Au Miu Ling v. Wong Ding Yick

FCMC006671/1996

FCMC No. 6671/1996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6671 OF 1996

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Coram: Master Barnes in Chambers

Dates of Hearing: 14 January 2000

Date of Handing down Decision: 19 January 2000

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REVIEW OF TAXATION

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Background

1. The Petitioner was granted legal aid on 22.5.1996 to institute divorce proceedings against the Respondent. On 13.10.1997, the Petitioner was granted Decree Nisi while the custody of the two children was granted to the Respondent with reasonable access to the Petitioner. Costs was reserved. The issue of ancillary relief was not disposed until 19.3.1999 when the Respondent was ordered to pay a lump sum of $250,000 to the Petitioner. The Respondent was ordered to pay the taxed costs of the proceedings including the costs reserved.

2. In due course, the bill of costs prepared by the Solicitors representing the Petitioner was set down for taxation on 10.11.1999. As the Respondent was absent on that occasion, I granted leave for Ms. Davies of the Legal Aid Department to represent the Respondent and duly taxed the bill. Solicitors for the Petitioner being not satisfied with some of the items, applied to review my decision and the matter was heard on 14.1.2000.

3. Solicitors for the Petitioner has very helpfully prepared detailed written reasons why they objected to those items listed in the Objection to the Taxation. I will deal with each item in turn:

Item (1) and (3)

4. These concerned the Fee Earners. Objections were raised in respect of two fee earners, i.e. Mr. Solomon Chong (SC) who was admitted in 1983, and Miss Lily Chien (CL) who was admitted in 1981, regarding their hourly rates for work done after 21.7.1997.

5. It is argued that the case is complex in that the aspect of ancillary relief, in particular the estate of the Respondent's deceased father in China, was such that both SC and CL had to exercise particular expertise. Since both SC and CL had chosen not to claim an upwardly adjusted amount to reflect the same, but the ceiling amount applicable to a solicitor of over 10 years standing in accordance with the circular dated 1.2.1999 issued by the Law Society, a reduction of $200 upon taxation is unfair and inconsistent.

6. I accept that it is not usual in a case of this nature for the solicitors to trace assets of the deceased parent of a party. The need to investigate and trace those assets no doubt makes the Petitioner's application for ancillary relief more difficult. However, on the evidence before me, I do not accept that the case is complex. Having said that, I do accept that in view of the fact that both SC and CL are charging the normal rate for a solicitor of their respective standing, the reduction of $200 is indeed unfair to them. I therefore review my decision and allow their respective hourly rate at $2,600.

Item C(4) (1) & (3)

7. These claims arose as a result of the Litigation Clerk (LC) going to the PRC to conduct search and investigation regarding the assets of the Respondent's late father in the PRC. These claims were disallowed on taxation on the basis that they failed to pass the proper and necessary test. The Director of Legal Aid has given approval for the engagement of an agent in the PRC to do the necessary investigation and there was no reason why the LC needed to go.

8. For the purpose of the Review, Mr. Chong Chung Hing of the Petitioner's solicitors swore an affirmation dated 18th November 1999 setting out reasons why such costs should have been allowed on a party and party basis. Mr. Chong deposed that after the Director of Legal Aid had given authorization to retain an attorney in the PRC to conduct search on the PRC properties, the firm was not able to proceed due to the lack of complete addresses. The Petitioner was only able to give vague information which was not useful for the retained attorney to proceed. On the request of the China attorney, the Petitioner and a law clerk of the firm went to China to assist in the search. The Petitioner stayed for one day but the LC had to stay on for two more days, accompanying the China attorney to go from one government bureau to another. As a result of the fruitful search, the Petitioner obtained a lump sum award of $250,000 from the Respondent.

9. Ms. Davies relied on the GUIDANCE TO SOLICITORS HANDLING CIVIL LEGAL AID CASES issued by the Legal Aid Department and contended that the authorization of the Director of Legal Aid did not extend to such expenses incurred by the LC, and that since no additional authorization was sought, the same should not be allowed.

10. Having considered the matter with the additional information by way of the affirmation, I am satisfied that such costs incurred are proper and necessary. I review my earlier decision and allow this item in full.

