: Master Perrior in Chambers

Date of Hearing: 14 December 1989

Date of Decision: 2 January 1990

Date of Delivery of Decision: 4 January 1990

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REVIEW OF TAXATION

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1. On the 22nd December 1989 I delivered a decision upon the Review of Taxation of the High Court Action.

2. Where the objections are common to both bills I will adopt the reasons stated in my review of the taxation of the High Court bill and in these written replies will merely refer back to the said review of taxation delivered on the 22nd December 1989.

Objection 1

3. This objection relates to the hourly rates, which I allowed for Miss Cordelia Chung and Hiss Yolanda Fan. Miss Chung was admitted in March 1985 and Miss Fan in October 1986. The hourly rates claimed in the Defendants' bill were $1,200.00 and $1,000.00 per hour respectively.

4. Both parties made full oral submissions and after hearing the same I awarded Miss Chung an hourly rate of $1,000.00 in 1986 rising to $1,100.00 in 1987. Miss Fan was awarded $900.00 per hour.

5. The only new element raised in this objection is a suggestion that I determine their rates on the basis of rates charted in 1989. I do not know what gave the Plaintiffs this idea. It is wholly wrong. The rates allowed are those which, on the basis of my experience, the solicitors would have been allowed for work done in 1986 and 1987, given their relative experience. It follows that this objection is disallowed.

Objections 2 and 3

6. Both these fees relate to leading counsel's fees for advising. The Plaintiffs currently assert that these conferences were entirely of a solicitor and client nature. Again this matter was fully canvassed the original taxation.

7. I was satisfied that leading counsel had been consulted properly and was advising upon the grounds of appeal. I allowed these items on that basis and see no reason to change my mind now.

Objection 4

8. This objection relates to leading counsel's travelling expenses for visiting the U.S.A. The grounds of the objection are that it is not justifiable for leading counsel to travel to the U.S.A. to attend a conference.

9. As I said in the original review, companies have become multi-national and the law must follow suit. If that is to be so taxing masters will have to adopt an increasingly flexible approach upon taxations of this nature. In the present case, since the defence was being co-ordinated in the U.S.A., and I was satisfied that a conference involving leading counsel was necessary, it was clearly more cost-effective for English counsel to travel to the U.S.A. rather than for a whole of the U.S. defence team to travel to England. On this basis, I allowed counsel's expenses and adhere to that decision.

Objection 5

10. This objection relates to leading counsel's fees at the conference in the U.S.A. It was fully argued before me at the time of the original taxation. After argument I taxed off ?,250.00. I decline to tax off the whole amount as requested.

Objection 6

11. It is submitted that there is no evidence whatsoever to show what the advice referred to in this objection related to. Upon reference to my papers I am unable to find any details of this advice. This being so, I uphold the objection and disallow counsel's fees in the sum of $1,175.00.

Objection 7

12. This relates to a conference with counsel by Mr. Thorne. Originally Mr. Thorne claimed for 3 hours. However, after submissions from both parties I was satisfied that this was too much and allowed 1 hour 30 minutes. There is nothing in the ground of objection which leads me to change my mind. This objection is disallowed.

Objection 8

13. This objection can be read in conjunction with the Objection 7 that it relates to counsel's fees for advising at the conference. I allowed a reduced sum for the reasons stated in my response to objection 7. I have nothing to add. This objection is disallowed.

Objection 9

14. This relates to a very lengthy conference attended by Mr. Thorne for the purpose of preparing a skeleton argument for the appeal. I cannot recall whether a detailed attendance note was produced at the original taxation, but I do recall that this item was vigorously opposed. On the basis of that opposition I reduced the time allowed for the conference by 5 hours. Nothing has been said or written subsequently which leads me to change my view on this matter. This objection is disallowed.   

Objection 10

15. Since I have allowed Mr. Thorne's attendance at a conference in London it follows that he must be allowed his expenses for going there. This objection is disallowed.

Objections 11, 12 and 13

16. My reasons for rejecting these objections are contained in my reply to Objection 9.

Objections 14, 15, 16 and 17

17. The skeleton argument was drafted by leading counsel in London. It was necessary for him to have a Hong Kong junior for whilst leading counsel was an undoubted expert in this somewhat esoteric field of law, he was not so conversant with the Hong Kong Court of Appeal. Hence it seems to me to be eminently reasonable for the Defendants' solicitors to instruct a local junior to cast his eye over the skeleton argument prepared in London. It was for that reason that I allowed these items. These objections are disallowed.

Objection 18

18. This objection relates to another meeting in London with leading counsel. Again, it was fully canvassed at the original taxation. There was only one previous conference relating to the preparation for appeal and I was satisfied that Mr. Panitch's attendance at the December conference was necessary. He was there not merely as an interested spectator, but was a technical adviser at a conference where detailed technical evidence was considered. It may be that the conference was mainly related to law, but it was not wholly so related. This objection is disallowed.

Objections 19, 20, 21 and 22

19. These objections are very much along the lines of those stated in Objection 18. After hearing submissions on the taxation I made certain adjustments to the quantum, but allowed the items in principle. I am satisfied that that was right and disallow this objection.

Objections 23, 24, 34, 36, 44 and 45

20. These relate to counsel's refreshers in Hong Kong. The objections are rejected for the reasons stated in my reply to Objection 12 in the taxation of the High Court Action.

Objections 25, 26, 28, 30, 32, 37, 39, 40, 41 and 42

21. These items relate to the attendance of a young solicitor in the Court of Appeal together with Mr. Thorne. The basis of the Plaintiffs' objection is that as this was an appeal the attendance of such a solicitor cannot be justified, because the appeal related to purely legal arguments. This nay well be so, but nonetheless there were a large number of very detailed exhibits to which the Court needed to be referred. I was told by Mr. Thorne, on the review, that the then vice-president of the Court of Appeal made a special point of thanking the young solicitor for her assistance during the conduct of the appeal. Miss Choi did not dispute that the vice-president said this.

22. For a young assistant solicitor to come to the attention of the vice-president the Court in such a positive manner satisfies me that, if I erred at all upon the original taxation I erred in reducing that solicitor's charging rate to $500.00 per hour. I disallow these objections.

Objection 27

23. This objection relates to an attendance by Mr. Thorne at a conference during the course of the appeal. With respect to the Plaintiffs I consider that it is nonsense to suggest that conferences held with counsel during the conduct  of such an important appeal should be considered a luxury. In my experience short tactical conferences during the course of an appeal are frequently very necessary indeed. This objection is disallowed.

Objections 29, 31,33, 38, 43, 47, 49, 51 and 53

24. These objections are disallowed for the reason given in by reply to Objection 27.

Objection 35

25. It is correct for the plaintiffs' solicitor to say that as the solicitors' fees were disallowed for this conference, counsel's fees should also be disallowed. This objection is upheld and the sum of $5,725.50 is taxed off.

Objection 55

26. This objection is disallowed for the reasons stated in my reply to Objection 96 in the Review of Taxation of High Court Action. In addition it is right to add that I am satisfied, as indicated earlier in this review, that as Mr. Panitch had unrivalled technical knowledge of the design and drawings he played an important role in the appeal, notwithstanding the fact that the appeal was essentially on points of law. The Plaintiffs' solicitor sought to draw an analogy with the Privy Council taxation in London where virtually all of the Defendants U.S. attorney's fees were disallowed. However, I agree with Mr. Thorne that the proceedings before the Court of Appeal in Hong Kong can be distinguished from proceedings in the Privy Council and that by hypothesis to allow or disallow this item on the basis of the Privy Council taxation is to draw the wrong analogy.

Representation:

Appearances : Miss A. Choi of Messrs. Wilkinson & Grist for Plaintiff.

Mr. C. Thorne of Messrs. Denton Hall Burgin & Warrens for 1st and 2nd Defendants.