Tong Wai Yee Winnie v. Secretary for Education and Another

HCAL 1231/2021

[2022] HKCFI 2484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1231 OF 2021

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BETWEEN

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Costs Submissions:  31 May, 9 and 22 June 2022

Date of Decision:  11 August 2022

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DECISION ON COSTS

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A.  Introduction

1.In my Judgment dated 13 May 2022, [2022] HKCFI 1402 – the definitions in which I continue to use – I found that the Applicant had made out various and overlapping grounds for judicial review of the relevant Decision.  Further, on some points which I thought need not be determinative, I found very strong arguments in favour of the Applicant’s case.

2.In the exercise of my discretion as to relief, I quashed the Decision, and I also ordered damages to be assessed, with costs to the Applicant also to be assessed.  I stated that the matters of assessment would be dealt with on paper submissions.  Those submissions have been filed. As to costs, they have been filed by the Applicant for herself, and by Ms Ally Shum, Government Counsel for the Secretary/EDB.

3.My Decision on Damages will be delivered separately.  This is my Decision on Costs.

4.All figures are denominated in Hong Kong dollars, and any references to cents in the offered calculations have been rounded or ignored as immaterial.

B.  Costs

5.The Applicant appeared in person, without legal representation, throughout the proceedings.

6.Order 62 rule 28A of the Rules of the High Court materially provides:

(1)  On a taxation of the costs of a litigant in person there may, subject to the provisions of this rule, be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on the litigant’s behalf.

(2)  The amount allowed in respect of any item shall be such sum as the taxing master thinks fit not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing master would have been allowed in respect of that item if the litigant had been represented by a solicitor.

(3)  Where in the opinion of the taxing master the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he shall not be allowed in respect of the time reasonably spent by him on the work more than $200 an hour.

7.It is common ground between the parties that the most relevant provision is that in Order 62 rule 28A(3).

8.In that regard, the relevant legal principle established – see, for example, Cheuk Shu Yin v Law Yeuk Kan (No 2) [2018] 2 HKLRD 249 at §4(2)  – is that if the litigant in person has handled the work in relation to the litigation in his or her spare time (as is the case with the Applicant), he or she has not suffered any actual pecuniary loss and hence shall not be awarded costs under the indemnity principle of the common law.  However, he or she may be allowed costs of not more than $200 per hour.  The number of hours allowed is the time a solicitor would have spent on that item, not the time the litigant in person has actually taken.

9.Further, in determining the hourly rate, reference will be made to the degree of complexity involved, hence the requirement for more effort by the litigant in person.

10.In her Statement of Costs for the gross sum or summary assessment, the Applicant has stated that she spent an immense amount of time and energy in learning and researching about legal materials relevant to administrative law, preparing court documents, and handling court-related matters.

11.In the period between August 2021 and April 2022, the Applicant claims to have spent 5 hours on the case on each of 90 school working days and 16 hours on the case on each of 157 non-school working days/holidays.  This amounts to 450 hours and 2,512 hours respectively.

12.She therefore claims for the total of 2,962 hours at the hourly rate of $200 – in the overall sum of $592,400.

13.This is, with respect, an extraordinary number of hours, and it is no surprise that Ms Shum, has described it as excessive, without breakdown of details of time allocated and lacking in particulars.

14.In response, the Applicant has explained that she did not provide any timesheets with details of the time allocated to particulars, as she was not aware until after the case had ended that she could claim costs of a litigant in person under Order 62 rule 28A.  But she has referred to her school calendar and her memory of the overall amount of time spent on the case.  As she put it, “[a]side from the time used on sleeping, eating, grocery shopping, travelling to and from school, and conducting teaching duties, the rest of [her] attention went to thinking about and handling the case”.  The Applicant also asserts that she has not included in her calculation of the hours spent on the case the many nights when she would be suddenly woken up by thoughts of what she should be jotting down in court documents, and that basically it was hard for her to recall a period of any long moment in which he did not think about the case in the period between mid-August 2021 and 20 April 2022 (the date of the substantive hearing).

15.As a very general remark, that may well be true.  The Applicant presented – in both her lengthy written materials and her oral submissions – as someone fully “invested” in her complaints raised in these proceedings, and for whom her sense of injustice and the need to right the wrongs suffered might have become almost all-consuming.  But that is not the proper basis upon which to assess the relevant costs.

