Man's (Asia) Development Ltd v. Secretary for Justice

HCA 2252/2013

[2024] HKCFI 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2252 OF 2013

_______________

_______________

___________________

REVIEW OF TAXATION

__________________

Introduction

1.This is a review of taxation.

Background

2.The Plaintiff (Man’s (Asia) Development Limited) instituted proceedings against the Defendant (Secretary for Justice) claiming adverse possession against Government Lands.

3.On 13 January 2022, the Court of First Instance dismissed the Plaintiff’s claims and ordered the Plaintiff to deliver vacant possession to the Defendant of the Government Lands within two months from the date of the order. A costs order was made against the Plaintiff in favour of the Defendant to be taxed if not agreed.

4.The Defendant’s bill of costs was set down for taxation on 23 August 2023 with three hours reserved. At the taxation hearing, the Defendant was represented by a Legal Assistant (“LA”) of the Department of Justice and the Plaintiff was represented by a Law Costs Draftsman (“LCD”). The bill of costs was duly taxed by me on the same date.

5.The Solicitors for the Plaintiff (“the paying party”) was not satisfied with some of the items of the Defendant (“the receiving party”)’s taxed bill of costs and applied to review my decision. The Taxation Review was heard on 25 October 2023.

6.Both the LCD and LA have helpfully prepared the written reasons behind and answers to the Objection to the Taxation. I shall now turn to the individual items concerned.

Items (9.1) and (9.2) of the Defendant’s Bill of Costs

7.These two items relate to the time spent by the fee earner (“RL”) in the drafting and revision of the Skeleton Submissions for the court hearing on 13 January 2022. Here, the claim on the time spent for work done also included communication and seeking instructions from the receiving party’s client department and advocate.

8.In my original decision, I have taxed off a total of 2 hours and 40 minutes from RL’s time claimed under these two items (an equivalent of 28% of the original claim). It was LCD’s submission that the nature of the application before the Court of First Instance (in this adverse possession claim) on 13 January 2022 was “a simple and straightforward one” and hence, the time spent claimed by RL was excessive. I disagree. Having thoroughly considered the respective submissions made by LCD and LA and reviewing the relevant documents from the Taxation Review Bundle, I am of the view that the time spent I have allowed under these two items as being necessary and proper. I maintain my original decision and the application for review is refused.

Item (20) of the Defendant’s Bill of Costs

9.This item concerns the General Care and Conduct. A total time of 1 hour and 15 minutes (the equivalent of 15 months multiplied by 5 minutes per month) claimed by the receiving party was allowed in full at the original taxation.

10.It was submitted by LCD that the general practice which allows five minutes per month of the litigation for general care and conduct for the supervising solicitor should not be adopted without considering the nature of the action and steps taken. LCD further argued that in the present case, no general care and conduct should be allowed for the three months pre-action period from October 2020 to December 2020. He relied on paragraph 48 of Deputy District Judge YW Hew’s Decision dated 27 January 2021 in Cheng Kwok Hung Samuel v Poon Tung Hoi and Liu Cheng Yi DCPI 803/2017 [2021] HKDC 4 in support of his contention. Ironically, it is noted that further down at paragraph 50 of the same Decision, the Deputy District Judge YW Hew (as he then was) actually proceeded to exercise his discretion on review in allowing the item on as being necessary and proper to cover pre-action General Care and Conduct.

11.On the other hand, LA sought to rely on page 8 of the Decision of Master Barnes dated 19 January 2000 in Au Miu Ling v Wong Ding Yick FCMC No. 6671 of 1996 on the established practice in some Masters in allowing five minutes per month under General Care and Conduct in support of their claim under this item. It was further submitted on behalf of the receiving party that the fact that no court document has been filed between June 2020 and January 2021 does not mean that no work was done during that period for the purpose of this item of costs. In fact, the relevant documents of work done can be found in the Taxation Review Bundle.

12.Upon thorough consideration of the arguments put forward by the parties, I maintain my original decision in allowing this item in full. The application for review is refused.

Item (22c) of the Defendant’s Bill of Costs

13.This item relates to communication with the Court involving two fee earners. However, the main dispute is in respect of a court note issued to the parties on 8 March 2021.

14.The receiving party has agreed that AC (one of the fee earners)’s claim for 2 minutes of her time spent should be taxed off. On this basis, the paying party has agreed not to make further submission on this item.

15.I am prepared to tax off 2 minutes of AC’s time as agreed between the parties and I review my decision to that extent.

