張新霖 v. 黎錦文及另十一人

CACV 281/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 281 OF 2007

(ON APPEAL FROM CACV NO. 252 OF 2004)

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 18 March 2008

Date of Judgment: 18 March 2008

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J U D G M E N T

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Hon Rogers VP:

1.Just over two years ago, there was an appeal to this Court in this case in respect of which this application arises.  The appeal clearly did not take very long and does not seem to me to have involved very much by way of important points.  No doubt the outcome was important to the parties because it involved matters which, very often, the parties involved take very seriously, but the actual legal issues do not seem to have caused the court any difficulty at all.

2.This matter now comes to this Court on an appeal from Fung J in respect of the taxation of costs.  It is unusual for matters of taxation to reach this Court.  Indeed, it could be said that it is unusual for matters of taxation to be taken to the judge.

3.The first point that is taken in this case is that the time had not arrived when an appeal lay to the judge because the formalities involved in taxation had not been completed.  Indeed, the first point taken was in relation to whether a certificate had been issued and whether the reasons given by the master were sufficient for an appeal to lie.  Fung J below, quite rightly, brushed that aside and said effectively, “The matter has got to my court, I’ve got to deal with it and it’s no use standing on formalities and sending the matter back so that the master can issue a certificate or whatever.  I’m going to deal with it because the master has effectively given the decision which is appealed from.  There is nothing further for him to do, of substance, other than pure technicalities, and the matter should go ahead”.  In my view, he was quite right to do so.

4.The point at issue was that, on that appeal that took place two years ago, three counsel appeared.  There was leading counsel, there was a junior counsel and there was a third counsel.  The third counsel had been the junior counsel’s pupil when the matter had first been argued at first instance.  The third counsel had just finished his pupilage the day before and he was given a brief.  It was a complimentary brief.  This is a standard practice with pupilages because it is part of the pupil master’s duty to bring on the pupil and give him whatever leg-up he can, which includes giving him an opportunity to appear in court whenever possible.  It is quite proper that that should happen.  If a case like that goes on appeal, it is quite understandable that the pupil master will try and persuade the solicitors at least to give the pupil a complimentary brief so he can appear; he can gain court experience and have his name in the report and so on and so forth.  No doubt the former pupil will be performing a very useful exercise and, no doubt, a considerable amount of work.  That is the nature of things and the nature of the Bar.  All I can say is long may that continue because it is to everybody’s benefit that that should happen, and to the benefit of the Bar generally that new barristers are brought on.

5.But when a matter comes to the Court of Appeal, this Court has consistently refused to give a certificate for two counsel.  I think it is for the first time that I have the opportunity of saying so in a judgment and I do so.  We have not done so because it is my considered view that parties who appear in front of the Court of Appeal are entitled to have two counsel and, for that reason, we do not give a certificate for two counsel because it sends the wrong message back, that in cases where no certificate has been given, taxation for two counsel should not be allowed.  So that one approaches this case on the basis that the taxation should take into account two counsel.

6.Confusion arose, quite clearly, before the master at first instance because there were two junior counsel, one of whom was on a complimentary brief.  The judge, in my view, sorted this out quite sensibly in the order that he made.  The order that he made was that all items of counsel’s fees in the Defendant’s bill of costs dated 29 June 2005 be remitted to Master de Souza for taxation according to the following directions: 

Then he made subsidiary orders, that taxation be subject to and conditional upon the issue of a certificate by Master de Souza.  Then he made an order for costs of the matter before him.

7.In my view, the judge very correctly set out the principles upon which the taxation should be conducted and I see nothing wrong with that at all.  It is then up to the taxing master to consider what this hypothetical leading counsel was entitled to and what the hypothetical junior counsel was entitled to.  The fact is the matter has been remitted to the taxing master and he has heard the matter subsequently.  Comments have been made in this Court about that, but it would be inappropriate for this Court to say anything because it might prejudice any further course which the Plaintiff might wish to take and anything which a judge before whom the matter might conceivably come and, therefore, as regards what has happened since the order of Fung J, I am not prepared to say anything further, other than that his directions appear to me to be correct.

8.I would therefore dismiss this appeal.

Hon Le Pichon JA:

9.I agree.

Mr Derry H M Wong, instructed by Messrs Ha & Ho, for the Plaintiff/Appellant

Mr K M Chong and Mr Aidan Tam, instructed by Messrs Peter Mo & Co., for the 1^st to 12^th Defendants/Respondents