Tam Chun Ching, Denis v. Building Authority

HCA001624A/1995

1995, No.A1624

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Gall, J. in Chambers

Date of hearing: 23 May 1997

Date of judgment: 16 July 1997

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J U D G M E N T

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1. The appellant, who was the defendant in the court below, appeals an order made by Master Cannon on 25^th March 1997, ordering firstly, objections 1 to 5 to the taxation of the defendant's bill of costs dated 14^th May 1996 by Master Cannon made on 10^th January 1997, be dismissed and secondly, costs of the review be to the plaintiff (paying party), to be taxed if not agreed. The plaintiff filed a Writ of Summons with the general endorsement against the Building Authority on 22^nd February 1995. The plaintiff sought, inter alia, a declaration that the Closure Order in respect of House No.26, Shek O Village, Shek O, Lot No.1489, Hong Kong was of no force or effect and an injunction restraining the defendant from executing the Closure Order.

2. The plaintiff issued a summons under O.29, r.1 of the Rules of Supreme Court on the same day applying for a stay of execution of the Closure Order.

3. The summons filed on 22^nd February 1995 was heard before the then Deputy Judge Yeung on 24^th February 1995. The plaintiff was represented by counsel and the defendant represented by Mr Anthony Wu, Principal Crown Counsel of the Attorney General's Chambers who appears at this hearing and who appears at all hearings in respect of this application. At the hearing, Deputy Judge Yeung indicated that he would need further evidence from the plaintiff before he ruled on the application. The hearing was adjourned to 3^rd March 1995.

4. On 3^rd March 1995, Mr Yeung Ming Yip of Messrs Daniel Lam & Co. filed an affirmation explaining to the court that an application of legal aid had been made by the plaintiff. The case was before the then Deputy Judge Wesley Wong on 3^rd March 1995. The plaintiff was represented by counsel. It was further adjourned to 10^th March 1995 since counsel and solicitors for the plaintiff withdrew from the case on the date of hearing and the plaintiff had no legal representation.

5. The case was heard again before Deputy Judge Wong on 10th March 1995 and the plaintiff was represented by counsel.

6. On 14th March 1995, judgment was delivered and the delivery of judgment was attended by counsel for the plaintiff and Mr Wu of the defendant. The application for stay of execution was dismissed with costs, to be taxed if not agreed.

7. The defendant's Bill of costs was taxed before Master Cannon on 29^th July 1996. The defendant claimed in its Bill brief fee for Mr Wu in respect of the hearing on 24^th February 1995 and refreshers for Mr Wu in respect of the hearings on 3^rd, 10^th and 14^th March 1995, being Items 3, 12, 22 and 28 of the Bill. These items were disallowed by Master Cannon who instead allowed fees charged at an hourly rate.

8. An application for review of taxation on those four items was filed by the defendant, the appellant herein, on 23^rd January 1997. The review was heard before Master Cannon on 12^th February 1997 and was dismissed with costs.

9. This appeal is against that dismissal.

10. It was argued before me, and I accept, that a Government lawyer is a legal officer under the Legal Officers Ordinance, Cap.87, s.2(2) of the Legal Officers (Fees and Costs) Rules, Cap.87 states to :

"For the purpose of the Rules of Supreme Court (Cap.4 sub. Leg.), and in the application of any other legislative provision as to fees and costs or the practice relating thereto, a legal officer shall be deemed to have the status of a barrister and solicitor duly admitted under the Legal Practitioners Ordinance (Cap.159)

Provided that, in consideration of an item which in a bill rendered by or against a private party would -

(a) consist of costs allowable to a solicitor solely in relation to employment of counsel; or

(b) consist of fees payable to counsel solely in relation to his instruction by a solicitor; or

(c) involve remuneration to both solicitor and counsel in respect of the same event,

the Registrar upon taxation shall be informed and shall take into consideration whether one or more legal officers were engaged upon preparation or upon hearing of the case."

11. The appellant herein argues that since under the Code of Conduct of the Bar, which came into effect on 2^nd January 1996, the attendance upon counsel of solicitors or their representatives in court is dispensed with and since s.2(2) of the Legal Officers (Fees and Costs) Rules relates only to a situation where there is both the solicitor and the counsel to hold that where a legal officer who is performing the role of counsel is acting in the capacity of a solicitor would be to produce an absurd result.

12. There is no doubt that if one Government lawyer performs of the preparatory work in respect of a matter to go before the court and then a second performs the entirely distinct and a separate role as counsel that the first would be chargeable in a Bill of costs at the rate for a solicitor and that the latter could charge both at brief fee and the refreshers normally attributable to a barrister in private practice.

13. Strictly speaking, a brief to a barrister includes all the documents supplied to counsel, such as the copies of pleadings, affidavits, correspondence and documents of that nature. But in a more technical sense, the brief is that document which is drawn up by the solicitor in the form of a narrative or explanatory comment on the case with proofs of evidence of the witnesses attached to it. The brief is the authority of the barrister to appear for the client. The fee chargeable on that brief by the barrister includes the reading of all the necessary documents attached to the brief together with the other preparatory work necessary for trial.

14. The argument advanced by the plaintiff, who is the respondent herein, is that where the same person in the role of solicitor prepares a brief for the use by a barrister, he must so acquaint himself with the nature of the action on the documents that if the same person acts as a barrister, he would not, in practical terms, need to perform much of the work normally carried out by a barrister upon receipt of a brief and in preparation of the matter for trial.

15. In those circumstances, argues the respondent, to charge on the basis of a brief fee and refreshers, where the same person is both solicitor and barrister, is to claim on behalf of the barrister work which need not be done. It goes without saying that there is no middle ground between the costs charged in respect of solicitor's work and the brief fee and refreshers charged by a barrister. Either the barrister should be entitled to such fee as is normally paid in the private sector upon a brief of this nature for a counsel of the stature of the lawyer who appeared in court or the matter should be charged in the peculiar circumstances where the man is both a barrister and solicitor as if it were a solicitor who carried the matter through from the beginning to the end.

16. I accept that under the Legal Officers Ordinance, a legal officer has a right of appearance in all courts in this territory. I hold therefore that in the circumstances where the same person acts as a solicitor in the preparation of a matter for trial in the Attorney General's Chambers and then proceeds to act as an applicant in the court in response to the instructions that he has prepared as a solicitor, Master Cannon was right in disallowing the brief fee and refreshers and replacing them with a proper measure of preparation as a solicitor and the proper measure of costs applicable for the attendance in court by a solicitor.

17. This appeal is dismissed. The costs of this appeal for the respondent.

Representation:

Mr W.S. Clarke of M/s Clarke & Liu, for Plaintiff/ Respondent

Mr Anthony Wu (AGC), for Defendant/Appellant