Lai Kwok Wai Sim v. Lai Wo Cheung (or Cheong)

HCMC000208/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 208 OF 1969

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

Date of Judgment: 28th day of August, 1970.

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DECISION

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1. This is a review under O.62 rule 33 of the Rules of the Supreme Court, 1967, with regard to items numbered 7, 30, 31, 33, 39, 45 and 46 of the Petitioner's bill of costs that was taxed by me on the 31st July, 1970. Item 7. The Petition is a very simple one alleging adultery and is only two pages long. A fee for settling such a petition in England would be £3 5s. 6d. Having regard to local conditions I allowed a fee of $150. I consider that a fee of $250 is excessive and unreasonable.

Items 30 & 31. An advice on evidence may be given in conference. However, this course is not advisable as it is the written opinion on evidence rather than what happens at the trial that the taxing master has to look at in order to determine the propriety of particular witnesses.

2. The advice in this case was given neither in conference nor in writing but over the telephone. I was not informed what advice had been given nor the time involved. Upon the information produced it would be impossible to assess a fee payable but in any event I consider it improper that such advice should be given over the telephone. Accordingly, I maintain that both items 30 and 31 should be disallowed.

Item 33. Counsel's fee on the brief for an undefended divorce is generally allowed at between $400 - $800 depending on the complexity of the case. This case was a simple straightforward undefended cause in which the Respondent appeared at the hearing upon the question of costs and maintenance only. The case lasted for only twenty minutes.

3. A figure of $750 in these circumstances is both excessive and unreasonable. On reconsidering this item I am of the opinion that the amount of $600 that I originally allowed was in any event too high. I do not therefore propose to review my decision on this item. The analogy drawn between the fees allowed in divorce actions and straightfoward C.J. cases is irrelevant.

Item 39. The fee charged by Mr. Hu for his opinion as to the validity of the marriage was $500. The opinion given is upon the validity of a marriage celebrated in the People's Republic of China. Such evidence has been required in numerous cases that have come before the court and each opinion follows the same pattern. The fee charged is excessive and unreasonable and I do not consider that the fee of $300 that was allowed should be increased. The fact that Mr. Hu will not give such an opinion for less than $500 is irrelevant.

Items 45 & 46. It is necessary for the Petitioner's solicitors to prove the validity of the marriage and to establish that it is a monogamous one. The Petitioner at the first hearing was not in a position to prove the marriage with the result that the case had to be adjourned. Every marriage has to be proved and in the majority of foreign marriages this has to be done by expert evidence. It was entirely the fault of the Petitioner's legal advisers that the case could not proceed on the original hearing date and accordingly the fees charged for the solicitor's and counsel's attendance in court on that occasion were disallowed.

4. I adhere to the decision made by me on the taxation that these items should not be allowed.

5. Date the 28th day of August, 1970.

Representation: