Chan Oi Kwan, One of the Beneficiaries of the Estate of Chan Yuen, Deceased v. Chan Fu Wing,The Administrator of the Estate of Chan Yuen, Deceased

HCMP 2211/2019

[2022] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2211 OF 2019

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Before:  Madam Recorder Rachel Lam SC in Chambers

Date of Decision on Costs:  26 May 2022

Date of Reasons for Decision on Costs:  27 June 2022

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REASONS FOR

DECISION ON COSTS

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INTRODUCTION

1.On 13 April 2022, I handed down the decision in relation to the Originating Summons dated 29 November 2019 (“OS”) issued by the Plaintiff Ms Chan Oi Kwan (“the Plaintiff”), wherein she sought various reliefs in relation to the administration of the estate of Mr Chan Yuen (“the Deceased” / “Father”) (“OS Decision”). In the OS Decision, I found in favour of the Defendant. These reasons are to be read together with the OS Decision.

2.At the end of the OS Decision, I made a costs order nisi that the Plaintiff was to pay the costs of the proceedings to the Defendant (including any costs reserved), and gave directions for assessment of the costs of the OS by way of gross sum assessment in writing.

3.Pursuant to those directions, the Defendant lodged and served his statement of costs on 3 May 2022, and the Plaintiff’s solicitors (Messrs. Paul W. Tse, newly appointed since the trial) wrote to the Court by way of letter dated 23 May 2022 commenting on the various items of costs.

4.Having considered the above, I ordered on 26 May 2022 that costs would be assessed at HK$800,000.

5.By letter dated 7 June 2022, the Plaintiff’s solicitors have requested a breakdown of and reasons for the costs assessment, which I now set out below.

THE DEFENDANT’S STATEMENT OF COSTS & THE PLAINTIFF’S OBJECTIONS

6.The total sum claimed in the Defendant’s Statement of Costs was HK$1,351,649. This comprised the following:

B Manual Work

B1	Photocopy charges:	3260 pages	$3,260
B2	Attendances by litigation clerk:	57 times	$6,270
		Sub-total:	$9,530

C Communications including Conferences, Telephones Calls and Letters

C1	Attendance on client:	JC*: 32 hours 25 mins; LC*: 3 hours	$172,467
C2	Attendance on other side:	JC: 23 hours 53 mins; LC: 12 hours 17 mins	$140,162
C3	Attendance on counsel:	JC: 10 hours 18 mins; LC: 30 mins	$54,210
		Sub-total:	$366,839

D Professional Work

D1	Preparation of Documents:	88 hours 20 mins	$459,333
D2	Perusal of Documents:	39 hours 36 mins	$205,920
D3	Preparation for hearing:	18 hours 30 mins	$96,200
D4	Hearing including call-over:	18 hours 30 mins	$96,200
		Sub-total:	$857,653

E Counsel – (11 yesrs of experience)

E1	Drafting		$10,000
E2	Conference		$17,000
E3	Brief		$60,000
D4	Refresher		$30,000
		Sub-total:	$117,000

F Other Disbursements

	Travelling expenses		$627
		Sub-total:	$627

*In relation to the above items, JC was the handling solicitor of 15 years’ call, and LC was the litigation clerk.

7.The Plaintiff took issue with the following items, the reasons being briefly summarized below:

(1)  Items B1 and B2: the main objections being (a) the limited number of letters and documents that had been filed or exchanged and (b) the fact that the substantive hearing bundle was compiled by the Plaintiff’s former solicitors. The Plaintiff proposed to reduce these to HK$1,000 and HK$750 respectively.

(2)  Items C1, C2 and C3: the main reasons being that the figures were excessive as the case was not complex in terms of papers and issues involved, and the handling solicitors (who remained the same throughout) should not have required such extensive hours in performing these items. Comment was also made on duplication of work. The Plaintiff proposed to reduce these to HK$35,100, HK$23,400 and HK$31,850 respectively.

(3)  Items D1 and D2: the main reason being that the figures were excessive in view of the limited volume of papers. The comment was also made that preparation of documents could have been handled by the litigation clerk. The Plaintiff proposed to reduce these to HK$5,200 and HK$33,800 respectively.

(4)  Item D3: the reason being that it overlapped with Item C3. The Plaintiff proposed to reduce this to HK$0.

(5)  Item D4: the reason being that the amount of time for the hearing was excessive, which ought to have been 11 hours. The Plaintiff proposed to reduce this to HK$57,200.

(6)  Items E1 to E4: it is said that the brief (E3) should have included drafting (E1), conference (E2) and refresher (E4), so only E3 should be allowed.

(7)  Item F: Travelling expenses should be disallowed.

8.On tallying the Plaintiff’s figures, this would have meant the costs of the total action would be HK$248,300.

REASONS

9.I have considered the individual objections above and also more broadbrush views on the overall costs as well in coming to the HK$800,000 figure ultimately assessed. In particular, I would note the following points:

(1)  I accepted part of the objections as to Items B1 and B2. However, I would note that there were also considerable submissions (Opening, Closing, and Replies to Closing, along with various authorities) which were filed by both sides which would have necessitated some photocopying and handling as well. I assessed these items at a total of HK$5,000.

(2)  I considered the level of reduction proposed by the Plaintiff in relation to Items C1, C2 and C3 was disproportionate. Whilst the case itself was not overly complex, the evidence covered matters which occurred over a considerable period of time. The nature of the allegations and counter allegations meant that time would need to be spent explaining the legal principles, and then taking instructions on the client’s stance, the information required, and the like. Bearing in mind I cannot possibly assess each item of attendance, I took a global approach and assessed these costs in Item C at a total of HK$300,000.

(3)  I accepted part of the objections as to Items D1 and D2. I noted that there was no breakdown provided on who performed these tasks, and the time spent on preparation and perusal of documents was considerable. However, I assumed that this included drafting of the evidence (given the minimal drafting charges by counsel). The evidence of the Defendant was all in Chinese, and as helpfully noted by the Plaintiff, this comprised the 1^st Affirmation of the Defendant (14 pages with 54 pages of exhibits) and the 2^nd Affirmation of the Defendant (11 pages with 11 pages of exhibit). In my experience, a Chinese language affirmation tends to contain a greater amount of information within a shorter page count, so one cannot simply point to the page count to say that it ought not to have required so much time to prepare and collate. Having again reviewed the Defendant’s evidence for the purposes of the decision, I tended to the view that Items D1 and D2 should still have required a decent amount of time, albeit not at the level sought. Adopting a global approach as to perusal and preparation, I assessed these costs of Items D1 and D2 at a total of HK$300,000.

(4)  As to Item D3, I accepted that preparation for the hearing ought not to have taken that long. I assessed this at HK$10,000

(5)  As to Item D4, the substantive hearing took place over 3 days, although some of these were not full days. The figure was also intended to cover the call-over hearing. I assessed this at HK$68,000.

(6)  As to Items E1 to E4, I allowed Counsel’s fees of HK$117,000 in full. Mr Cheung is a counsel of 11 years’ call. I consider the fee that he charged for this matter to be more than reasonable.

(7)  On Item F, I disallowed the travelling fees.

10.The above figures tally to HK$800,000. One must bear in mind that these costs covered the entirety of the action from inception to trial. In bringing the matter to trial, I consider that the fees as assessed were on the whole reasonable.

Written submissions of Messrs. Paul W. Tse, for the Plaintiff

Written submissions of Messrs. Chau & Co, Solicitors, for the Defendant