Lam Yin Pok Bosco, A Minor By Lam Po Yee, His Mother and Next Friend v. Dr. Chan Yee Shing also known as Dr. Chan Yee Shing Alvin

HCPI 369/2010 and HCPI 62/2011

[2022] HKCFI 1927

HCPI 369/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 369 OF 2010

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AND

HCPI 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 62 OF 2011

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Before:  Deputy High Court Judge Leung in Chambers

Date of Hearing:  24 May 2022

Date of Decision:  28 June 2022

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D E C I S I O N

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1.This is the application by the plaintiffs in HCPI 62/2011 (the “Parents”) for review of the master’s decision in the taxation of the bill of costs of the defendant filed on 25 May 2020 (“the Defendant’s Bill”).

BACKGROUND

2.The review concerned the Defendant’s Bill in the following two respects:

(1)  The costs ordered to be paid by the Parents to the defendant by DHCJ Seagroatt on 11 October 2012 (the “2012 Order”) at the end of the hearing of the Parents’ then application to vacate and to adjourn the trial (“Issue 1”); and

(2)  The quantum of the costs to be paid by the Parents pursuant to the order of DHCJ Marlene Ng (as she then was) dated 20 August 2013 (“the 2013 Order”) in respect of the costs of and occasioned by the revision of the consolidated revised statement of damages (“Issue 2”).

3.The above issues were raised before the master on 5 February 2021, in respect of which she handed down a written ruling on 25 February 2021.

4.In respect of Issue (1), there is no dispute that by the 2012 Order, the defendant was only awarded costs of his solicitors. However, the Parents argued that such costs were limited to those of the hearing on 11 October 2012. The master disagreed, and ruled that such costs should be those of the Parents’ application before DHCJ Seagroatt.

5.In respect of Issue (2), the master taxed the time costs for such item of work down to 1 hour, which the Parents argued was still excessive.

6.The Parents sought review, which was heard by the master on 10 January 2022. By her decision handed down on 18 January 2022, the master maintained her ruling.

7.Pursuant to O62, r35 of the Rules of the High Court, Cap 4A, the Parents took the matter to this court for further review.

THE PRINCIPLE

8.A review of taxation is not taxation by this court de novo. The taxing master’s decision will be interfered with only in limited circumstances, such as where the master has erred in law or has taken into account irrelevant matters or failed to take into account relevant matters: see Lam Sik Shi v Lam Sik Ying & Anor HCA 1605/2004 (27 November 2020) at §20; Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 at §§29-32.

ISSUE (1)

9.In dismissing the Parents’ application for adjournment of the trial, which was then due to commence in 4 weeks, DHCJ Seagroatt ordered that:

“the Defendant’s solicitors do have their costs of today and the Plaintiff’s own costs be taxed in accordance with Legal Aid regulations”.

The Parents’ application for leave to appeal on the spot was also refused.

10.Essentially, it is argued on behalf of the Parents that “costs of today” in the order of DHCJ Seagroatt literally means the costs of that day, ie the hearing, and nothing more. The defendant does not agree and, as mentioned, nor did the master.

11.Where the issue of construction of a court order is raised, the starting point is the natural and ordinary meaning of the words used in the light of the syntax, context and background in which those words were used. Construction of a judicial order depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties: see China Shanshui Cement Group Ltd & Ors v Zhang Caikui & Anor [2021] HKCA 1139 at §§6.5-6.6; see also Lam Sik Shi v Lam Sik Ying (above) at §23; Cosimo Borrelli v Allen Tak Yuen Chan HCMP 2174/2014 (12 November 2015) at §11.

12.“Costs of today” is more a usage by the court than a defined usage with a single legal meaning as a matter of law. The usage per se and without more might convey the court’s intention of ordering costs of the matter(s) heard on the day or alternatively costs of the hearing on that day only. In the latter case, the successful party was effectively deprived of his or her other costs of the application. Whether the court intended either of these two alternative results needs to be ascertained. It must therefore be properly understood in the context and circumstances as apparent to the parties and the court at the time.

13.The approach of literal construction of the wordings of the order is never the complete answer, especially when the Parents seemingly suggest that this is the rule (almost) regardless. That said, proper construction of the terms of an order of the court is never to improve or render it seemingly more reasonable in a particular way for any party. It is simply to ascertain what the court ordered in terms as set out.

14.Both sides cited cases in their submissions. However, not one of them serves as authority for the notion that “costs of today” as a usage of the court has or is capable of only a single meaning as a matter of law or regardless of what it means to the parties concerned in the context and circumstances in which such costs order was made.

15.The judgment of DHCJ Seagroatt dated 11 October 2012 and the transcript of the proceedings before him reveal the context and the circumstances in which the 2012 Order was made:

(1)  DHCJ Seagroatt dismissed the Parents’ application for adjournment as being an ill-advised application.

(2)  Then there was the following exchange between the Bench and counsel:

“Court: Now, what about the question of costs?

