Lam Forn and Another v. Mak Ming t/a Ming Kee Woodwork (A Firm) and Another

Case No.HCPI 395/1997

Court

High Court CFI

Date30 Sep 1999

Judge—

Case Document

100%Judiciary

HCPI000395/1997

	1997 PI No.395
	(formerly HCA 3605/93)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

_______________________

BETWEEN
	LAM FONG and LAU CHI HUNG The Administrators of the Estate of NG SAU NAM, deceased	Plaintiff
	AND
	MAK MING trading as MING KEE WOODWORK (a firm)	1^st Defendant
	SHUN FAI CONSTRUCTION CO LTD	2^nd Defendant

_______________________

Coram: Master Kwan

Date of Hearing: 14 September 1999

Date of handing down decision: 30 September 1999

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Preliminary point on
Application for Review

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1. The preliminary point to be decided is a short one. It is whether Order 62 r33 (3) provide that at the time the Application for Review of Taxation is taken out, it is mandatory for a copy of the Objections to be delivered to all the other parties who had attended the taxation.

2. It is conceded that the Objections were served late. The Application for Review of Taxation was taken out on 5.7.99. but the defendants' solicitors were not served with a copy of the Objections until just before the hearing. I was informed that the Objections arrived on the Saturday before the hearing scheduled for Tuesday the 14^th of September.

3. The defendants argued that it was compulsory for the service of the Objections to be done in strict compliance with sub-rule (3). On a proper construction, the provisions of the rule was mandatory. Since the Application was in breach of the rule, the defendants were deprived of an opportunity to submit their Answers in accordance with Order 62 r33 (4). The defendants argued that they had been prejudiced. The court should exercise its discretion in their favour and bar this application for Review.

4. Order 62 r33 (3) & (4) provide:-

	(3)	Every applicant for review under this rule must at the time of making his application deliver to the taxing master objections in writing specifying by a list the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which, is objected to and stating concisely the nature and grounds of the objection in each case, and must deliver a copy of the objections to each other party (if any) who attended the taxation of those items or to whom the taxing master directs that a copy of the objections shall be delivered."
	(4)	Any party to whom a copy of the objections is delivered under this rule may, within 14 days after the delivery of the copy to him or such shorter period as may be fixed by the taxing master, deliver to the taxing master answers in writing to the objections stating concisely the grounds on which he will oppose the objections, and shall at the same time deliver a copy of the answers to the party applying for review and to each other party (if any) to whom a copy of the objections has been delivered or to whom the taxing master directs that a copy of the answers shall be delivered."

5. Sub-rules (3) and (4) provide the machinery for the Applicant to follow, and is designed to make the Applicant take the procedural steps for the hearing of the Review promptly. The time frame is not rigid. There is provision for the taxing master to reduce the time periods, for example words such as "or such shorter period as may be fixed by the taxing master" appear in sub-rule (4).

6. In the circumstances of the present case, service of the Objections on the defendants on the 11^th of September had the result of giving the defendants only one working day prior to the hearing to consider those Objections. There can be no question that the late service caused prejudice to the defendants. It was argued that if the defendants were given an opportunity to prepare their case together with the costs of the hearing on the 14^th of September, that prejudice would be redressed.

7. Having considered all the matters raised on this point I agreed with Mr Pirie. I find that the failure to serve a copy of the Objections to the defendants timeously was a procedural irregularity that can be remedied by allowing the defendants an adjournment with costs.

8. The Director of Legal Aid has now given his authority for the aided person's solicitor to make objections to the taxation. Regulation 12 of the Legal Aid (scale of Fees) Regulations will now apply. On that basis I give leave for the Application for Review dated the 5^th of July 1999 to be amended to reflect the change of circumstances. Re-service of the amended Application is dispensed with.

9. The hearing of the Application for Review will be set down for a 2 hour hearing, on a date to be fixed.

10. The costs of the hearing on 14^th September 1999 will be to the defendants against the Applicant in any event.

Master Kwan

Representation:

Mr Pirie of Counsel; Mr Chui of Messrs Chow, Griffiths & Chan solicitors for the plaintiff;

Mr Chan of the Legal Aid Department;

Mr Holt, Law Costs Draftsman instructed by Allen Chan & Co, solicitors for the defendant.