16.As stated, the number of hours to be allowed on the assessment is the time a solicitor would have spent on the work, not the time the litigant in person has actually taken.  It can be noted that the entire judicial review proceedings from the date of the Form 86 on 1 September 2021 until the substantive hearing on 20 April 2022 took just 232 days (including counting all weekends and holidays).  But, the total of 2,962 hours claimed by the Applicant is equivalent to suggesting a solicitor would have worked for over 370 full working days of 8 billable hours – perhaps equivalent to more than a year and a half of the billable time expected from even the most demanding law firms.  The suggestion is utterly untenable.

17.Nor does it assist the Applicant to say that the total dollar sum she claims is less than two-thirds of the sum which in the opinion of the taxing master would have been allowed for work done by her had she hired a solicitor.  The relevant assessment arises because the Applicant did not instruct a solicitor, but did the material work herself in time spent outside her own employment working hours.

18.In the Respondents’ Response to the Statement of Costs, Ms Shum suggests allowing 100 hours 51 minutes for the Applicant’s time spent on the case, including but not limited to attendance with the Respondents, attendance with Court, preparation of documents, perusal of documents, legal research, preparation of hearing and attendance of hearing and consultation with solicitors.

19.However, it is not made clear why that particular time is suggested as appropriate – with a round 100 hours, but an additional 51 minutes (itself an odd number when solicitors usually charge by reference to units of 6 minutes).

20.I am, therefore, left to do my best to estimate an appropriately reasonable number of hours (perhaps rounded to a convenient figure)  by reference to my own understanding of the importance, difficulties and complexities of the case.  In part, that is a question of proportionality. As with any summary assessment of costs, it requires the discretionary application of a relatively broad brush.  I take into account the litigant in person’s own position, but view the matter through the lens of a solicitor who (a) is not unversed in the law, and does not need to do more than the appropriate amount of research for the particular case in the relevant field of practice, and (b) has some experience of how to marshal information and present documents and argument.

21.On that basis, it seems to me that a reasonable and appropriate number of hours (if perhaps on the generous side)  would be 205, which is equivalent to 25 full working days of 8 hours for preparation and the short interlocutory matters, together with the 5 hours or so spent at the substantive hearing.  I agree that the complexity of the case justifies an hourly rate of $200.  Therefore, those time costs are assessed at $41,000.

22.As to disbursements, there is no dispute that the Applicant is entitled to filing fees, photocopy and stationery costs.  The figure claimed is $3,081 (rounding up the odd cents), but I round that up further to $4,000 to take account of the mechanical aspects of putting the bundles together.

23.There is a dispute as to the last item of disbursements claimed by the Applicant, being a legal fee for general consultation in the sum of $6,000.  The relevant solicitors’ fee note identifies that the fees were charged for general consultation in respect of the Applicant’s damages claim in this action, the consultations having occurred in May 2022.  The Applicant has explained that she decided to engage the solicitor, as she believed that a solicitor must be able to do a better job than she could of summarising the breakdown a calculation of the damages logically and reasonably.

24.However, Ms Shum points to the Cheuk Shu Yin case, where the Court of Appeal ruled that given that the defendants in that case had been acting in person and no notification of legal representation had ever been filed, the defendants could not ask the plaintiff to pay their legal fees even if they had actually engaged a solicitor to assist in the appeal.

25.That is correct, and I think I am bound by that approach.  But, I note that the Court of Appeal did allow the reasonable time the defendants, as litigants in person, spent on consulting their solicitors. In this case, I think it is reasonable to allow for the Applicant to have spent 6 hours consulting her solicitors in this regard, which I assess at $1,200.

26.The last item claimed by the Applicant in her Statement of Costs is the fee of $3,130 she paid to submit her application for qualifications assessment to HKCAAVQ, which extra costs she says she would not have incurred had she not needed to apply as a school-based NET.  However, I agree with Ms Shum that this is not an item of legal costs, and it is not allowable in the claim for costs.

27.Nevertheless, it does seem to be to be an expense which might be relevant to the Applicant’s damages claim.  So, I will address the point in that context.

C.  Conclusion on Costs

28.The total sum of assessed costs payable by the Secretary/EDB to the Applicant is in the sum of $46,200.

29.I order that sum to be payable forthwith.

30.For the avoidance of doubt, I make no order on the argument as to the assessment of costs.

The applicant, acting in person

Ms Ally Shum, Government Counsel, of the Department of Justice, for the 1^st and 2^nd respondents