Lam Kam Hei v. Ng Ching Hoi

DCPI 717/2022

[2024] HKDC 716

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 717 OF 2022

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BETWEEN

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DECISION

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Introduction

1.By a summons filed on 22 December 2023, the defendant (paying party) applied for a review of taxation pursuant Order 62 rule 35 of the Rules of the District Court.

Legal principles on taxation review by a judge

2.The Court of Appeal in Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 in approving the approach in Chan Yin Na v Union Medical Centre Ltd [2011] 4 HKC 158 held that:-

“On a review of a taxing master’s certificate under O62 r35, a judge did not conduct a taxation de novo and should not interfere with the Master’s decision, which was essentially a matter of discretion, save in limited circumstances: if the decision was shown to have been arrived at under a mistake of law, or in disregard of principles, or under a palpable misapprehension as to the facts, or plainly in reliance on irrelevant matters, or to be such as to fall outside the generous ambit within which reasonable disagreement was possible.”

The review

3.The defendant sought to review the hourly rates of the 2 fee earners and items 12.1, 16.1, 16.2, 24.1, 27.1-27.2 and 29 of Section A and item 2 of Section C of the bill of costs.

Hourly rates

4.In respect of the hourly rates, the defendant went a great length to recount the nature of the case, that it was a simple case; that the defendant did not dispute liability and that the defendant was only contesting the plaintiff’s pleaded earnings; that the plaintiff effected a sanctioned payment a month before the first Checklist Review. The defendant complained that the learned Master did not take into account the intention of the defendant to settle early by effecting sanctioned payment before the filing of the consent summons dated 4 August 2022. Therefore, it was submitted, that the hourly rate of a solicitor of 8 years’ post-qualification experience should be allowed instead. The defendant relied on Man Lai Mui v Director of Territory Development & others, DCPI 164/2003, 28/2/2006, unreported and Cheng Kwok Hung Samuel & Poon Tung Hoi & others [2019] HKDC 1384 and [2021] HKDC 4 in aid.

5.From paragraphs 15 to 38 of the Decision of the learned Master on review, it seems clear that all the grounds put forward by the defendant before me had been raised before the learned Master. The learned Master had not only considered the defendant’s argument but further considered that the approach of Marlene Ng J in Tam Li Kam Wah Agnes, the Administratrix of the Estate of Tam Michael Arthur Siu Cheung, the Deceased, and in her personal capacity v Wong Pui Hang William, the Administrator of the Estate of Wong Ian Yik, deceased & Others [2022] HKCFI 805 of dealing with the bill on item basis rather than adopting an across the board reduction to be more appropriate.

6.With respect, the defendant has failed to point out any error of the learned Master. Disagreement alone does not entitle the defendant to have a third bite of the cherry (as Mr Jack Chan, counsel for the plaintiff, put it at the hearing) in the guise of taxation review before a Judge. Further, the reliance of Man Lai Mui (supra) and Cheng Kwok Hung Samuel (supra) does not assist the defendant as the decisions were based on different facts and more importantly, they were not binding authorities.

7.In my view, the decision of the learned Master is completely within the ambit of the exercise of her discretion and did not fall outside the generous ambit within which reasonable disagreement is possible.

8.I see no merits in the defendant’s submission.

Other individual items

9.Regarding the remaining individual items, the defendant disagreed with the time allowed by the learned Master.

10.Invariably, the defendant submitted that the learned Master was under a palpable misapprehension as to facts.

11.However, only 2 points are established, namely,

(a) that by the time the Statement of Damages was filed, only 2 medical reports were disclosed (on item 12.1); and

(b) that by the time the Consent Summons dated 4 August 2022 was drafted, the defendant’s PI questionnaire was not yet filed (on item 24.1).

12.The other so-called misapprehensions were just repetition of objective facts and submission of the defendant.

13.In relation to item 16.2 of the bill (ie considering evidential documents as enumerated in the List of Documents), the defendant submitted that as liability was admitted at the time when the List of Documents was filed, there is no need for the plaintiff’s solicitors to prepare for trial. Therefore Order 62, Part II, para 62/App/20 of Hong Kong Civil Procedure 2023, Vol 1 is not applicable.

14.With respect, the submission of the defendant is flawed. Although liability was admitted at the early stage, the action did not stop there. There still remained the issue of quantum to be litigated until the time the parties reached agreement as they did at a later stage. That being the case, time should be allowed for the plaintiff to consider the documents in the List of Documents insofar as they relate to the issue of quantum.

15.The defendant also made it a point that most of the documents relating to quantum were disclosed to the motor insurer of the defendant at the pre-action stage and no further intensive perusal is required.

16.With respect, the submission does not make sense. The fact that those documents were disclosed at the pre-action stage did not relieve the handling solicitors of his or her professional duty to consider the evidence that the plaintiff required to prove his case.

17.By reasons of the aforesaid, and bearing in mind of the 2 misapprehension of facts as stated in paragraph 11 hereof, I am of the view that the time allowed by the learned Master on each and every of the individual items after review did not fall outside the generous ambit within which reasonable disagreement is possible.

18.Accordingly, I see no reason to interfere with the exercise of discretion of the learned Master. The defendant’s summons is therefore dismissed in its entirety.

Costs

19.At the outset of the hearing, Mr Kyle Chan, who appeared for the defendant, complained that the plaintiff made piecemeal and late reply to their draft hearing bundle index and that the plaintiff was late in serving the skeleton argument.

20.Mr Chan explained that the instructing solicitors had to contact the law costs draftsman before making a reply and the index was not in straight compliance with PD 5.4. Mr Chan accepted that he had been late in lodging the skeleton argument but submitted that no prejudice has been caused to the defendant.

21.In the circumstances, I am not inclined to depart from the general rule that costs to follow the event.

22.I make a costs order nisi that the defendant shall pay the plaintiff the costs of the defendant’s summons on party and party basis with certificate for counsel, to be taxed if not agreed.

23.In the absence of any application for variation by letter within 14 days from the date of this decision, the costs order nisi shall become absolute.

Mr Jack Y K Chan, instructed by CW Lawyers, for the Plaintiff

Mr Kyle Chan, of Winnie Leung & Co, for the Defendant