Chan Yin Na v. Union Medical Centre Ltd
Read the full judgment text of HCPI 804/2003 on BabelCite. This High Court CFI judgment was delivered on 5 August 2011.
1. The plaintiff in this case has applied for a review of taxation before a judge pursuant to the provisions of O. 65, r. 35 of the Rules of the High Court (“RHC”). In the proceedings, the plaintiff had claimed from the defendants damages for negligence in failing to prevent her suicide attempt when she was suffering from post-partum depression. The plaintiff suffered serious injuries as a result of the suicide attempt and was rendered paraplegic. The plaintiff has been on legal aid from the com
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HCPI 804 & 805/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 804 OF 2003 --------------------------------- BETWEEN
--------------------------------- AND PERSONAL INJURIES ACTION NO. 805 OF 2003 --------------------------------- BETWEEN
--------------------------------- (Consolidated pursuant to the Order of the Honourable Mr Justice Suffiad on 24 January 2005) Before : Hon Bharwaney J in Chambers (Open to Public) Dates of Hearing : 23 February and 13 June 2011 Date of Judgment : 5 August 2011 ----------------------- J U D G M E N T ----------------------- 1.The plaintiff in this case has applied for a review of taxation before a judge pursuant to the provisions of O. 65, r. 35 of the Rules of the High Court (“RHC”). In the proceedings, the plaintiff had claimed from the defendants damages for negligence in failing to prevent her suicide attempt when she was suffering from post-partum depression. The plaintiff suffered serious injuries as a result of the suicide attempt and was rendered paraplegic. The plaintiff has been on legal aid from the commencement of these proceedings. The trial, which lasted some 19 days in January 2008, was part heard and adjourned to be resumed from 27 May 2008. On 23 May 2008, just before the resumption of the trial, the parties reached a settlement in the sum of $11m, inclusive of interests. The defendants agreed to pay the plaintiff’s costs and there was an order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. 2.The plaintiff sought costs of about $11m against both defendants. The plaintiff’s costs were taxed by Master J Wong on a party and party basis. After the taxation, the plaintiff and the Director of Legal Aid sought a review of taxation of counsels’ fees pursuant to O. 62, rr. 33 and 34. Master J Wong heard the review on 4 and 10 October 2010 and, on 29 October 2010, refused the review giving reasons for his refusal. On 11 November 2010, the plaintiff issued a summons seeking a review, by the judge, of the decision of the taxing master pursuant to O. 62, r. 35. IS THE REVIEW OF TAXATION BY A JUDGE A HEARING DE NOVO? 3.The first point that was raised before me was whether a review of taxation by a judge, pursuant to O. 62, r. 35, was a hearing de novo or whether the judge would only interfere with the decision of the taxing master if he has made an error of law, or taken into account irrelevant matters, or failed to take into account relevant matters. The latter view can be found in many judgments, including the recent judgments of Chung J in China Property Development (Holdings) Limited v Mandecly Limited (HCMP436/2005, 7 July 2008) and of Deputy Judge To, as he then was, in Lin Zhen Man t/a Yet Chong Electric Company v Topfine Machinery Company Limited [2010] 1 HKLRD 135. However, Mr Raymond Leung, counsel for the plaintiff, contended that the former view was correct. 4.The starting point must, of course, be the provisions of O. 62, r. 35 which I reproduce as follows :
5.Mr Leung pointed me to the provision in r. 35(4) that on the hearing of any such application, the judge may exercise “all such powers and discretion as are vested in the taxing master in relation to the subject-matter of the application”, the only limitation being that, unless the judge otherwise directed, no further evidence was to be received on the hearing of the review, and that no ground of objection was to be raised which was not raised on the review by the taxing master. He submitted that it was plain from a literal construction of these provisions that the judge had a wide and unfettered discretion. The judge had to take into account the reasons given by the taxing master; however, he was not bound by those reasons, or by the decision of the taxing master. He submitted that I ought not to follow the decisions of Chung J and Deputy Judge To as those decisions were based on old authorities, including White v Altrincham Urban District Council [1936] 2 KB 138, which had not been followed by more recent English Court of Appeal authority, namely, Madurasingh v Penguin Electronics (a firm) [1993] 1 WLR 989 and Kawarindrasingh v White [1997] 1 WLR 785. Mr Leung embarked on a review of the English provisions and authorities to make good this point. 6.White v Altrincham Urban District Council [1936] 2 KB 138 had been decided under the old rules of the Supreme Court (“RSC”), O. 65, r. 27(38) and (41), and the equivalent County Court Rules. These provisions were replaced by the Supreme Court Costs Rules 1959, prior to their re-enactment in 1965 to become RSC O. 62 (SI No. 1776 of 1965). In due course, a new O. 62 was published in 1986 (SI No. 632 of 1986) which remained in force until the Woolf Reform in 2000. The wording of RSC O. 62, r. 35(4), providing for the jurisdiction of the judge on a review of taxation, has not changed since 1959. Our O. 62, r. 35(4) of RHC is identical to O. 62, r. 35(4) of the RSC. 7.The orthodox view, that the judge would only interfere with the decision of a taxing master in limited circumstances, which has prevailed in Hong Kong and, until recently, in England, was expressed by Slesser LJ in White v Altrincham Urban District Council [1936] 2 KB 138 at p.143 in these terms :
8.Consistent with this approach, Deputy Judge To said in Lin Zhen Man t/a Yet Chong Electric Company v Topfine Machinery Company Limited [2010] 1 HKLRD 135, that :
9.In the case Deputy Judge To referred to, Bank of China (Hong Kong) Limited v Villa King Enterprises Limited, HCMP5727/1999, Waung J had said :
10.Mr Leung submitted that I ought not to follow these decisions and the decision of Chung J in China Property Development (Holdings) Limited v Mandecly Limited, HCMP436/2005 in which the learned judge cited Halsbury’s Laws of Hong Kong (2006 Reissue) Vol. 5(2), at para.90.1275.1, in support of his decision. That passage was no more than an adaptation of the old position set out in Halsbury’s Laws of England Volume 37, 1982. More recent English authority, which I refer to below, deciding that a judge had an unfettered discretion on a review of the master’s taxation under r. 35(4), and could decide an item of taxation afresh, had not been cited to Chung J, nor to Deputy Judge To, as he then was, nor to Waung J. 11.In Thomson v Department of the Environment [1986] NI 196 (decided before SI No. 632 of 1986 was enacted in England), Carswell J considered the Northern Ireland equivalent of the English rules. He referred to White v Altrincham Urban District Council [1936] 2 KB 138 and to the specific wording in O. 62, r. 37(1) of the Northern Ireland Rules of the Supreme Court that “any person who is dissatisfied with the decision of the Taxing Master to allow or disallow any item in whole or in part on review under rule 36, or with the amount allowed in respect of any item by the Taxing Master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item [emphasis added] and continued :
12.In Madurasingh v Penguin Electronics [1993] 1 WLR 989, McGowan, CJ (at 993F) said :
13.In Adair QC v Lord High Chancellor, CARC2172 (unrep.), 5 July 1996, Carswell LJ in the context of discussing a review under the Legal Aid in Criminal Proceedings (Costs) Rules NI 1992 said (at p.10) :
14.In Kawarindrasingh v White [1996] 1 WLR 785 (at 787-9), Lord Justice Brooke (with whom Lord Woolf MR and Aldous LJ agreed) said (at 787-9) :
15.Further, in Donaldson v Eastern Health and Social Services Board [1997] NI 232, Campbell, J explained that (at 236j) :
16.Again, in Truscott v Truscott [1998] FLR 265, Kennedy LJ (with whom Waite and Auld LJJ agreed) said (at 272H) that :
17.Mr Leung also referred me to two other Hong Kong authorities which supported his contention that the judge’s discretion, on a review of taxation, was unfettered. In Re Greater Beijing Region Expressway Limited [2005] 2 HKC 185, Barma J referred to the provision in O. 62, r. 35(4) that “the judge may exercise all such powers and discretion as are vested in the Taxing Master” and concluded, on a plain construction of that provision, that :
Similarly, in Tung Ka Hung & Ors v Wan Kin Chung Daniel & Ors HCCW No. 726 of 2002 (unrep.), Tang J, as he then was said (at p.3D) :
18.Dr David Kan of Messrs Reed Smith Richards Butler, who appeared for the 1st defendant, and Ms Yeung Pui Kei of Messrs Mayer Brown JSM, who appeared for the 2nd defendant, countered these submissions by referring me to the decisions of Chan PJ in Yue Kwok Wing v Mak Shiu Tong FACV4/2004, 14 February 2006, and Riberio PJ in Nam Chun Investment Company Limited v Director of Lands (2007) 10 HKCFAR 523. Both decisions dealt with the taxation of costs in the Court of Final Appeal. 19.Rules 57 and 60 of Part XI of the Hong Kong Court of Final Appeal Rules, Cap.484, dealing with costs, provide as follows:
20.Notwithstanding the provision in rule 60(1) that “any party aggrieved by a decision of the Registrar to allow or to disallow any item of a bill of costs, in whole or in part, or with the amount allowed in respect of any item by the Registrar, may appeal to the Court” and the provision in rule 60(8) that “the Court hearing the appeal may exercise all the powers and discretions of the Registrar in relation to the subject matter of the appeal”, Chan PJ adopted the orthodox approach and concluded that he would only interfere with the decision of the Registrar in limited circumstances. He said:
21.In the latter case, Riberio PJ dealt with the court’s approach to appeals against decisions taken on taxation and stated :
22.Mr Leung pointed out that the English jurisprudence and the decisions of Barma J and Tang J, as he then was, had not been considered by their Lordships. Their decisions were decisions on the jurisdiction of a single permanent judge of the Court of Final Appeal, dealing with an “appeal” under r. 60 of the Rules of Court, which did not provide for a “review of taxation” by the single permanent judge of the Court of Final Appeal. Being an appeal from the decision of the Registrar, the appellant is required to set out in the “notice of motion” the precise grounds of appeal. The paying party has an option either to seek a review from the Registrar before appealing to the single permanent judge or to appeal directly to the single permanent judge from the Registrar’s original taxation. Unlike O. 62, r. 35(5), there was no provision in r. 60 of the CFA Rules for the “appeal” to be heard with two assessors. I agree with these submissions and I conclude that these decisions are not binding on me. 23.However, they are authorities which I can rely upon to support my own decision that I ought not to follow the English line of authorities and that I ought to conclude that I am only able to interfere with a taxation decision of the master if it is shown to have been arrived at under a mistake of law, or in disregard of principle, or under a palpable misapprehension as to the facts, or plainly in reliance on irrelevant matters, or a failure to take into account relevant matters, or to be such as to fall outside the generous ambit within which reasonable disagreement is possible. 24.Personally, I am tempted to say, coming, as I do, to the Bench after many years of practice at the Bar, that I have the necessary knowledge and experience relating to the current level of costs, in general, and the current level of barristers’ fees, in particular, to deal with a review of taxation afresh. However, after the passage of some years, that knowledge and experience will become less and less relevant. Most, if not all High Court judges, unless recently appointed from the Bar or the solicitors’ branch of the legal profession, are likely to consider that they lack the necessary knowledge and experience of the current level of costs to deal with the matter of taxation of costs as a hearing de novo. No doubt that knowledge and experience will increase as we make more and more summary assessments of costs in interlocutory matters. However, increasing knowledge and experience of interlocutory costs may not sufficiently equip the High Court Judge to deal afresh with the taxation of the costs of trial preparation and of the trial proper. 25.There is also the element of unequal treatment that will arise if the judge taxes de novo the items of costs which are the subject matter of review but cannot look at the other items of costs which are not the subject of the review. The taxation of the costs of the proceedings requires consistent treatment by the taxing master of all the items of costs which are the subject of objection. A judge, conducting a taxation de novo only on certain items of costs, can only achieve consistency of treatment on those items. More problematical is the question of whether the judge conducting a taxation de novo on the review of the receiving party can tax costs in a lesser amount than that allowed by the taxing master or, vice versa, whether the judge, on the review of the paying party, can tax costs in a greater amount than that allowed by the taxing master. Mr Leung rightly submitted that I could not do so in the present case as the defendants had not issued a cross summons for me to review the decision of the learned master. If the judge has to deal with the matter of taxation of costs as a hearing de novo, the above considerations are likely to cause the parties to enlarge the dispute between them. 26.The parties to taxation proceedings already enjoy a right of review before the taxing master under O. 62, rr. 33 and 44. On such review the taxing master may “exercise all the powers which he might exercise on an original taxation” (O. 62, r. 34(2)). The aggrieved party cannot apply for a review before a judge unless he has requested the taxing master, in accordance with r. 34(4), to state the reasons for his decision in respect of that item or part (O. 62, r. 35(1)). O. 62, r. 34(4) requires the taxing master to state in writing the reason for his decision on the review and any special facts and circumstances relevant to it. These provisions support the conclusion that the judge, on his second review of the matters of complaint, is not required to conduct a taxation de novo but to consider the reasons for the taxing master’s decision on his review, in order to ascertain whether he erred in principle, or took into account irrelevant matters, or failed to take into account relevant matters. 27.There are other instances when a judge hearing an appeal from a master refrains from intervening and reversing the decision of the master unless he has erred in principle, or has taken into account irrelevant matters, or has failed to take into account relevant matters. On an appeal to the judge from a costs order made by the master, the judge will not allow an appeal from the master’s costs order unless it was unreasonable or the master erred in principle (Hoddle v. CCF Construction Ltd [1992] 2 All ER 550, Li Yan Yin v. Atta-Trans Ltd, HCPI 196/2009, 18 July 2011). 28.Notwithstanding the provision in r. 60(8) of the CFA Rules that “the Court hearing the appeal may exercise all the powers and discretion of the Registrar in relation to the subject matter of the appeal”, Chan PJ and Riberio PJ declined to do so, and, for the above reasons and notwithstanding the provision in O. 62, r. 35(4) that “the judge may exercise all such powers and discretion as are vested in the taxing master in relation to the subject matter of the application”, I likewise decline to do so. 29.I now turn to deal with the specific items of dispute. GENERAL OBSERVATIONS 30.The post Civil Justice Reform provisions in relation to the taxation of counsel’s fees appear in Part II of the First Schedule to O. 62. §2(5) of that Part specifically states :
As this action was started before the commencement of the Civil Justice Reform in April 2009, the taxation of counsel’s fees had to be carried out in accordance with the general principles relating to such taxation as set out in §2 under the old Part II of the First Schedule. As provided in §2(5) thereof and as properly noted by Master J Wong :
31.Master J Wong was aware of the decision of Barma J in Re Greater Beijing Region Expressways Ltd. He quoted from the note in the Hong Kong Civil Procedure 2010 at marginal note 62/App/28A in these terms :
32.Although Mr Leung accepted that the learned master had recited the principle explained by Barma J, he submitted that the learned master had not properly applied that principle and had not approached the assessment on the basis of the work actually done by counsel to decide whether it was excessive or unreasonable. I shall deal with this submission when I review the individual items of costs under review. 33.I note that the learned master expressly took into account the following relevant circumstances of the present case which he recorded in §9 of his reasons for his decision as follows :
34.Notwithstanding his identification of these relevant circumstances, Mr Leung complained that the learned master failed to give weight to them. In particular :
35.However, judging by the length of time taken for the original taxation hearing (5 days) and the length of time taken for the review hearing (2 days), the fact that senior and junior counsel took the rather unusual step of providing the taxing master with a 44-page written response to the defendant’s list of objections for the taxation hearing, the fact that Mr Leung appeared before the master on the review which took place on 4 and 11 October 2010 and made very lengthy oral submissions before him and, above all, the fact that the learned master allowed brief fees in amounts which, at first blush, I considered to be very substantial, I am far from convinced that the learned master failed to take the aforesaid matters into account. On the contrary, a perusal of the transcript of the proceedings before the learned master on the review of taxation on 4 and 11 October 2010 shows that most of these matters were canvassed before the master. I must also make mention of the following matters which support my conclusion that the learned master was well aware and took account of the complexity of the case: he allowed separate fees to senior and junior counsel attending witnesses and experts in preparation for the trial, in addition to the brief fees that he allowed them, and he also took the unusual step of allowing fees of senior counsel for preparing attendance notes of those conferences. The learned master summarised these matters very concisely in §9(a) of his reasons. It was not incumbent on him to list out each and every specific matter. 36.Indeed, my initial impression is that he awarded such substantial fees to counsel engaged in this case because he took fully into account these various matters. If I had been the taxing master, I might not have been as convinced as the learned master was that this was such a complex and weighty case as to warrant such high fees. However, the defendants have not sought to review any items of costs allowed by the learned master to senior and junior counsel, and there is no question of me reducing any fees allowed by the learned master. SCALE OF TAXATION 37.Mr Leung was right to submit that, before the Civil Justice Reforms in April 2009, the scale of taxation of counsel’s fees was on a more generous basis than that applicable to other items on a party and party taxation. According to §2(5) under the old Part II of the First Schedule to O. 62, every fee paid to counsel should be allowed in full on taxation, unless the taxing master was satisfied that the same was excessive and unreasonable. In that event, the taxing master should exercise his discretion having regard to all the relevant circumstances and, in particular, to the matters set out in §1(2) under the old Part II of the First Schedule to O. 62. 38.Barma J in Re Greater Beijing Region Expressways Ltd reconciled the rule contained in §2(5) with the requirement that only such costs as are “necessary or proper” should be allowed under a party and party taxation pursuant to O. 62, r. 28(2). The criterion of “necessary and proper” is limited to the consideration of whether counsel is required for the particular piece of work in question. If so, the fee of counsel should be allowed in full unless it is shown to be excessive and unreasonable. In the latter event, the taxing master should exercise his discretion with regard to all the relevant circumstances and, in particular, to the matters set out in §1(2), and allow such fees as he considers reasonable in the light of those circumstances and matters. As Barma J noted in Re Greater Beijing Region Expressways Ltd, adopting the comparative approach suggested in Simpsons Motor Sales (London) Ltd v Hendon Corporation (No. 2) [1965] 1 WLR 112 does not pose any particular difficulty in considering whether counsel’s fees, in a given case, are excessive and unreasonable, so long as, in doing so, it is remembered that one is doing so on a more generous basis than that applicable to a party and party taxation. 39.I will consider whether or not Mr Leung has made good his submission, that the learned master only paid lip service to these principles but did not actually apply them, when I refer to and deal with the various items of costs, the subject matter of this review, to which I now turn. (1) Counsel’s fees for meeting witnesses before trial (items 947 and 948) 40.These items relate to conferences held by counsel with the plaintiff’s husband and her sister-in-law on 20 and 21 December 2007. Senior counsel sought fees of $64,000 for a 6-hour consultation with the plaintiff’s husband, followed by a consultation note which took him 2 hours to prepare, and the same amount for a consultation on the following day with the plaintiff’s sister-in-law, lasting 7 hours, followed by a consultation note which took him 1 hour to prepare. Junior counsel charged $27,000 for the 6-hour conference with the plaintiff’s husband on 20 December 2007 and $31,500 for the 7-hour conference with the plaintiff’s sister-in-law on 21 December 2007. In addition, the plaintiff’s solicitor also charged a total of $52,000 for his attendance on these 2 occasions. The learned master accepted that all 3 fee earners were entitled to meet witnesses before the trial, and that counsel ought to charge separately for those meetings, over and above the brief fees charged. However, he formed the view that a 4-hour meeting with the husband and 2-hour meeting with the sister-in-law ought to have been sufficient, and he allowed counsels’ fees on that basis. Therefore, he allowed all the fees charged by both counsel and the solicitors on 20 December 2007 to be borne by the defendants, and the fees charged on 21 December 2007 to be transferred to common fund costs. 41.The learned master’s reason for this decision was that their witness statements had been finalised in April 2005 and were about 18 pages and 5 pages in length. Notwithstanding the detailed consultation notes prepared by senior counsel after the meetings, no supplemental witness statements had been prepared for these 2 witnesses. He accepted that the actual time spent by the witnesses in cross-examination at trial was quite a number of days, but this length of time had not been anticipated originally. Indeed, the parties had estimated that 1.5 days, and 0.5 day, respectively would have been sufficient for these 2 witnesses. In assessing the amount of time that was reasonable to spend with the sister-in-law, he took into account the fact that she was an eye witness to the plaintiff’s attempt to commit suicide, that she was badly affected by the incident, and that she required careful handling. 42.On a review before a judge in chambers of a quantitative assessment by the taxing master, the judge in chambers is unlikely to interfere with such quantitative assessment unless the assessment appears to him to be clearly or plainly wrong. Counsel and senior counsel acting under a legal aid assignment must conduct their business efficiently. Barristers who render a Rolls-Royce service on a legal aid assignment understand and must understand that they might not be allowed fees, on a party and party taxation, that are commensurate with work they have performed. As far as I know, barristers have always been ready and willing to perform high quality work, on a legal aid assignment, upon that understanding. 43.There is no challenge to the hourly rate allowed by the taxing master. The challenge is to the number of hours of work assessed by the learned master as reasonably sufficient to deal with the work at hand. I find that the learned master did not take into account irrelevant matters and that he took into account all the relevant matters in making his assessment. He concluded that “6 hours ought to be good enough under party-and-party basis”. He did not err in principle in reaching this conclusion. He applied the appropriate test, which he had earlier recited in his reasons, that every fee paid to counsel should be allowed in full on taxation unless the taxing master was satisfied that the same was excessive and unreasonable. In effect, he found that the fees charged for meeting witnesses in excess of 6 hours was excessive and unreasonable. Notwithstanding the great emphasis placed on the length of time taken in the cross-examination of these 2 witnesses, and notwithstanding that the issues that had to be dealt with included the family background, the infidelity of the plaintiff’s husband, the suggestion that he suffered from a sexually transmitted disease in consequence of his infidelity, the psychiatric history of the plaintiff’s mother who also committed suicide by jumping from a height, and the alleged propensity of the plaintiff’s husband and his family to hide the plaintiff’s psychiatric condition from the doctors and nurses of the hospital, I am unable to conclude that the assessment of the learned master of the time that ought reasonably to be taken to deal with the issues was plainly wrong. In reaching this conclusion, I have had regard also to the fact that the learned master allowed in full the fees charged by the solicitors, and senior and junior counsel, who met the plaintiff’s husband again for some 2.5 hours on 26 December 2007. (2) Counsel’s fees for attending the plaintiff’s home and the hospital (Item 1000 & 1001) 44.After meeting the husband on 26 December 2007, the full team went to pay a site visit to the plaintiff’s home (where she had attempted suicide on 8 October 2000) and the hospital, and the podium of the hospital from where the plaintiff had jumped. Having allowed the fees charged by the solicitor for the site visit, including taking photographs, the learned master disallowed the fees charged by senior and junior counsel, and transferred them to the common fund, for the reasons that the site visit by senior and junior counsel went beyond party and party costs. 45.The judge is more likely to intervene with a qualitative assessment of the taxing master if he comes to the view that the taxing master was plainly wrong to allow or disallow a particular item of costs. Senior and junior counsel charged 3 hours (including travelling time) spent on 26 December 2007, before the commencement of trial in January 2008, in order to visit 4 sites, the plaintiff’s matrimonial home in Ma On Shan, the lift lobby on the 10/F lobby where the plaintiff attempted to commit suicide on 8 October 2000, the ward where the plaintiff was admitted, and the podium of the hospital where the incident occurred, including the layout of the nursing station at the ward in order to ascertain how the plaintiff and her sister-in-law walked past the nursing station on 10 October 2000 and whether they were within sight of the nurses. Although the layout of the podium had changed by the time of their visit, the purpose of the visit to the podium was to understand the details of how the plaintiff and her sister-in-law left the ward and arrived at the podium, the route taken, how they could have been prevented from accessing the podium, and why the plaintiff’s sister-in-law was not able to prevent the suicide attempt. The visit to the lift lobby on the 10/F of the Ma On Shan Building was made to enable the plaintiff’s husband to demonstrate how the plaintiff was sitting on the window ledge of the window which appeared to be quite narrow as viewed on the photographs. Finally, the layout of the plaintiff’s home in Ma On Shan was viewed in connection with the claim for alternative accommodation. Quantum had not been agreed at that point in time and had only been agreed later on during the middle of the trial. At the site visit, it was discovered that one room was occupied by the family of the plaintiff’s brother-in-law. 46.I have considered the written submissions of the defendants carefully and their oral submissions that the learned master was right to conclude that the site visit by the counsel for the site visit was neither necessary nor proper. For the reasons advanced to me by Mr Leung, which I have set out above, I have come to the opposite view and conclude that the learned master was plainly wrong to disallow the fees for the site visit. No issue was taken on the quantum of those fees, either in terms of the time taken for the site visit, or in terms of the hourly rate charged by the counsel. Therefore, I allow, on this review, the fee charged by senior counsel in the sum of $24,000 and the fee charged by junior counsel in the sum of $13,500 for the 3-hour spent on the site visit on 26 December 2007. I consider that it was necessary and proper for counsel to be instructed to visit the sites mentioned on that day and that counsel’s fees charged for the site visit were not excessive and unreasonable. (3) Brief fee of both the senior and junior counsel (Items 1094 and 1096) 47.Senior counsel charged a brief fee of $500,000 and an additional $70,000 to attend the hearing on whether or not there ought to be a split trial. Junior counsel charged a brief fee of $350,000. The learned master allowed brief fees of $406,000 to senior counsel and $225,000 to junior counsel. He arrived at the former figure by estimating preparation time of some 37 hours and 5 hours for the 1st day in court, making a total of 42 hours, to which he applied an hourly rate of $8,000 to come to the sum of $336,000. To this amount he added, in full, the additional $70,000 charge for the split trial hearing to come to a total of $406,000 for senior counsel. He estimated preparation time of 45 hours for junior counsel which, together with 5 hours for the 1st day of trial, produced a total of 50 hours to which he applied the hourly rate of $4,500, producing a figure of $225,000 as the brief which he allowed for junior counsel. 48.Before allowing the brief fees in these amounts, the learned master reminded himself of the applicable principles to be applied to arrive at a proper measure for counsel’s fees as summarised in Hong Kong Civil Procedure 2010 at marginal note 62/App/31 at pp.1154-1155. 49.He specifically noted that in the present case :
50.The learned master did not alter his assessment on the review of this item of costs. His attention was drawn to a number of notes prepared by senior counsel for the cross-examination of the defendant’s witnesses. These were detailed notes setting out lines of cross-examination for several witnesses with specific questions written down. He re-considered the matter, as a whole, in the light of these detailed notes, but remained of the view that the preparation for examination of witnesses should take about 10 hours for each counsel, and that this was a reasonable time, particularly given the expertise of the senior counsel. At the review, junior counsel took him through a summary of literature which he had prepared for the experts. This was a succinct summary of the textbooks and materials referred to by the experts in their reports. The learned master noted, however, that the summary had not been deployed at trial and was only kept within the plaintiff’s team. He found such work to be impressive, but he was not persuaded that he ought to change his assessment on the brief fee. 51.My immediate impression, upon seeing such brief fees being allowed, was that the learned master was exceedingly generous, particularly having regard to the very substantial amounts already allowed for pre-trial work by senior and junior counsel. I am grateful, therefore, for the effort taken by Mr Leung in pointing out to me the complexity of the case, and the implications of the missing OPD record which I have already highlighted earlier on in this judgment. However, that review does not persuade me to conclude that the learned master was plainly wrong in his conclusion that the brief fees charged were excessive and unreasonable or in his assessment of what was a reasonable brief fee and which he allowed. In fact, I remain of the view that the learned master was generous. My consideration of the specific matters identified to me by Mr Leung does not cause me to intervene and to allow higher fees. This was not a medical negligence case involving extremely complicated science requiring many hours of work by counsel to understand that science and to prepare for the cross-examination of renowned experts on the subject of that complicated science. This was a fact sensitive case of the appreciation of the suicide risk on the part of the doctors and nurses who dealt with the plaintiff upon her admission, on 8 October 2000, up to the time of her attempted suicide 2 days later on 10 October 2000. I do not doubt that counsel did a substantial amount of work immediately prior to the commencement of trial, including preparing a 56-page chronology which was much more than a chronology, being a survey and analysis of all relevant documents, as well as a 29-page opening submission and an additional note for the opening. Mr Leung rightly submitted that counsel took on the case on the basis that the time and effort they spent would be properly and reasonably assessed as provided in the Ordinance. That is correct, and that is what the learned master did in his assessment of what was a reasonable brief fee, having regard to the relevant circumstances of the case, which he entirely took account of, including the matters set out in §1(2) under Part II of the First Schedule to O. 62. Both senior and junior counsel in this case have long experience of rendering high quality work under legal aid assignments and well understand that they might not be allowed fees, on a party and party taxation, that are commensurate with the work they have performed. 52.The learned master specifically noted that both counsel had separately charged for work which would normally be considered as work conducted in preparation of trial, including reviewing documents, and meeting witnesses and experts. Senior counsel charged the sum of $384,000, being items 801-1019 in Appendix III of the plaintiff’s written submissions. The learned master allowed the sum of $272,000 for this work, in addition to the brief fee that he allowed to senior counsel. Junior counsel also charged separately for similar work, as can be seen from items 930-1020 of the said Appendix III. Junior counsel charged $155,250, and was allowed the sum of $108,000, in addition to the brief fee allowed by the learned master. 53.In §19 of his Reasons for Decision on his review on taxation, the learned master set out the following table as showing the number of hours which he assessed to be reasonable :
54.It is not in dispute that the table contains a typographical error. When one reads p.83 of the transcript of the taxation proceedings before the learned master, one can see that he allowed 12 hours for senior counsel to read the Opening, Documents and Authorities prepared by defendants’ counsel, and 15 hours to junior counsel for the same work. 55.Appendix IV to the plaintiff’s submission shows that the learned master allowed the sum of $588,000, as the brief fee for senior counsel, ignoring the additional item of $70,000 for the split trial hearing, and including the work separately charged by him for consultations with experts and with the plaintiff’s husband and sister-in-law, prior to trial, which would usually be considered as part of the brief fee. At an hourly rate of $8,000, this was the equivalent of the learned master allowing more than 70 hours of work for senior counsel. The learned master allowed a total of $344,250 for junior counsel as his brief fee, and for conferences with experts and witnesses prior to the commencement of trial, which would usually be considered as part of the brief fee. At an hourly rate of $4,500, this amounted to 75 hours of work allowed for junior counsel for the preparation of trial. 56.Notwithstanding the valiant efforts of Mr Leung in seeking to persuade me otherwise, I remain of the view that the learned master was generous in allowing such fees. 57.Mr Leung submitted that the court has to consider the work done and the time actually spent by counsel and come to the view whether his fees for such work was “excessive or unreasonable”. A perusal of the transcript, in particular at p.83, of the taxation proceedings, and §§17-20 of the learned master’s reasons, given upon his review of the taxation, shows that this is what the learned master has done in this case. I agree with the submissions of Mr Leung that the concept of the charge of a “hypothetical counsel”, as opposed to that charged by “fashionable counsel”, is to assist in assessing the reasonable rate to be allowed. The exercise of the taxing master’s discretion in assessing a reasonable fee, pursuant to §2(5) of Part II of the First Schedule to O. 62, can only be done by assessing the time counsel, given his experience in the particular field in question, ought reasonably to take to perform the piece of work in question. A hypothetical counsel and a fashionable counsel with the same amount of experience ought to take the same amount of time for a particular piece of work. A more experienced senior counsel will take less time than a junior counsel, and a more experienced senior junior will take less time than a junior counsel. The learned master recognised the experience of senior and junior counsel engaged in this case and assessed the amount of time that it was reasonable for them to take to prepare this complex case in the light of their expertise. He was entirely right to do so. 58.Mr Leung complained that only 12 hours were allowed for each counsel to prepare cross-examination of 16 factual witnesses and other expert witnesses. However, these factual witnesses were involved in a treatment of the plaintiff for a period of just over 36 hours, and the involvement of most of the nursing witnesses was very limited. The learned master was referred to the detailed notes of cross-examination prepared for these witnesses and, having carefully considered the matter, remained of the view that the preparation for the examination of witnesses should take about 10 hours for each counsel. I am not persuaded that he was plainly wrong in this assessment such that I should intervene. 59.I have carefully considered all the other grounds of complaint in relation to the brief fees allowed that were addressed to me by Mr Leung in his oral and written submissions, but none of those matters lead me to conclude that the learned master was plainly wrong in the assessment of the reasonable period of time that ought to have been taken in the preparation for trial. 60.I must mention the summary of medical literature prepared by junior counsel for reference by the plaintiff’s experts in the preparation of the trial, for cross-examination of the defendants’ experts, and for final submissions. I agree that the fact that the summary was not produced in court did not mean that it was not “necessary or proper” to have it prepared, but I understand the learned master to have concluded that it was neither necessary nor proper, when he said that such work was impressive but not persuasive enough for him to change his assessment on the brief fee. He was plainly right in his conclusion. Even where such a summary is necessary or proper, it must be the function of the expert or experts engaged by the party to prepare such a summary for use of counsel rather than for counsel to prepare such a summary for the use of the experts. (4) Refreshers for senior and junior counsel 61.The hourly rate of senior and junior counsel was not a matter of dispute and the learned master applied those hourly rates to his assessment of an average of 7 hours’ work per day per counsel in order to calculate the refresher fee. A refresher fee based on 5 hours in court, and 1 or 2 additional hours of work, before or after court hours, inclusive of some work on weekends which is not charged separately, would normally be allowed in most cases; 5 to 6 hours a day for the run of the mill case, and 6 to 7 hours a day for a case which was heavier. My own assessment is that the work that was reasonably required in this case, given its weight and complexity, was 3 hours a day, before or after court hours, inclusive of work on weekends which was not charged separately. 62.However, in this case, the cross-examination of the plaintiff’s husband unexpectedly lasted 7 days and her sister-in-law spent 2 days in the witness box. During the period of 7 days taken up by the cross-examination of plaintiff’s husband, the work that was required to be done on the case by senior and junior counsel for the plaintiff, before and after court hours, would have reduced. The court sat for a full 5 hours for 13 out of the 19 days. The court sat for less than 5 hours on 6 days. The court sat for 4 hours or more on 4 days. It sat for only 3 hours on 14 January 2008 and 3 hours and 45 minutes on 18 January 2008. The number of days when the court rose early would have freed a total of about 6 to 7 hours for counsel to work on the case. 63.After taking into account the number of days taken up by the lengthy cross-examination of the plaintiff’s husband and the number of days when the court rose early, I am not prepared to say that the allowance by the learned master of an average of 7 hours’ work a day to calculate the refresher fee for a case of this complexity and weight fell outside the ambit within which reasonable disagreement could occur such that I should intervene upon this review and reassess the refresher fees allowed to senior and junior counsel. For these reasons, I am not prepared to say that the learned master was plainly wrong in his assessment. (5) Counsels’ fees for advising on offer of settlement (Items 1175 and 1176) 64.Prior to the resumption of trial at the end of May 2008, the defendants made a without prejudice offer settlement to the plaintiff. Senior and junior counsel advised on the offer settlement in mid-April 2008. Senior counsel charged the equivalent of 3 days’ work for such advice, and junior counsel charged the equivalent of 2 days’ work. The learned master allowed 14 hours of work, for each counsel, as being reasonable in all the circumstances, bearing in mind that both counsel had been handling the matter for quite some time, including rendering advice on liability and quantum, as well as being engaged at the trial which had lasted some 19 days before it was adjourned part heard. Bearing in mind also that quantum, assuming a finding of 100% liability, had already been agreed at that stage and that counsel only had to advise on liability and risks of liability, which was already the subject matter of previous advice, I conclude that the fees allowed by the learned master, to senior counsel in the sum of $112,000, and $63,000 to junior counsel, to be exceedingly generous. If there had been a cross summons from the defendant on this specific item, I might well have concluded that the learned master’s assessment of these fees was plainly wrong, and I might well have intervened to reduce these fees allowed by the learned master. (6) Counsels’ fees for resumed trial (Item 1177, 1178 and 1179) 65.The parties only settled the action 3 days before the resumed trial. Senior and junior counsel had spent 8 days, and 5 days, respectively in the preparation of the case for the resumption of trial and charged $640,000 and $175,000 for such preparation. The learned master allowed 14 hours of work to each counsel as being reasonably sufficient to enable them to be properly prepared for the resumed hearing. He had regard to the substantial involvement and expertise of senior and junior counsel in coming to this assessment. I am not persuaded by Mr Leung that the 8 days of work charged by senior counsel and the 5 days of work charged by junior counsel to prepare for the resumption of trial was reasonable. I am not persuaded that the assessment of the learned master, that it was reasonable for each counsel to take 14 hours to prepare for the resumption of trial, was plainly wrong such that I ought to intervene with that assessment. In allowing fees that he did, the learned master was making an exception to the general rule that preparation for the trial (including any preparation for the resumption of an adjourned trial) is normally covered in the brief fee. However, in complex and weighty cases, such as the present one, it is proper, as the learned master did in this case, to allow counsel’s fee for work done to prepare for the resumption of trial, and to assess a reasonable amount of time that counsel ought to have taken for such preparation, particularly where there is a long period of time between the adjournment and the resumption. (7) Taxation costs (Item 1211) 66.At the completion of the taxation, the learned master allowed the costs of taxation in the usual way. However, one day after the conclusion of the taxation, the plaintiff’s solicitors wrote to him informing him of their omission to bring to his attention senior counsel’s fees in the sum of $134,000 for assisting in the taxation and, specifically, in preparing a 44-page submission containing detailed tables to assist him. After considering the parties’ written submissions in respect of this new item, the learned master allowed the sum of $12,000 on the basis of either senior, or junior, counsel spending 3 hours, at the hourly rate of $4,000, to prepare a note explaining to him the special features of the case, the task undertaken by them, and the way that counsel levied their fees, in particular, the fees for their brief, their refreshers, and their advices. On his review on this item, the learned master rightly noted that counsel’s assistance in taxation was very rare indeed and required very good justification. He referred to the detailed tables and submissions prepared for him and considered them to be “more than luxury”. He confirmed his assessment of $12,000 as a reasonable sum to be awarded. 67.I can understand that assigned counsel in a legal aid case would be anxious to communicate with the law costs draftsman, or solicitor, handling the taxation of fees to ensure that all relevant matters are placed before the taxing master to support the fees that he has charged. It must, indeed, be a very exceptional case in which, firstly, assigned counsel conducts such work on instructions and renders a fee note for such work and, secondly, an even more exceptional case that counsel’s fee for such work is allowed on a party and party taxation, and the paying party made to pay these fees. If there had been a cross summons by the defendants on this item, I would have been easily persuaded to disallow this item allowed by the learned master. I am certainly not persuaded that he was plainly wrong to allow only the sum of $12,000 that he allowed in respect of “counsel’s costs” in the taxation proceedings. CONCLUSION 68.In the result, the plaintiff has succeeded on this review before me but only to the extent that I have allowed senior and junior counsels’ fees for the site visit. 69.I direct the parties to exchange, within 14 days, short and concise written submissions on the costs of these review proceedings before me, and to exchange written submissions in reply, if any, within 7 days thereafter. Upon sight of those written submissions, I will give my ruling on the costs of these proceedings.
Mr Raymond Leung, instructed by Messrs Ching & Co., for the Plaintiff Dr David Kan of Messrs Reed Smith Richards Butler, for the 1st Defendant Ms Catherine P.K. Yeung of Messrs Mayer Brown JSM, for the 2nd Defendant Ms Juliana Chan, APLAC of the Legal Aid Department | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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