Roderick Miller v. The Law Society of Hong Kong

CACV 529/2018

[2026] HKCA 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 529 OF 2018

(ON APPEAL FROM THE ORDER OF THE SOLICITORS’

DISCIPLINARY TRIBUNAL OF 2^ND OCTOBER 2018)

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D E C I S I O N

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INTRODUCTION

1.This is Mr Miller’s application for leave to appeal to the Court of Final Appeal against the judgment dated 9 June 2025 (“Costs Decision”). Mr Miller raises the following questions said to be of great general or public importance:

(1)  What circumstances should the SDT or Court take into account when assessing the quantum of costs payable under a costs order made pursuant to the Legal Practitioners Ordinance, Cap 159 (“LPO”), Section 10(2)(e)? (“Question 1”)

(2)  Should the SDT or Court take into account the nature and seriousness of the conduct found to be proved, the circumstances of the breach and other relevant circumstances when deciding the quantum of costs? (“Question 2”)

(3)  What circumstances should the SDT or Court take into account when determining what would be a reasonable contribution under LPO Section 10(2)(e)? (“Question 3”)

(4)  Should the SDT or Court assess a reasonable contribution towards the costs so as to constitute a "punishment"? (“Question 4”)

(5)  Should the SDT or Court take into account only the effect on the solicitor due to circumstances such as his financial capability (or impecuniosity) and appropriateness of the amounts when deciding what would be a reasonable contribution? (“Question 5”)

(6)  What is the proper test for the appropriateness of the amounts when deciding what would be a reasonable contribution? (“Question 6”)

(7)  In what circumstances should the SDT or Court require further evidence where there is a challenge to the indemnity principle? (“Question 7”)

(8)  Where there is a presumption of a solicitor’s retainer to pay a reasonable amount of profit costs, and a paying party challenges this, is this evidential onus on the paying party to prove otherwise or is the onus on the receiving party to prove that there is? (“Question 8”, introduced in Mr Miller’s reply submission)

2.The Appellant also seeks leave to appeal based on the “or otherwise” limb of Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“HKCFAO”).

3.An order on costs involves the exercise of discretion. The applicant must demonstrate that the exercise of discretion is plainly wrong before it can ask the Court of Final Appeal to exercise the discretion afresh.

4.In David John Kennedy v Kelly Cheng (2012) 15 HKCFAR 657, §16, Chan PJ laid down the principles for an appeal against a costs order:

“Taxation is an exercise of discretion by the taxing master. The appellate court would not normally interfere with the exercise of such discretion unless it can be shown that there was an error of law or in the applicable principles; or the taxing master has taken into account irrelevant matters or failed to take into account relevant matters; or the assessment was plainly wrong or fell outside the generous ambit within which a reasonable disagreement was possible. See Yue Kwok Ying v Mak Shiu Tong, FACV No 4 of 2004, 14 February 2006, unreported, and Nam Chun Investment Co Ltd v Director of Lands (2007) 10 HKCFAR 523. When this happens, the appellate court may have to exercise the discretion afresh.”

5.This principle is equally applicable to an appeal against a summary assessment of costs or determination of reasonable contribution under s.10(e) of LPO.

6.In our view, none of the Questions raised are arguable.

QUESTIONS 1 & 2

7.Mr Miller submits that this Court wrongly relied on the authorities cited in §4 of the Costs Decision, which were concerned with whether a costs order should be imposed and the basis for taxation. He submits that they were not factors relevant to the assessment of the quantum of costs and do not appear in O.62, r.9(4)(b) RHC that governs summary assessment. The Costs Decision has effectively legislated for SDT by providing for a non-statutory summary assessment procedure and then deciding what a reasonable contribution is.

8.This complaint has no basis. §4 of the Costs Decision, expressly required consideration of “the nature and seriousness of the conduct found to be proved, the circumstances of the breach and other relevant circumstances when deciding the quantum of costs”. These factors plainly affect whether items of costs allegedly incurred by the Law Society were necessary or proper, the quantum that should be allowed and whether any contribution would be reasonable. An example can be found in §89 of the judgment on the appeal dated 29 July 2024 that the Court has to ensure that Mr Miller would only bear costs for the 10 Complaints proved and not other costs of investigation.

9.Under s.10(2)(e) LPO, whilst the SDT does not have express power to do summary assessment, there is no reason why the SDT or the Court on appeal should not conduct the expedient and costs saving exercise of summarily assessing the costs of the Law Society before deciding on the reasonable contribution that a paying party has to pay.

10.The attack on the quantum allowed of Law Society’s costs does not show that the assessment was plainly wrong or fell outside the generous ambit within which reasonable disagreement was possible.

QUESTIONS 3 TO 6

11.These Questions effectively repeat Questions 1-2 with the added complaint that the quantum of costs ought not to be a “punishment” and that §24 of the Costs Decision effectively imposed a “double penalty” on top of the fine.

12.Mr Miller has read §24 of the Costs Decision out of context. There, this Court was discussing about what was reasonable contribution and instalment payments, but not a fine/penalty for the proven charges. The word “punishment” was no different from the oft-used phrase that a losing party should be “penalized” in costs.

QUESTION 7

13.Mr Miller refers to the Chorley principle, named after The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872, which held that recovery of profit costs by solicitors acting for themselves but represented by their own firms is permitted even where he “incurs no liability to the firm; but he suffers loss for which under the indemnity principle he ought to be compensated, because the firm of which he is a member expends time and resources which would otherwise be devoted to other clients. The only sensible way in which effect can be given to the indemnity principle is by allowing those costs” (emphasis added).

14.Further, where there is no written retainer but the solicitor can establish that he has performed useful work for the client, the solicitor may be entitled to recover his reasonable fees by way of a quantum meruit claim: Professional Conduct, §102.1; Stikeman Elliot (a firm) v Wong Ming Yuen, CACV 113/1983, 10 Feb 1984.

15.We do not consider Question 7 to be reasonably arguable.

(1)  Although the authorities in paragraphs 13-14 above were not referred to us and hence not cited in the Costs Decision, this Court actually applied those principles and awarded Chan & Ho some costs (§20(1) of the Costs Decision).

(2)  The Law Society had actually challenged whether the indemnity principle has been breached and whether Mr Miller had a non-contingent liability to pay Chan & Ho (§18 of the Costs Decision).

(3)  The summary assessment and assessment of reasonable contribution was a “final” and not interlocutory matter. It was incumbent on Mr Miller to place before the Court evidence to support his claim on costs.

(4)  This Court did try to investigate. We asked for the fees notes of Mr McGowan and Mr Firmin on our own motion and discovered that in fact the indemnity principle was breached. We also gave Mr Miller an opportunity to file further evidence and submission to answer the Law Society’s challenge, but he failed to do so, twice (by 24^th and 28^th March 2025) (§19 of the Costs Decision). The problems with Mr Miller’s costs statement justified the Law Society’s challenge (§20 of the Costs Decision). The quantum of costs awarded was fact-sensitive.

16.It follows that any injustice arising out of Mr Miller’s failure to recover the bulk of his costs claimed was of his own making. There is no reason to grant leave under the “or otherwise” limb.

QUESTION 8?

17.Not being included in the Notice of Motion, Question 8 would not be considered.

CONCLUSION

18.We are not satisfied that any of the 7 Questions is arguable or of “great or general public importance” or that the “or otherwise” limb should apply. The application is dismissed.

19.On a nisi basis, costs should be to the Law Society, to be summarily assessed on paper on 20 January 2026.

Chan & Ho, for the Appellant

Mr Jason Toms, Solicitor Advocate of M.B. Kemp LLP, for the Respondent