The Bar Council v. Sio Chan in, Devin

CAMP 50 /2023

[2024] HKCA 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 50 OF 2023

(ON AN INTENDED APPEAL FROM THE DECISION AND ORDERS OF THE BARRISTERS DISCIPLINARY TRIBUNAL
OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MADE ON 10 OCTOBER 2022)

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BETWEEN

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DECISION ON COSTS

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Hon Kwan VP (giving the Decision on Costs of the Court):

1.On 9 August 2024, we handed down our judgment dismissing the appellant’s application for extension of time to appeal against the decision and orders of the Barristers Disciplinary Tribunal dated 10 October 2022 and for stay of execution of the Tribunal’s order, as there is no prospect of success on any of the ten intended grounds of appeal.  We made an order nisi that that the appellant should pay the costs of the Bar Council on an indemnity basis and gave directions on the lodging of a statement of costs and objections thereto, with a view to making a summary assessment.

2.On 23 August 2024, the appellant issued a summons seeking to vary the costs order against him to party and party basis.

3.We ordered indemnity costs for the reasons as stated in §54 of our judgment:

“The Bar Council seeks costs on an indemnity basis as the application is totally unmeritorious and because of the unsatisfactory manner the application bundles were prepared. We are inclined to agree.”

4.Mr Edward Chow submitted on behalf of the appellant that indemnity costs are almost always used as a mark of disapproval by a court for the conduct of one of the parties, and should be ordered only when that party is deliberately obstructive and uncooperative, or that the hearing has been prolonged by false allegation of facts.  In this instance, there were no findings that the appellant’s conduct during investigations and the subsequent proceedings was consistently and deliberately obstructive and uncooperative, nor was he accused of any such reprehensible conduct.  It is in principle more appropriate to award party and party costs against the appellant.

5.The authorities cited by Mr Chow in support of his contention[1] dealt with the discretion of the Solicitors Disciplinary Tribunal whether to order a taxation of costs on an indemnity basis or payment of an amount that the Tribunal considers is a reasonable contribution towards those costs, under section 10(2)(e)  of the Legal Practitioners Ordinance, Cap 159.  We do not understand that the costs discretion of the Tribunal is circumscribed to those specific instances mentioned in the judgments.  They are merely examples given by the court.

6.Ms Catherine Wong submitted for the Bar Council that the discretion of this court to award indemnity costs under Order 62 of the Rules of the High Court is not fettered or circumscribed beyond the requirement that indemnity costs must be appropriate.  An award of indemnity costs is not confined to cases brought with an ulterior motive, for an improper purpose, or where there was some deception or underhand conduct of the losing party.  The attributes of the parties and the character of the proceedings are not irrelevant to the exercise of the discretion to award indemnity costs.  The grounds for making such an order must be connected with the case and might extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation[2]. The pursuit of unarguable, weak or thin points, or points plainly wrong in law, can result in indemnity costs[3].

7.Ms Wong submitted that the circumstances of the present proceedings justify an order for indemnity costs.  She made the following points:

(1)  The appellant’s application for extension of time to appeal is totally unmeritorious and should not have been brought[4]. The all-encompassing approach running ten intended grounds of appeal should also be disapproved.

(2)  In relation to the appellant’s manner of conducting the proceedings, the revised application bundles (which run up to five volumes), were filed and served belatedly in breach of the directions of the Registrar.  Further, in breach of Practice Direction 4.1 §9, they were an “indiscriminate reproduction” of the hearing bundles before the Tribunal.

(3)  These proceedings arose out of disciplinary proceedings brought by the Bar Council in the public interests of upholding the professional standards and ethics required of barristers.  In response to the appellant’s unmeritorious application, the Bar Council had to incur legal expenses out of its own funds. As a matter of fairness, the Bar Council should be allowed to recover from him in full the costs it had incurred.

8.We agree with Ms Wong’s submissions.  We dismiss the application to vary the costs order from indemnity costs to party and party basis.

9.We turn to consider the statement of costs lodged by the Bar Council on 23 August 2024 and the appellant’s list of objections of 6 September 2024.

10.We note that a concessionary hourly rate of $4,000 has been adopted for the highest fee earner.  There is no valid ground for disallowing all the charges of the fee earners who are solicitors just because counsel was engaged, even if costs were to be assessed on a party and party basis.

11.There is no reason to reduce the charges of photocopying 4,200 pages of documents or the attendance by litigation clerk for the service of documents.

12.We think there is room to reduce the charges for items C1, C3, C4, D1, D2 and E for excessive time, even on an indemnity basis.

13.We assess the costs to be paid by the appellant to the Bar Council on its statement of costs at $252,200.

14.Costs of the application to vary the costs order nisi, which have not been included in the statement of costs, should follow the event.  This is an order nisi.  Costs will be assessed summarily if there is no agreement within 14 days of the handing down of this decision.

Mr Chow Lap San Edward, instructed by Yu Sun Yau Mak & Lawyers, for the Respondent (Appellant)

Ms Catherine Wong, instructed by Keith Lam, Lau & Chan, for the Applicant (Respondent)