Kwok Fook on v. Kwock Chee Kwong and Another

Case No.HCMP 100/1970

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000100/1970

	Legal Aid No. 761 of 1969
	1970 No. 100

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

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BETWEEN
	KWOK FOOK ON (an Infant) by his father and next friend KWOK TAK KWAN	Plaintiff
	and
	KWOCK CHEE KWONG (a male)	1st Defendant
	LO HON SANG (a male)	2nd Defendant

Coram: D.L. Jones, Assistant Registrar in Chambers.

Date of Judgment: 23rd October, 1970.

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Review of Taxation

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1. This is a review of the Plaintiff's bill of costs that was taxed before me on the 29th September, 1970. The Plaintiff was an infant who sued by his father and next friend for damages in respect of personal injuries suffered as a result of a road traffic accident that occurred on the 3rd September, 1969. A legal aid was granted to the Plaintiff on the 10th December 1969 for proceedings to be issued in the Supreme Court.

2. On the 13th June, 1970 the action was settled by consent and with the approval of the court by a payment of $5,000.00 damages and agreed costs of $150. An order was also made for the Plaintiff's costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations Cap. 91.

3. From the evidence it appears clear that liability for negligence could not be attributed to the defendants and that it was in the best interests of the infant Plaintiff that the ex gratia offer that was made should be accepted. In fact it will be observed from item 9 of the bill that the offer was accepted by the Plaintiff on the 20th March, 1970. As a result a great deal of the work done by the Plaintiff's solicitors after this date was quite unnecessary and served no useful purpose.

4. As the amount of the settlement was below $10,000 the proceedings should have been brought in the District Court but the solicitors chose to issue an originating summons in the Supreme Court, although if they had exercised proper initiative they would have requested the Director of Legal Aid to amend the certificate for proceedings to be taken in the District Court.

5. The Plaintiff's solicitors originally filed a bill drawn in accordance with the scale set out under Order 62 of the Rules of the Supreme Court 1967 but this was struck out on the 2nd September, 1970 having regard to section 14(2) of the District Court (Civil Jurisdiction and Procedure) Ordinance, Cap. 336. Section 14(2) provides that where any proceedings in which the District Court has jurisdiction are brought in the Supreme Court costs shall be recoverable on such scale and in such amount as would have been recoverable if the proceedings had been brought in the District Court, unless the proceedings were so brought by leave of the Supreme Court or unless the Supreme Court otherwise orders.

6. The Plaintiff's solicitors then drew up a fresh bill on scale IV of the District Court Civil Procedure (Costs) Rules which was on the common fund basis. It is well known that upon the common fund basis there shall be allowed on taxation a reasonable amount in respect of all costs reasonably incurred.

7. My replies to the objections raised by the Plaintiff's solicitors are as follows: -

	1(a)	There is no such item 'attending receipt of a letter' set out in the District Court scale although under item 84 of the Supreme Court scale there is an item for attending receipt and perusing letter. Accordingly I disallowed this item and subsequent items of a similar nature .
	(ii)	If there had been the equivalent of item 84 of the Supreme Court scale in the District Court scale I would have disallowed this item and subsequent items under this head on the grounds that the costs were unreasonably incurred and unnecessary.
	(iii)	Not relevant.

(b)(i) & (iv)

Item 5 in the District Court scale to items which the Registrar is satisfied justifies a charge for perusal. I did not consider that either item warranted a charge and accordingly they were disallowed.

(g) & (h) As in 1(a) above.

	(i)	This was a letter of ...(illegible) and was not an expense reasonably incurred.
	(k)	As in 1(a) above.
	(l)	As in 1(a) above.

6, 7 and 8.

The Plaintiff's solicitors had already informed the two defendants and the Insurance Company that the defendants were held liable under items 3, 4 and 5 and it was therefore an unnecessary duplication of these items, afterwards to state that proceedings were to be instituted. One letter should have sufficed. Accordingly the items were disallowed on the basis that they had been unreasonably incurred.

	11.	As in 1(a) above.
	12.	In item 9 the solicitors had written to the defendants insurance company informing them that the offer made was acceptable to the Plaintiff. Accordingly I disallowed this item on the basis that it was unnecessary and unreasonably incurred.
	16.	The matter of quantum was unnecessary as liability was in dispute and the Plaintiff was only in a position to accept the ex gratia offer made.

17 and 18. (i)	A conference with counsel in addition to obtaining his opinion was an unjustifiable expense that was unreasonably incurred. Accordingly I disallowed this item.
(ii)	Although the legal aid certificate was granted for proceedings to be taken in the Supreme Court nevertheless when settlement had been effected for an amount under $10,000 the Plaintiff's solicitors should have requested that the certificate be amended for proceedings to be taken in the District Court.
(iii)	Not relevant.
(iv)	As set out above the Plaintiff had already accepted the amount offered by the Defendants.
(v)	As set out above the conference was unnecessary and unreasonably incurred.

	21.	As in 1(a) above.
	23.	As above.
	25.	As in 1(a) above.
	27.	As in 1(a) above.

28 and 29.

Under item 1 in the scale, instructions to sue, the fees that can be allowed range from $6 - $25, and for preparing the originating summons item 2 in the scale, $6 - $40. Having regard to the fact that it was a mere formality to obtain the court's approval I allowed the minimum in respect of each item.

	30.	This expense was unnecessary in view of the fact that the Insurance Company was already aware of the claim having been informed by the Plaintiff's solicitors on the 24th January, 1970.
	34.	As above.

35 - 37(i)	This expense was unnecessary as the Defendants' solicitors, Messrs. Johnson, Stokes & Master had accepted service on behalf of the defendants.
	An affidavit of service cannot be considered to be an expense reasonably incurred when the Plaintiff's solicitors knew that the Defendants were represented and would attend the hearing of the application for settlement.
	Accordingly these items were disallowed.
(ii)	Unnecessary as set out above.
(iii)	As above.

	38.	A consent order in the Supreme Court under item 109(a) of Order 62 of the Rules of the Supreme Court provides that a solicitor is entitled to charge $30. The sum of $30 which was claimed in this bill was charged under item 7 of the District Court scale. However this item relates to a case which is heard in open court where as the appropriate item is item 9(a) where the scale ranges from $10 - $60. The application was by consent and the time involved was 5 minutes. As a result I allowed a fee of $10.
	(ii)	I agree but the solicitors in accepting $5,000 were fully aware that the proceedings should have been instituted in the District Court.
	(iii)	The amount allowed is in my opinion reasonable.
	39.	This item has been unreasonably incurred in as much as it merely confirmed the approval of the settlement by the court which had been agreed to by the Plaintiff three months previously.

	(B.L. Jones)
	Assistant Registrar
	23rd October, 1970.

Representation: