Re Nfw

HCMH 49/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 49 OF 2010

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Before: Hon Fung J in Chambers (not open to public)

Date of Hearing: 18 February 2011

Date of Decision: 18 February 2011

Reasons for Decision: 23 February 2011

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REASONS FOR DECISION

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1.I made a costs order upon the appointment of the Committee under Part II of the Mental Health Ordinance (Cap. 136). The party had no objection that I make the reasons open for future reference.

2.The mentally incapacitated person (“MIP”) is at an advanced age and has been under an advanced stage of dementia and Parkinsonism with no intellectual communications for two years prior to the application.

3.The Applicant asks for the costs of the application to be paid out of the estate of the MIP.  The solicitor is charging profit costs in excess of $40,000, with disbursement for the two medical certificates for $23,000 and other disbursements of $1,000, making the final bill in excess of $64,000. 

4.In assessing quantum, the court would consider if the costs incurred were reasonably proportionate to the nature and complexity of the issues involved (see Re LLC (No. 2) [2010] 4 HKLRD 400 per Poon J).

5.This is a run-of-the-mill Part II case with no contentions nor complications, and a modest estate involving one piece of real property.  Much guidance can be found in the Practice Direction. From experience, the reasonable range of fees is between $35,000 and $50,000, and I have seen costs as low as $30,000. 

6.In this case, there are two factors causing inflation. Firstly,   the medical fees of $23,000.  Judging from the advance stage of dementia, there is really not any doubt as to certification of mental incapacity, and the medical certificates did no more than stating the obvious conclusion.  Like situation would have seen medical certificate being charged at $5,000 each or thereabout.  Solicitors should shop around and look at value for money for the client. 

7.Secondly, solicitor for the Applicant indicated that there has been written and oral communications with the Official Solicitors.

8.Looking at the correspondence, they are matters that the solicitors should have anticipated from reading the Practice Direction and dealt with ex improviso in the first place.  Subject to complications from third parties beyond the control of the Applicant, where there is none, it is a matter of common sense in dealing with the daily affairs of the MIP.

9.At the end of the day, I allow the profit costs of $30,000 and total disbursement of $24,000.  I cautioned that the disbursement of $23,000 for two medical certificates is too high, and such amount would not be allowed in future unless justified by special circumstances. 

10.I also wish practitioners in the Personal Injuries List to take note of this case, such that prospective costs of the Part II application can be properly gauged upon settlement negotiations with the Defendants in appropriate cases.

Mr LAM Chun Sing of Messrs Hastings & Co., for the Applicant