A Solicitor v. The Law Society of Hong Kong

CACV 11/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 11 OF 2003

(ON APPEAL FROM THE FINDINGS OF THE SOLICITORS DISCIPLINARY TRIBUNAL
DATED THE 20^TH DAY OF AUGUST 2002 AND
THE ORDER AND FINDINGS OF THE SOLICITORS DISCIPLINARY TRIBUNAL
DATED 20^TH DECEMBER 2002)

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BETWEEN

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Before : Hon Woo VP, Hon Cheung JA and Hon Burrell J in Court

Date of Hearing : 6 January 2005

Date of Judgment on Costs : 6 January 2005

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JUDGMENT ON COSTS

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Hon Cheung JA (giving judgment of the court) :

Costs of the appeal

1.The appellant had two of the four complaints quashed on appeal.  The penalty on the remaining two complaints was reduced.

2.We are of the view that the appellant is entitled to 50% of the costs of the appeal to be taxed on a party and party basis.  This will include the costs incurred in respect of arguments on costs and of today. 

Costs orders made by the Tribunal

3.The Tribunal made the following orders on costs :

“	6.	there be no order as to the costs in relation to the complaints which were not proceeded with by the Applicant (i.e. the Law Society) because this Tribunal found them no prima facie case;
	7.	the costs including those of the Clerk of the Tribunal, of and incidental to
		a.	the 2nd Respondent’s (i.e. the appellant) applications :
		(i)	to strike out the Complaints against her;
		(ii)	to compel the 1st Respondent (i.e. the partner) to repay commission to her; and
		(iii)	to compel the 1st Respondent to supply her with his signed statement dated 1997,
		which were dismissed by this Tribunal on 9th October 2001; and
		b.	the hearing on 9th, 10th and 19th October 2001 exclusively in relation to the Applicant’s case against the 2nd Respondent,
		be borne and paid by the 2nd Respondent entirely, such costs are to be taxed, if not agreed, on a full indemnity basis;
	8.	the costs of the Clerk of the Tribunal in relation to reviewing this case for the preparation of the Statement of Findings by the Chairperson of this Tribunal, be borne and paid by the 1st Respondent and 2nd Respondent in the respective percentages of 10% and 90%, such costs are to be taxed, if not agreed, on a full indemnity basis; and
	9.	save and except as dealt with in paragraphs 6, 7 and 8 of this Order, the costs of these proceedings, including the costs of the Law Society in investigating into the matter and the costs of the Clerk of the Tribunal, be borne and paid by the 1st and 2nd Respondents in equal shares, such costs are to be taxed, if not agreed, on a full indemnity basis.”

4.In respect of Order No. 6, the other complaints had already been dismissed before the four complaints which were the subject matter of the hearing before the Tribunal were served on the appellant and the appellant had not incurred any costs in defending those other complaints.  The order made by the Tribunal is appropriate.

5.In respect of the first part of Order No. 7, the appellant had applied to strike out the complaints on the ground that it disclosed no reasonable cause of action and was an abuse of process.  She also asked for two additional relief.  She was unsuccessful and the costs should follow the event.  Hence we will not disturb this order except that the basis of taxation will be on a party and party basis.

6.Although the appellant had also sought a declaration that she was not a partner of the firm, the Tribunal dealt with this application together with the complaints that were lodged against her.  Hence there should not be any separate order for costs for this particular application.

7.In respect of the second part of Order No. 7, we will order 50% of the costs of the hearing to be borne by the appellant.  This will be taxed on a party and party basis.

8.In respect of the Order No. 8, the Clerk of the Tribunal is entitled to the costs.  The proportion borne by the appellant is 45% to be taxed on a party and party basis. 

9.Order No. 9 is maintained save that the basis for taxation is to be on a party and party basis.

Mr. James H. M. McGowan, instructed by Messrs Lam Fung & Co., for the appellant

Mr. Nicholas Cooney, instructed by Messrs Deacons, for the respondent