Idmiston Ltd v. Asiatic Fortune Co Ltd and Another

HCA007892/1987

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

1986, No.A7375

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BETWEEN

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1987, No.A7889

BETWEEN

(By Counterclaim)

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1987, No.A7891

BETWEEN

(By Counterclaim)

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1987, No.A7892

BETWEEN

(By Counterclaim)

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Coram: Master Michael Jennings

Date:

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Review of Taxation by Taxing Master
Master's Reasons for Decision

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1. The Bill of Costs in this taxation related to an interlocutory application by the 4th Defendant for security for costs to be provided by the Plaintiff. The Bill was taxed by me on 19th March, 1990.

2. On this Review, the Objections related entirely to the quantum of counsels' fees allowed by me.

Fees of Mr. Ian Hunter, Q.C.

3. Mr. Hunter's fees as originally claimed amounted to a total of $590,402.50. After taxation, the total was $545,999.50. The Objections fell into 2 categories, firstly that the fees allowed to Mr. Hunter were excessive, and secondly that I allowed a second brief fee rather than merely a refresher.

Fees excessive - objections 2 - 9 & 11 & 12

4. I was referred on Review, as I had been on Taxation, to the case of Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. & Others in which Mr. Justice Rhind said that the proper measure of counsel's fees is "what a hypothetical counsel capable of conducting the case effectively would be content to take on the brief". Dealing with the use of London counsel, the Judge said:

"Noreover, if it turned out in a particular case that the combined costs of brief fee, and expenses of travelling time, air fares and accommodation were about the same for London counsel as for the hypothetical Hong Kong counsel's brief fee alone, then I would regard it as proper to allow London counsel's expenses. On the view I take, it is artificial to consider overseas counsel's brief fee in isolation from the other items of expenditure involved in getting him here. The court should look at the global figure of overseas counsel's brief fee and other expenses for the purpose of comparing the price of overseas counsel with the hypothetical counsel."

5. I approached the question of the fees to be allowed in respect of Mr. Hunter on the basis of that "global figure" test. At the review, I had before me 2 pieces of information not available to me at the taxation. On behalf of the Defendant, Miss Eu placed considerable reliance upon the fees charged by Mr. Charles Ching, Q.C., who appeared for the Defendant in the application. On the other hand, Mr. Cotterill for the Plaintiff was able to tell me about a Bill of Costs taxed against the Plaintiff in respect of another interlocutory applications. That Bill was dated May, 1988, and was the Bill of the 4th and 5th Defendants. The fees and expenses of Mr. Robin Potts, Q.C., a London silk, amounted to $546,893.12.

Two Brief fees - objection 11

6. There seems to be no firm rule whereby I should have disallowed the payment to Mr. Hunter of 2 brief fees, and only allowed 1 brief fee followed by a refresher. In my view, there are unusual cases where a second brief fee is proper, and Mr. Cotterill referred me to the case of Wakefield & Others v. Brown, Court of Common Pleas Vol.IX, p.410, which is an old authority supporting this view. Mr. Cotterill's affidavit explained that in the period between the delivery of the 2 briefs no less than 436 pages of affirmations had been added to the volume of the papers which counsel had to study before the eventual hearing of the application. In my view, this was an exceptional case where the second brief fee could properly be allowed.

7. I remain of the view that the fees of Mr. Hunter as taxed are proper.

Fees of Mr. Barrie Barlow

Objection 1

8. It is objected that Mr. Barlow's brief fee of $25,000 (which I had taxed down from $30,000) was excessive for a 30 minute hearing before the laster. It was, however, agreed at the Review that the hearing had been set down for a full day, and just happened to go short on the day. I consider that the brief fee as taxed is proper.

Objection 13 & 14

9. It is objected that 2 brief fees of $60,000 (taxed down by me from $70,000 and $75,000 respectively) were excessive and that the second brief fee should have been replaced by a refresher. I allowed the second brief fee for the same reason as I allowed it for Mr. Hunter. Having regard to the brief fees allowed to his leader, I still consider the brief fees allowed to Mr. Barlow are reasonable.

Objections 15, 16 & 17

10. It is objected that the 2 refresher fees of $20,000 each are excessive, the comment being made that they exceed those of Mr. Barlow's leader (which were $19,125). I consider that having regard to the fee on the brief, the refresher fees are reasonable, and that those of Mr. Hunter are surprisingly low.

11. On Review, I declined to reduce further counsels' fees as taxed.

Representation: