John Asikas and Another v. The National Insurance Co of New Zealand Ltd

Case No.HCA 742/1969

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000742/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 742 OF 1969

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BETWEEN
	JOHN ASIKAS and THEOFANIS DAVAS carrying on business in partnership under the style of Opal Australia	Plaintiffs
	and
	THE NATIONAL INSURANCE COMPANY OF NEW ZEALAND LIMITED	Defendants

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

Date of Judgment: 15th August, 1970.

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DECISION

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1. This is a review pursuant to O.62 rule 33 of the Rules of the Supreme Court 1967 limited to items numbered 250 and 251 of the defendant's bill of costs that was taxed by me on a party and party basis on the 17th July, 1970.

2. The action was dismissed with costs on the 24th June, 1970 when the plaintiff failed to appear. The time in Court occupied twenty minutes, and the case was certified fit for two counsel.

3. Item 250 relates to five refreshers at $1,000 per refresher payable to counsel Mr. D.A.L. Wright and 251 to five refreshers of the same amount payable to counsel Mr. A..Zimmern.

4. The fees were claimed under what is called the Vine Formula. This formula according to the defendant's solicitors is a local rule that was agreed upon several years ago between Mr. P.A.L. Vine, the then President of the Law Society and the then Chairman of the Bar Association.

5. The Vine Formula is as follows:-

If a solicitor requests Counsel to reserve five days or more fixed for the hearing of any proceedings, and Counsel undertakes to appear during such days to conduct such proceedings, the solicitor agrees to pay Counsel's Brief fee and half the unused Refreshers in the event:-

	(a)	of the solicitors not releasing Counsel at least two months before the first of the days so reserved, or where the long vacation of the supreme Court intervenes, at least two months plus the length of the long vacation before the first of the days so fixed.
	(b)	of Counsel informing the solicitor before the time stated in sub-paragraph (b) has arrived that the dates reserved are required for another case, and the solicitor requests the Counsel nevertheless to reserve such dates.

Provided that such fees shall not be payable if the dates so reserved are not utilised for the hearing by reason of the proceedings being adjourned by the Court of its own motion or on account of illness of the lay client, of the opposite party, or a material witness (Counsel having agreed an adjournment on any such grounds or the Court granting the adjournment on the Application or the opposite party notwithstanding opposition) or on account of some cause other than the default of the lay client or the solicitor."

6. In this case briefs were delivered and 9 days were reserved for the hearing. Accordingly the defendant's solicitors maintain that the Vine Formula automatically applies.

7. The defendant's solicitors said that no English authorities are applicable as the Vine Formula is a local rule. An English case Macleod v. Thrupp (1892) 37 Sol. Jo. 31 decided that refreshers and brief fees will not be allowed unless counsel attends court on the day applicable.

8. I have been asked by the defendant's solicitors to express my view as to whether or not the Vine Formula is optional. I consider that this issue is not relevant to my decision and it is therefore unnecessary for me to give an opinion.

9. Whatever agreement may have been made between the Bar Association and the Law Society with regard to the payment of counsel's fees is in no way binding upon the taxing master who has an unfettered discretion to exercise.

10. I refer to O.62 Pat II 2(4) of the Rules of the Supreme Court 1967 which provides that:-

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".

11. This is taken verbatim from the equivalent English rule.

12. It is therefore abundantly clear that no refresher can be claimed unless the trial or hearing lasts more than 5 hours.

13. The so-called Vine Formula is not relevant to a party and party taxation for relying upon the English authorities which are embodied in our rules to which I have referred, refreshers cannot be charged where counsel has not appeared in Court. Accordingly I adhere to the decision that I made on the 17th July that items 250 and 251 will be disallowed.

	(B.L. Jones)
	Assistant Registrar
	15th August, 1970.

Representation:

Mr. J.R. Wimbush of Deacons for Defendants.

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