Chan Boon Ning John v. Oldham, Li & Nie, Solicitors

HCMP2166/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO. 2166 OF 2005

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BETWEEN

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Before:  Master de Souza in Chambers

Date of Hearing:  10 July 2008

Date of Delivery of Ruling:  10 July 2008

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R U L I N G

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1.Another preliminary issue has arisen yet again in this taxation.  When the matter came before me last year, I had ordered, following my ruling on other preliminary issues, the provision by the defendant solicitors, the receiving party, of a detailed itemised bill to cover the ten office bills or gross sum bills which the defendant had delivered to the plaintiff.

2.A detailed itemised bill is now before the court. An issue has arisen and it is this.  Mr Ling for the paying party, the plaintiff, has observed that the itemised bill now contains items which were not originally reflected in any of the ten bills previously delivered to the plaintiff for settlement.  Whilst it is true, and it is a point which Mr Leung for the receiving party has conceded to, that the receiving party would not be at the end of the day looking to receive profits costs and disbursements over and above the amount originally claimed in any of the ten bills, it is the position of the receiving party that, nonetheless, the itemised bill as it stands is good and not defective in any manner. 

3.The argument of Mr Leung is that following the decision of Master Chu, as she then was, in 1997, in Hampton Winter & Glynn v Janice Campbell 1996 No. A2176, the receiving party in this case is entitled, by way of itemisation of the ten bills as ordered, to give details of certain work done which were not included in any of the original bills.  It is submitted that it is really a question of reasonableness that the court would have to look at in the taxation, and that these additional items not previously reflected in the ten bills referred to should be included and  taken into account when the court approaches the taxation of the itemised bill.  One should not forget that at the end of the day it is the ten bills that have to be taxed, because that was the order that I gave.  The itemised formal bill is really there to assist in that taxation.

4.Reference was made to the HONG KONG CIVIL PROCEDURE 62/App/66 which reads as follows:

“Breakdown - The breakdown or details delivered is only to assist the taxation and it is still the original gross sum bill delivered to client which is being taxed.  What is being upheld or reduced upon taxation is the original gross sum bill (Cook on Costs (2nd ed., p.92)). A solicitor is bound by the bill which he has delivered to his client.  Except by consent or order of the court made upon application, the bill may not be amended so as to strike out or add items or to correct the narrative.  Accordingly, where it is the gross sum bill which is ordered to be taxed, the breakdown of details supplied cannot remedy any defects or omissions in the gross sum bill or increase the amount claimed.”

5.The amount claimed has not been increased, but certain additional items have surfaced which were not originally included in the bills.  Mr Ling has identified, for example, certain communications for which only one letter or e-mail was claimed in one of the original bills and this is at page 7 of the itemised bill.  It now refers to three outgoing letters or e-mails.  I am informed by Mr Ling that his law costs draftsman has only been able to identify one such communication, not three.  This is just one instance.  I understand from Mr Ling that there are others which the law costs draftsman for the paying party has identified and adumbrated in full in the list of objections.

6.I think it is wrong to allow the original bills to be expanded in this manner.  Although, generally speaking, a solicitor is entitled to claim proper charges for work legitimately done on a client’s behalf, if when the bill is presented and certain items of work have not been charged, then there is no obligation on the client to pay for them.  Ten bills have been presented to the plaintiff in this case.  Their aggregate amount is  reflected virtually identically in the itemised bill.  The quantum sought has not changed, but then there are various items being added.

7.In my view, that is not an attempt which the court should condone or allow.  Accordingly, I agree - and I have been invited to do so  by Mr Ling - that the items not included in the original bills should be excised.

(Submissions on costs) 

8.The plaintiff shall have his costs of the two preliminary issues, with certificate for counsel, taxed if not agreed.

Mr Ling Chun Wai, instructed by S Y Chu & Co., for the Plaintiff

Mr Barry Leung, Law Costs Draftsman, instructed by Messrs Oldham, Li & Nie, the Defendant