Item D17

11. This item relates to the drafting/revising of the 2nd affirmation of the Petitioner dated 21.1.99. Of the 2 hr. 30 min. claimed, I have taxed off 1 hr. 15 min. Solicitors for the Petitioner submitted that in view of the contents and that the fee earner is only a junior solicitor, the quantum allowed is too low.

12. Having reconsidered the matter, I am prepared to review this item to the extent that 2 hrs. are allowed. 30 minutes will be taxed off.

Item D20

13. This item relates to the drafting /revising of the Interrogatories dated 5.2.99. Basically the same objection as per Item D17 is advanced here. Having reconsidered the matter, I accept the submission and review my earlier decision. I allow this item in full.

Item D22

14. This item relates to the costs of drafting translations. 5 hrs. by PY was allowed, but at $600 per hr. as opposed to the $1,800 claimed. Solicitors for the Petitioner attempted to justify the costs on the basis that the service of a solicitor is required for these documents in view of the technicality involved. Alternatively, if the job was delegated to LE or TS, the time required would have been more than 5 hrs. The handling solicitor would have to approve and engross the translation in any event. Lastly, the time spent by the handling solicitor in considering the draft translations had not been taken into account.

15. Ms. Davies relied on the Departmental circular No. 48/93 of the Legal Aid Department where the hourly rate charged for translation of documents by the Chinese Language Officers of the Legal Aid Department for the use of the District Court was $600.

16. Bearing in mind that the circular refers to translation of statement of witnesses and that the circular was dated 1993, I do accept that adopting the hourly rate of $600 is not reasonable. I am prepared to allow the costs on the basis that the actual drafting was done by a trainee solicitor and then approved by the handling solicitor. I am of the view that 6 hrs for TS (at $650 per hr.) plus 45 min. for SC (at $2,600 per hr.) reasonable and I review this item accordingly.

Item D26

17. This item relates to the drafting of the Skeleton Argument filed on 18.3.1999. Solicitors for the Petitioner submitted that the fee earner need 'to go through the file, to marshal the facts and to review the pleadings & affirmations' when preparing the documents which took longer than the 45 minutes allowed. Having regard to the seniority and experience of SC, and upon reconsideration of the matter, I am prepared to allow 1 hr. for this item and I review my decision to that extent.

Item F

18. This item relates to the research on law and authorities. Of the 2 hrs. claimed by SC, only 1 hr. was allowed. The ground for review is mainly that the actual time spent by SC was 2 hrs. supported by attendance note.

19. While not in any way implying that SC did not spend the 2 hrs. as recorded on research, I am of the view that it would not have been reasonable for a solicitor of SC's standing and experience to have spent two hours to research this area of the law and the relevant authorities. I maintain my original decision and the application for review is refused.

Item G

20. This item relates to the General Care and Conduct. Of the 1 hr. 30 min. claimed before 21.7.97 and 2 hrs. after 21.7.97, 15 min. each was taxed off. The grounds for review are that the time spent by SC in approving the drafting of documents by supporting staff has not been taken into account, and that the principle of allowing "5 min. per month during the course of the proceeding" had wrongly been taken into account here as such principle only applies when there is one handling solicitor throughout the proceedings.

21. The "practice" of some Masters in allowing "5 min. per month during the course of the proceedings" under General Care and Conduct enables the Supervising solicitor to be compensated for time he has spent on supervising his/her junior staff. I do not see any ground in differentiating cases involving one or more than one handling solicitors. However, I do accept that the time spent by SC in approving the drafting of documents by the supporting staff had not been adequately reflected in the original taxation and I review my decision to allow this item in full.

Costs

22. As the review is successful in all but one of the items, costs should follow the event. However, in view of the extent of the review, I do not think another taxation should take place should parties not come to terms of agreement regarding the costs, I therefore make the following nisi order which is to be made absolute if no application to review is made within 14 days:

"Costs of the Review be to the Petitioner. Should no agreement be reached, parties to make an appointment (15 min.) before me for my consideration if a global sum should be ordered."

Representation:

Mr. Stephen So, Law Costs Draftsman, representing Solomon C. Chong, Solicitors for the Petitioner.

Respondent in person, but authorized Ms. Davies of the Legal Aid Department to represent him.