Read the full judgment text of HCMP 002111/2005 on BabelCite. This High Court CFI judgment was delivered on 17 January 2007 before Mr Recorder Jat, SC.
Civil practice – taxation of solicitor and client costs – Legal Practitioner Ordinance (Cap 159) s.67 – whether Managers of To Ka Yi Tso complied with deadline under Consent Order for applying for taxation of Miller Peart's solicitor and own client bills – whether time could be extended under Consent Order where time was of the essence – whether special circumstances justified special taxation more than 12 months after delivery of bills under s.67(2) proviso (i) – whether court has power to impose interim payment as a term of taxation under s.67(2) – whether payment into court and costs of taxation in any event should be ordered – litigation concerning ownership of temple Tsing Wan Kun and its assets in the New Territories and court funds – CFA Costs Order on 22 December 2000 providing for common fund taxation and $40 million paid out from the Funds to solicitors – subsequent dispute over whether Miller Peart's costs should be taxed on common fund or solicitor and own client basis – three rounds of CFA clarification culminating in 3rd Clarification on 4 August 2006 confirming Costs Order did not affect contractual relationship between the Tso/Clan and Miller Peart – consent order providing that any application for taxation of solicitor and own client bills be made within 14 days of the CFA clarification, with 18 August 2006 as the deadline – Managers issued HCMP 1665/2006 on 18 August 2006 but did not serve it and later discontinued it without leave – Managers applied to amend Originating Summons on 21 August 2006, three days late – held, Managers failed to comply with Consent Order because 2006 OS was discontinued and amendment application was out of time – time was of the essence and could not be extended under Leung Yee v Ng Yiu Ming – however, special circumstances existed to justify special taxation under s.67(2) including a real probability of substantial overcharging (evidenced by 80% reduction in party and party taxation from $8.1m to less than $1.8m) and the unusual history of protracted CFA clarification proceedings – the court has power to impose interim payment as a term under the wide wording of s.67(2), and ordered $10 million interim payment (comprising $3m disbursements and $7m on account of profits costs) payable within 21 days – payment into court not ordered but Managers required to give notice of any application that would reduce the Funds below $20 million – costs of taxation to follow the event under s.67(5) – HCA 1692/2004 stayed pending completion of taxation – Miller Peart awarded costs of appeal and of hearing before Master – appeal dismissed save for the modification to paragraph 1 of Master's order.
Legal issues: Compliance with the deadline in the Consent Order for applying for taxation of solicitor and own client bills · Special circumstances justifying special taxation under LPO s.67(2) more than 12 months after delivery of the bills · Power of the court to impose interim payment as a term of taxation under LPO s.67(2) · Whether payment into court should be ordered as a condition of taxation · Whether the Managers should pay the costs of the taxation in any event
Outcome: Appeal dismissed in part; Master Lung's order for taxation affirmed with modification that bills be taxed on a solicitor and own client basis. HCA 1692/2004 stayed pending completion of taxation. Interim payment of $10 million ordered in Miller Peart's favour. Miller Peart awarded costs of the appeal and the hearing before the Master.
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