Mr. McCoy: Yes, my Lord, I apply for costs. There are no costs of counsel in relation to this…I do apply for the costs of my solicitors and the lay client in any event…and I will be ultimately, my Lord, asking for some exotic orders at the end of the trial.

Court: Well, never mind the exotic orders for today, Mr. McCoy, but the indication given in your solicitor’s letter or note that you were providing your services on a pro bono basis I’m sure will be appreciated by all and certainly by me.

Mr. McCoy: As your Lordship pleases.

Court: What about the question of costs, Mr. Li?

Mr. Li: In respect of costs, we have heard your Lordship’s order. I have no submission to that…”

(3)  The learned Deputy Judge then gave his order:

“As far as costs are concerned, I would not allow costs of the defendant himself but I will make an order that the defendant’s solicitors have their costs of today”.

(4)  Hence the 2012 Order mentioned above.

16.In my view, the following context and circumstances are clear:

(a)  Upon his ruling on the Parents’ application, the court enquired about the costs. In response, Leading Counsel for the defendant in his submission made clear that he applied for costs, excluding counsel fees (as he appeared on pro bono basis). He asked for costs of his solicitors and his lay client.

(b)  It was in response of the indication by Leading Counsel for the defendant that he would ultimately be asking for some “exotic orders” at the end of the trial that the learned Deputy Judge directed the attention of the parties to the costs orders “for today” instead.

(c)  In response of the request by Leading Counsel for the defendant for costs of his solicitors and his lay client, the learned Deputy Judge decided that he would not allow the costs of the defendant himself but would make an order that the defendants’ solicitors have their costs. His reference to those as the costs of the defendant’s solicitors “of today” simply followed from the context and circumstances discussed under (b) above.

(d)  In the entire course of the learned Deputy Judge entertaining the submission of counsel regarding costs, nothing was ever said or uttered by either the court or counsel for either side that would cause one to understand that somehow the court was considering costs of the hearing exclusively as opposed to those of the application heard on that day.

17.In my view, the master’s approach to and understanding of the 2012 Order are unimpeachable. DHCJ Seagroatt was referring to the costs of the application adjudicated by him on the date when he made the order regarding “costs of today”. The repeated challenge launched by the Parents in this respect is without merit.

ISSUE (2)

18.After the hearing in HCPI 62/2011 on 12 July 2013, DHCJ Marlene Ng handed down her decision on 20 August 2013. The learned Deputy Judge gave a series of directions, including those in respect of revision of the then combined revised statement of damages. She made the 2013 Order in respect of the costs of and occasioned to the defendant by such revision.

19.The defendant billed 2 hours for reviewing, considering and communicating with counsel in respect of the re-revised statement of damages. The master taxed that down to 1 hour (while another 35 minutes were allowed for actual drafting of the answer to the revision). The Parents say that 1 hour was still excessive, and propose 10 minutes instead.

20.As mentioned, this court is not conducting taxation de novo. Further, reference to decided cases with a view to showing the time allowed for particular items of work in those cases has limited, if any, value, as they must be the results of the consideration of the circumstances of those cases in taxation. Other than the fact of whether or not the work was occasioned, no hard and fast rule or standard scale is to be derived from those cases.

21.As explained in her written rulings, the master took into account the parties’ submission, including gauging the necessity and reasonable time for the defendant’s solicitors to read and consider the entire pleading, instead of limiting their attention to the highlighted amendments as suggested by the Parents. In view of the complexity of the document and the specific directions of DHCJ Marlene Ng in her order in respect of how the amendments should be effected, it would not be unreasonable for the defendant’s legal representatives to not limit their perusal and consideration to the highlighted amendments as the Parents suggested. The master considered the argument of the Parents. The master took her view, which this court found, was what she was entitled in the circumstances to take.

22.On behalf of the Parents, it is also argued that if the defendant was allowed to raise objection to the Parents’ claim for 1 hour for drafting the further revised statement of damages, the defendant should likewise be questioned about claiming the same amount of professional time for considering the amendments. I agree with the defendant that there seemed to be no obvious correlation between the costs incurred by the Parents in drafting the amendments and the costs incurred by the defendant occasioned by them. What the two may be said to share is that the time spent must be occasioned and reasonable in the circumstances.

23.It cannot be said that the master erred in her assessment of the professional work time allowed for the item of work in question. There is therefore insufficient basis for interfering with her taxation in this respect.

CONCLUSION

24.It is rather unfortunate to see that for the two issues of costs raised, they have been argued repeatedly and out of proportion. The Parents’ summons for review is dismissed.

25.I make a nisi order that the Parents shall pay the defendant its costs of the present application, including any costs reserved therein, with certificate for counsel. In the absence of application for variation within 14 days, the nisi order shall become absolute without further order. Upon that the defendant shall lodge and serve its statement of costs within 5 working days, and the Parents may lodge and serve their written comment within 5 working days thereafter. Upon receipt of the Parents’ comment or expiry of the time doing so, this court will proceed to assess the costs summarily on paper only.

Mr Wing So, instructed by Ip, Kwan & Co, for the plaintiffs

Ms Sakinah Sat, instructed by Howse Williams, for the defendant