Elijah Saatori v. Raffles Medical Group

CACV 109/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 109 OF 2008

(ON APPEAL FROM HCPI NO. 1114 OF 2006)

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Before: Hon Yeung, JA and Lam J in Court

Date of Hearing: 5 March 2009

Date of Judgment: 11 March 2009

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J U D G M E N T

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Hon Lam J (giving the judgment of the Court):

1.By a Notice of Motion of 6 February 2009, the Plaintiff seeks leave to appeal to the Court of Final Appeal in respect of our decision on 14 October 2008.  That decision was in respect of an interlocutory matter: we ordered that if the Plaintiff shall file an expert report supporting his allegation of negligence by 10 November 2008, the order of Saunders J striking out the Plaintiff’s claim would be set aside.  We also ordered the Plaintiff to pay the costs of the Defendant in any event because the Plaintiff only succeeded upon an indulgence being granted by the court.

2.The application for leave to appeal is seriously out of time.  Under Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, such a notice of motion should have been filed within 28 days from the date of the judgment to be appealed from.  There is however a power to extend time under Section 24(5), and the power can be exercised even though the application is made after the expiration of the primary period, see Section 24(6).

3.An extension of time under Section 24(5) would only be granted where at least very good grounds are shown (Full Wisdom Holdings Limited v Traffic Stream Infrastructure Company Limited, CACV266/2003, 27 July 2004; Wing Hang Bank Ltd v Crystal Jet International Ltd,CACV 255/2002, 9 March 2006 and Bowlstar (HK) Ltd v Ho Kwai, CACV 156/2006, 10 July 2007).

4.The delay is substantial.  The Plaintiff said he was informed by a friend that the time limit for filing the motion is three months.  He did not disclose the identity of this friend.  Nor did he explain why he could reasonably rely on the information instead of checking the time limit set out in the Hong Kong Court of Final Appeal Ordinance.  We do not think there is any good reason for the delay.

5.Further, the Plaintiff’s intention is to appeal against our order as to costs.  We have explained in our judgment why we exercised our discretion on costs against the Plaintiff.  There is no question of great general public importance arising from the intended appeal.  The so-called issues identified by the Plaintiff have nothing to do with his intended appeal on costs.  Even if the application were made within time, we would not have granted leave as the matter is not within the scope of Section 22 of the Hong Kong Court of Final Appeal Ordinance.

6.In any event, given it is clear that the Plaintiff was seeking an indulgence from the court (for leave to file a supplemental expert report and entertaining his allegations of negligence not pleaded in his Statement of Claim) without which his claim is liable to be struck out, there is no merit in his intended appeal as to costs.

7.The application is therefore dismissed. 

8.The Defendant seeks costs of this application and asks such costs to be fixed by way of a gross sum order under Order 62 Rule 9(4)(b) of the Rules of the High Court. For that purpose, the Defendant’s solicitor prepared a proposed statement of costs claiming $115,550 in total as costs of this application (of which $40,000 is counsel fee). The Defendant’s solicitors further stated in a letter of 3 March 2009 that the proposed statement of costs is a fair and accurate assessment of the time costs involved in relation to this application.

9.The following breakdown is given regarding the charges of the solicitor: a partner (admitted in 1998) allegedly spent 10 hours on communications including conferences, telephone calls and letters with client, the other side, counsel and court. In addition, a trainee solicitor allegedly spent 3 hours on the same head. In total, the charge under this head added up to $43,900.

10.Whilst the Plaintiff may have corresponded with the solicitor firm in a manner that could have contributed to the escalation of costs, we fail to see how such a figure can be justified in the context of a simple application for leave to appeal to the Court of Final Appeal.

11.Then another $15,900 was said to be incurred on perusal of documents. The documents identified are the order of 14 October 2008, the Notice of Motion issued by the Plaintiff on 6 February 2009 and his affirmation of 16 February 2009, a further document called “the Plaintiff’s application for leave to appeal to the Court of Final Appeal” of 20 February 2009. The partner and the trainee solicitor each claimed 3 hours for perusal. 

12.The affirmation of 16 February 2009 was not filed for the purpose of this application and had not been relied upon by the Plaintiff in this application. It was clearly stated to be an affirmation for checklist review request. The perusal of that affirmation cannot be regarded as part of the work related to this application. To include that in the statement of costs is misleading and improper. 

13.In our view, bearing in mind that the solicitors involved were engaged in these proceedings all along, the perusal of the documents relevant to this application should not take more than 30 minutes. There should not be any duplication in charging perusal both by the partners and the trainee. 

14.Then, another $12,600 was charged for “brief to counsel, review file, Defendant’s skeleton argument and Defendant’s statement of costs”.   The partner allegedly spent 2.5 hours and the trainee solicitor allegedly spent 2 hours for these matters. We do not know how much of the time were spent on the preparation of this statement of costs. In our view, the statement of costs is so grossly inflated and as such singularly unhelpful to this court that no costs should be allowed for its preparation. As regards the other items, given the simple nature of the application, only half an hour of a partner’s time can be allowed. That should build into it the costs of the trainee solicitor insofar as it is necessary for the partner to be assisted by a trainee in the performance of such tasks.

15.A sum of $2,650 was charged for attendance at the hearing, half an hour each for the partner and the trainee. We do not see why it is necessary to have both of them at the hearing.

16.Mr Carolan charged a brief of $40,000 for this application. Whilst we appreciate Mr Carolan has been the counsel in this case all along, one must not assume for costs taxation purposes it is necessary or proper to have the same counsel to conduct the present application. As we said, it is a simple and straightforward application. The taxing master should examine whether the brief charged by Mr Carolan is unreasonable and excessive as compared with a hypothetical counsel capable of conducting this application on behalf of the Defendant effectively. One must also take into account of the fact that part the brief of Mr Carolan is in respect of the application for gross sum order which we are not minded to grant.  

17.In view of the inherent unreliability of the proposed statement of costs, we are not minded to make a gross sum assessment. We would simply order the Plaintiff to pay costs of the application to the Defendant, such costs to be taxed if not agreed. We further direct the taxing master to have regard to our observations above in such taxation. The costs in relation to the letter of 5 March 2009 should also be disallowed.   

The Plaintiff (Appellant) in person, present

Mr Paul Carolan, instructed by Messrs Robertsons, for the Defendant (Respondent)