Pang Yau v. Cheung Kwok-hing and Another

HCA002215A/1976

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Coram: Cons, J.

Date of Judgment: 8th March, 1978.

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JUDGMENT

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1. This is an application to review a taxing master's decision in respect of a particular fee paid to the plaintiff's counsel. It is brought under Order 62 rule 35. The plaintiff is legally aided and counsel for the Director also appears in support of the application. Neither defendant has been present or represented. In accordance with sub-rule (3) the application was heard in chambers but I have adjourned my decision into open court for I feel that it may be of interest to other taxing masters and to the profession generally.

2. The plaintiff's cause of action arose from a traffic accident in which he received serious injuries. He first lodged his claim in the District Court. Later he transferred it to this court and it was set down in the running list, being expected to last for two days. It was called for trial on the 1st March last year. On that morning the plaintiff appeared by solicitor and counsel. The two defendants did not appear at all. At that time they were acting in person although they had originally been represented by solicitors.

3. The trial did not proceed that morning. Instead it was adjourned to dates to be fixed by the Clerk of the Court. The following day that gentleman assigned the 4th and 5th July.

4. On the 4th July the plaintiff was again represented by the same counsel and solicitor. The defendants appeared in person. And the case was disposed of comfortably within the morning. Evidence was called on both sides and counsel made a closing submission. Judgment on liability was given immediately in favour of the plaintiff. The assessment of damages was reserved and given later on the 21st July. The total sum was a little over $100,000.

5. The plaintiff's bill of costs submitted to the taxing master included a brief fee to counsel in the sum of $3,000 and a fee for the 4th July - which has been referred to throughout as "a refresher" - in the sum of $1,500. The master taxed down the brief fee to $2,500. No complaint is made as to that. But then he completely disallowed the refresher. I am asked to reinstate that item.

6. Part II paragraph 2 of the First Schedule to Order 62 deals with counsel's fees. Sub-paragraph (4) reads as follows:

"When a trial or hearing at which counsel appears lasts more than 5 hours there may be allowed a refresher fee or fees the amount of which shall be in the discretion of the taxing officer".

7. The total time that plaintiff's counsel spent in court on the three occasions that he attended was two hours and thirty-five minutes. Therefore, said the taxing master quite simply, he did not qualify for a refresher.

8. Present counsel for the plaintiff, who is not the counsel who appeared at the trial, contends that the taxing master misconstrued the rules; to "tot up" the hours from day to day, as he did, could work hardship to counsel if there were early or frequent adjournments; therefore the proper construction is to apply the rule only to a trial or hearing which lasts more than five hours on any one particular day, that is to one that extends beyond ordinary court hours. With respect to counsel, to do that would involve reading into the sub-paragraph words which are simply not there. And that I cannot do. I agree there may be hardship in exceptional cases. It is probably for this reason that the English rules were amended in 1972 to give taxing masters a discretion to work on a daily basis instead of a five-hourly basis. But that variation has not been adopted in this jurisdiction. The words as they stand are quite clear. The taxing master was correct to apply them as he did.

9. Counsel launches a further argument based on Order 62 rule 32 and in particular on sub-rule (2) which reads:

"On a taxation in relation to which rule 29 or rule 31(2) has effect and in other special cases costs may at the discretion of the taxing master be allowed-

The speciality of the present case, he suggests, arises from the fact that the defendants were solely to blame for the adjournment of the first hearing. On whether that is necessarily so I deliberately express no opinion, for I do not know why the judge on that morning did not proceed with the trial under Order 35 rule 1(2). With every respect to wherever it may be due, I find it difficult to reconcile the reason given by present counsel, on last minute instructions, with the endorsement on the court file. However even assuming for the moment that the whole blame did lay with the defendants I do not think this will assist the plaintiff. To my mind the rule on which he seeks to rely applies only to solicitors' costs. This view is consistent with the English Practice Directions mentioned at page 991 of the 1976 edition of the White Book.

10. Two further arguments are based on rule 28. Sub-rules (1) and (2) of that rule provide:

11. Counsel suggests that the refresher was in the present instance "necessary and proper" for the attainment of justice. The argument is, I think, based on the suggestion that after a lapse of some months counsel would have to prepare the case all over again for the resumed trial. In effect I am asked to revive in modern dress the obsolete "term refresher". It may be that in some circumstances it would be right to do this. But I do not think the present circumstances are appropriate. This was neither a difficult nor a complex case. Nothing had occurred during the adjournment which would have required the fresh attention of counsel. With the aid of his notes made in preparation for the original date of trial experienced counsel should have had no difficulty in refreshing his memory in a very short space of time.

12. Sub-rules (3) and (4) of rule 28 continue:

Where a successful legally aided party's costs are ordered to be "taxed in accordance with the Legal Aid Scheme" those costs which are not to be recovered from the other side on a party to party basis are taxed on a common fund basis and recovered by the Director from the damages awarded to the aided party. It was suggested that I should invoke sub-rule (3) in this context, thereby allowing the Director, and ultimately counsel, to recover the refresher fee, albeit from the legally aided party and not the defendant. I have grave doubt whether sub-rule (3) should be employed to achieve that end, but even if it could I do not think it right in these circumstances that it should. The proper fees to be paid to counsel in legal aid cases are those That are or would be allowed on taxation: section 20 of the Legal Aid Ordinance and Regulation 4 of the Legal Aid (Scale of Fees) Regulations. I do not see why a legally aided party should be burdened with fees that are not properly incurred. I should also add, for the sake of record, that counsel for the Director does not support the plaintiff on this particular argument.

13. Finally it is suggested that the taxing master's decision will place counsel instructed in legal aid cases at some disadvantage in comparison with those instructed privately. I stopped counsel from explaining this matter in further detail for it seemed to me a matter for the Director's consideration rather than my own.

14. For the reasons I have given this application to review the taxing master's decision is refused.

Representation:

Mr. Martin Lee (Fairbairn, Kwok & Wang) for the plaintiff/applicant.

Defendants absent.

Mr. Moss (Director of Legal Aid) in support of the applicant.