Cheung Ying Lun and Another v. Karrie Trading Ltd and Others

HCA550/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 550 OF 2010

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BETWEEN

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HCA551/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 551 OF 2010

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BETWEEN

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(Heard together)

Coram: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 13 January 2011

Date of Ruling: 13 January 2011

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R U L I N G

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1.This is an application to vary the order nisi in relation to costs in this matter. The defendants in these two actions had applied to strike out the Statement of Claim, failing which the application was to strike out a number of very important paragraphs. In the event, the application failed and I made an order nisi that the costs of the application should be to the plaintiffs in any event with certificate for counsel. If the order remains in its present form, then the plaintiffs will have to wait until the end of the action to have the costs taxed and liability to pay will not arise until then.

2.I now have an application by the plaintiffs to vary that so that the order should be that the defendants are to pay the costs forthwith and that there should be a summary assessment.  That is of course opposed by the defendants.

3.Now that I have had an opportunity of hearing the argument in full, very persuasively presented by Mr Lee and by Mr Hui, I take the view that I ought to direct that these costs should be paid forthwith.  The reason is that I was of the firm view that once I looked at the matter and having heard the arguments of learned counsel, this in the event was an application which was doomed to fail.  The allegations raised in the Statement of Claim clearly were such as to demand a trial. My reasoning appears in my Judgment. This is in fact a discrete matter.  It was to be judged against the burden which a defendant assumes in making an application to strike out a Statement of Claim and it failed. It seems to me the costs consequences that are now asked for by Mr Lee should follow.  So I take the view that the costs should be paid forthwith.

4.The next matter is whether there should be a summary assessment or not.  The jurisdiction to make summary assessments is one, if I can put it this way, of growing popularity.  It really ought to be reserved to more straightforward applications.  This was relatively speaking a straightforward matter in the sense that it was disposed of in the course of the day.  There was the preparation which the solicitors had to carry out and the documents had to be marshalled. Most of the two bills relate to counsel’s fees. 

5.Now, there is no doubt that the cases are in effect identical, all that is different are the names of the parties and the particular documents that of course only relate to one party in one action and to the other parties in the other action, so to that extent they are separate.  But in terms of preparation and in terms of getting up the argument, really it is one argument and the bills have been prepared no doubt in a way designed to be as helpful as possible to me, but it strikes me that I have got to look at this in a more overall way rather than just separating it out.  I am sure that those preparing the bill have done their very best, whilst in no way doing themselves an injustice by undercharging. They have made their position clear through Mr Lee so there is no sense of trying to pull the wool over the court’s eyes or anything of that sort.

6.Mr Hui had suggested that really it would not be right to deal with it in this way, one ought to look at it more precisely.  If I were to make a summary assessment which the practice indicates should really be done in a broad brush and in a summary way, that does not mean the Judge has not got to look at the matter with care.  But of course the analysis of the bill is never going to be anything as precise as if there were to be a taxation.  Now if there was to be a taxation, there would be a lot more expense and there would be delay and I have to take all of this into account.

7.I think I can do the matter justice by dealing with it myself on a summary assessment.  My general approach to these two bills is to look at them in an overall way and I have decided that there is going to have to be quite a substantial bit of trimming, if I can put it in this way.  Most of the expenditure has been on counsel and it strikes me that this case merited the instruction of two counsel, one being leading counsel.  I can see that this was a very important application that needed to be defeated by the plaintiff and there was a lot of material to get through and the argument was not entirely straightforward.  But looking at it in this overall way, I have decided that on the hearing of the main application which resulted in my Judgment, that overall the correct assessment should be $340,000 which is 170,000 on each action and where Mr Lee has succeeded in varying the order nisi, he is also entitled to his costs of today and it strikes me that the correct amount. I think the overall appreciation of this is that a total of $30,000 would be appropriate and that works out at $15,000 in respect of each action. So these are my assessments.

Tung Ming Lee, instructed by Messrs Anthony Siu & Co., for the Plaintiffs (in HCA 550/2010 and HCA 551/2010)

John Hui, instructed by Messrs K M Cheung & Co., for the 2nd Defendant (in HCA 550/2010) and the 1st Defendant (in HCA 551/2010)

Victor Chiu Tsang & Partners for the 3rd Defendant (in HCA 550/2010) and for the 2^nd Defendant (in HCA551/2010), absent