Chan Yerk Wang v. Tony Kan & Co (A Firm)

HCMP 873/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 873 OF 2006

BETWEEN

Coram : Before Master Levy in Chambers

Dates of Hearing : 21 August 2009

Date of Handing down Reasons for Ruling: 23 February 2011

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REASONS FOR RULING

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A. BACKGROUND

A.1  The initial dispute

1.This case has taken a rather chequred history.

2.The relationship between the Plaintiff and the Defendant was that of former client and solicitors, the latter of who were engaged by the former in her matrimonial proceedings.

3.Upon conclusion of the matrimonial proceedings, the Plaintiff disputed the Defendant’s fees on the ground that there was an agreement on fees.  The Originating Summons of the present action was hence issued by her solicitors, Johnnie Yam, Jacky Lee & Co. (“JM& Co.”), in which she sought an order of delivery and taxation of the Defendant’s itemized bill.

4.Subsequently, parties agreed to refer the Defendant’s itemized bill for taxation, and at the taxation call-over in October 2007, the court ordered (by consent) the trial of preliminary issue regarding the terms of the retainer.

5.At the trial of the preliminary issue in April 2008, the Plaintiff acted in person.  During the proceedings, the parties entered into a written agreement by which the Plaintiff withdrew her allegation on agreed fees, and further that the Defendant’s itemized bill be taxed.

A.2  Taxation Hearing

6.At the taxation hearing, though the Plaintiff was acting in person, she adopted the List of Objections JM & Co. had filed on her behalf as her objections.

7.The Defendant’s bill of costs was taxed on 18 June 2008 after a hearing that lasted for 1 and ½ days.

A.3  The Review Application

8.On 2 July 2008, the Plaintiff, whilst still acting in person, filed an application to review the taxation.  As the Plaintiff has not stated in the summons or the supporting affirmation the items she applied to review, I asked her to set out the items she wished to review.

9.In compliance with my direction, the Plaintiff filed a statement on 12 August 2008, questioning the reliability of the Defendant’s bill.

10.In the list of items for review, since the Plaintiff had included items that she had either not objected to or compromised with the Defendant at the taxation, I directed the Plaintiff to file an affirmation to state her reasons for reviewing such items.

A.4  The Preliminary Issue of the Review

11.At the Review hearing on 21 August 2009, the Plaintiff was represented by counsel, Miss Winnie Chan who was instructed by Wat & Co.

12.The Plaintiff has since filed a Revised Objections of Review (exhibit “CYW-12” to the 2^nd Affirmation of Chan Yerk Wang filed on 23 January 2009).

13.The parties at the hearing had, for convenience, grouped the 44 items of objections into 3 categories.  The only preliminary issue that I was asked to determine was the so-called Category B – Items that the Plaintiff never raised any objections at the taxation hearing.

A.5  Ruling on Preliminary Issue on 21 August 2009

14.After hearing submissions from both counsel, I ruled against the Plaintiff, and determined that items under Category B did not fall within Order 62 r. 33, the Rules of the High Court.

A.6  Plaintiff’s Request for Reasons of Review

15.Upon the conclusion of the Review hearing on 13 May 2010, Wat & Co. on 27 May 2010 requested for “a Master’s certificate for Review”.  By a series of correspondence, Wat & Co clarified that “a Master’s certificate for Review” was meant to be a request for reasons for decision.  By the time the clarification was made, the 14 days time limit as stipulated by Order 62 r. 34 had lapsed, which means procedurally Wat & Co had not made the request for reasons within time.

16.Subsequently Wat & Co asked for the written reasons for the ruling on 21 August 2009.

17.I would now give my reasons for the ruling of the preliminary issue on 21 August 2009.

B.  REASONS FOR THE PRELIMIINARY ISSUE ON 21 AUGUST 2009

B.1  Contentions

18.Counsel for both parties have cited my earlier decision on the review in another case of Hui Kee Chun v The Privacy Commissioner for Personal Data , HCA 1980 of 2006 (d.o.j. 16 January 2009).  In that case, I ruled that items that the paying party had not previously objected to were not entitled to ask the taxing master to review them (para. 9-11).

19.Miss Chan however submitted that in coming to the decision as I did in Hui Kee Chun, I had not considered  an earlier decision of  Saw J in A Solicitor v Law Society of Hong Kong [2007] 4 HKC 165, which is binding on me.

20.In A Solicitor (op.cit), the taxing master taxed the bill as drawn when the paying party’s solicitors were absent at the hearing and they had also failed to file any list of objections.  The learned Master dismissed the paying party’s application to review under Order 62 r. 33, and was of the view that Order 62 r. 33 “would only apply when there was (sic) objections raised to the receiving party’s bill and both parties have argued at the taxation as to the allowance and disallowance of items involved in the bill. And the taxing master had made express ruling as to such objections.” ([2007]4HKC at 171E-F).

21.The learned Judge ruled that the taxing master’s said construction of Order 62 r. 33 was too narrow, and held that:

“Powers to review given to judges, magistrates or masters are designed in part to provide a simple means to remedy or revisit decisions without recourse to the full appellate process.” (171F-G)

22.The learned Judge allowed the paying party’s appeal by setting aside the allocatur and allowed him to file a list of objections by enlarging the time under Order 62 r. 16.

23.Miss Chan cited the learned Judge’s decision, and submitted that I am bound by his decision, and should allow the Plaintiff to review items in Category B notwithstanding that she had not raised any objections at the taxation hearing.

B.2  Discussion

24.In A Solicitor, the learned Judge was dealing with a case where the paying party never filed any list of objections, and was absent from the hearing.  The present case is entirely different to the facts of A Solicitor.

25.In this case, the Plaintiff’s 24 page long List of Objections filed by JM & Co. was prepared by a very experienced law costs draftsman, Miss Edith Tang (as shown on the document), and contains very detailed objections (110 objections in total).

26.The Defendant’s bill was taxed according to the Plaintiff’s professionally-prepared List of Objections.  The Plaintiff had not adduced evidence that her legal advisers had omitted any objections in the List of Objections.  Based on the List of Objections, I ruled at the taxation hearing by allowing and disallowing the items of the bill to which objections were made.

27.Though the Plaintiff was acting in person, she was present at the taxation hearing throughout, and in a position to supplement and clarify the objections.

28.In the circumstances, this is not a case where the Plaintiff had failed to raise any objections through either inadvertence or absence.  I am of the view that the present case is distinguished from A Solicitor, and that Order 62 rule 33 (3) is not engaged.  The Plaintiff should not be permitted to review any items that she had never objected to at the taxation hearing.

Ms. Winnie Chan, instructed by Wat & Co. for Plaintiff.

Mr. S.W. Lee, instructed by and Mr. B. Leung, Law Costs Draftsman of Tony Kan & Co. for Defendant.