Items (B1.1) and (B1.2) of the Defendant’s Bill of Costs

16.These two items relate to the settling of draft skeleton submissions by MC (another fee earner of the receiving party) on 29 December 2021. MC in this case acted as an advocate in the action (with RL acted as instructing solicitor).

17.The grounds for review put forward by LCD were not new. Similar arguments had been advanced during the original taxation and such had already been canvassed before I made my original decision.

18.In my original decision, I have taxed off a total of 5 hours from MC’s time claimed under these two items (an equivalent of 31% of the original claim). Similar to my findings in respect of Items (9.1) and (9.2) above, I am not persuaded by LCD’s arguments that MC’s fees remained excessive despite a reduction of 31% after taxation. Having thoroughly considered the respective submissions made by LCD and LA and reviewing the relevant documents from the Taxation Review Bundle, I am of the view that the time spent I have allowed under these two items as being necessary and proper. I maintain my original decision and the application for review is refused.

Item (B1.4) of the Defendant’s Bill of Costs

19.This item relates to the “…review of papers, further research on the issue of claiming interests at “P+1%” and refresh memory on 12.01.22”. The main dispute here lies in the time spent in considering the extensive research on interest rate conducted by the receiving party and the detailed elaboration for their client department. LCD has submitted that interest rate should not have been an issue and that the paying party had actually offered to pay interest at a higher rate than the receiving party’s claim “…6 days before the advocate’s research”.

20.In my original decision, I have taxed off a total of 30 minutes from MC’s time claimed under this item (an equivalent of 25% of the original claim). Having considered the respective submissions made by LCD and LA and upon reviewing the relevant documents from the Taxation Review Bundle, I am prepared to review this item to the extent that 1 hour is allowed. Hence, an additional 30 minutes will be taxed off.

Item (B1.7) of the Defendant’s Bill of Costs

21.This item concerns MC’s time claimed for considering the Reasons for Decision at the conclusion of the proceedings. LA cited paragraph 62/App/51 of Hong Kong Civil Procedure 2023 in support of the contention that “… government lawyer appearing as an advocate should paid the highest rate and also entitled to make a separate charge for time spent in preparing how the case should be presented in court”. I do not see any problem with this argument thus far. However, paragraph 62/App/51 of Hong Kong Civil Procedure 2023 does go on to say “… that is work done by a barrister prior to going to court which is included in the brief fee (The Building Authority v Business Rights Ltd (per Burrell J)”.

22.Further, it is LCD’s submission that since the handling solicitor (RL) has already claimed costs for considering the Reasons for Decision and no appeal has been lodged, only one fee earner would be allowed for a particular item of work.

23.In my original decision, I have taxed off a total of 10 minutes from MC’s time claimed under this item (an equivalent of 33% of the original claim). Having considered the respective submissions made by LA and LCD and taking into account the fact that I have already allowed RL 15 minutes for considering the same Reasons for Decision under Item 19 of the Defendant’s bill of costs, I am prepared to review my earlier decision and tax off this item on a party and party basis.

Item (C8) of the Defendant’s Bill of Costs

24.This item relates to reviewing files and preparing taxation bundle by Costing Clerk of the receiving party (“CC”).

25.First of all, I must point out that the actual number of hours I have allowed for this item in my original decision was 13 hours for work done by CC and not 15 hours as stated by LCD.

26.It is submitted by LCD that only 3 hours should be allowed for this item of the bill since only 25 objected items required adjudication and when drafting the taxation bill, the costs clerk should have perused and sort out all relevant documents and correspondences in advance.

27.On the other hand, it is LA’s submission that since no agreement could be reached by the parties on communication, it was necessary to prepare the full taxation bundle. It was further submitted that (which I agree) “… simply estimating the bundle preparation time by the number of disputed items is inaccurate”. In support, LA cited as an example, item 22a of the Defendant’s bill of costs (communications with client) which referred to 202 emails/letters received and telephone calls.

28.In my original decision (which was only made after hearing LCD’s objection on quantum), I have allowed 13 hours for CC’s time for reviewing and preparing taxation bundle. Having thoroughly considered the respective submissions made by LCD and LA and reviewing the relevant documents from the Taxation Review Bundle including the Schedule of Communications, I am of the view that the time spent I have allowed under this item as being necessary and proper. I maintain my original decision and the application for review is refused.

Costs of the Review

29.As the review is only partially successful, I consider that appropriate order to be made is that there shall be no order as to costs for the Review of Taxation.

Mr Simon Cheung, Law Cost Draftsman, instructed by Ma Tang & Co, for the Plaintiff

Ms Kate Li, Legal Assistant, of the Department of Justice, for the Defendant