Ding Xiaohong and Others v. King & Wood (A Firm)

HCMP 1817/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1817 OF 2011

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Before: Deputy High Court Judge Lok in Court

Dates of Trial: 5, 6 & 7 November 2012

Date of Judgment: 27 December 2012

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JUDGMENT

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1.This is an application for an order for taxation of certain solicitor-and-own-client bills.

Background

2.The defendant is a firm of solicitors and the plaintiffs are the former clients of the defendant.

3.In this originating summons, the plaintiffs apply for an order for taxation under s 67 of the Legal Practitioners Ordinance, Cap 159 (“the LPO”) in respect of the 5 bills (“the 5 Bills”) issued by the defendant to the plaintiffs for legal services rendered in advising and representing them in the High Court Action No 992 of 2010 (“the High Court Action”).

4.S 67 of the LPO reads:

“(1) On the application, made within 1 month of the delivery of a solicitor’s bill or a foreign lawyer’s bill, of the party chargeable therewith the Court shall, without requiring any sum to be paid into court, order that the bill shall be taxed and that no action shall be commenced thereon until the taxation is completed.

(2) If no such application is made within the period mentioned in subsection (1), then, on the application of the solicitor or the foreign lawyer, or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order –

(a) that the bill shall be taxed;

(b) that, until the taxation is completed, no action shall be commenced on the bill, and any action already commenced be stayed;

Provided that –

(i) if 12 months have expired from the delivery of the bill, of if the bill has been paid, or if a verdict has been obtained or a writ of inquiry executed in an action for the recovery of the costs covered thereby, no order shall be made on the application of the party chargeable with the bill except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the Court may think fit;

(ii) if the bill has been paid, no order under this subsection shall be made where the application for the order is made after the expiration of 12 months from the date of payment of the bill.

… … … ”

5.The particulars of the 5 Bills issued by the defendant are as follows:

Bill Number

Date of Bill

Period of services covered

Amount (HK$)

B2010L0314 (“the 1st Bill”)

29 Dec 2010

7 Nov 2010 - 15 Dec 2010

621,838.40

B2011B0202 (“the 2nd Bill”)

28 Feb 2011

16 Dec 2010 – 31 Jan 2011

5,661,709.00

B2011C0683 (“the 3rd Bill”)

31 Mar 2011

1 Feb 2011 to 11 Mar 2011

3,654,169.57

B2011G0310 (“the 4th Bill”)

30 Jul 2011

12 Mar 2011 – 15 Jul 2011

6,385,754.40

B2011I0041 (“the 5th Bill”)

5 Sep 2011

16 Jul 2011 – 25 Aug 2011

1,027,370.88

Total

17,350,842.25

6.The plaintiffs’ originating summons was issued on 19 September 2011.  There is no dispute that the 5^th Bill was issued less than 1 month of the plaintiffs’ originating summons, and so the plaintiffs are entitled to have that Bill taxed as of right.  For the 1^st to 4^th Bills, they were issued less than 12 months but more than 1 month before the plaintiffs’ originating summons, and there is a dispute between the parties as to whether the plaintiffs are entitled to have those Bills taxed and under what conditions.

7.According to s 67 of the LPO, there is a time limit for a client of a solicitor to apply for an order for taxation.  However, the time would only start to run against a client if the bill issued by the solicitor is a final bill.  Problems may arise if the solicitor is issuing “interim” bills to his client.  If these bills are true interim bills, time may not start to run against the client; whereas if the bills are “interim final” bills, the client may lose the right to taxation for failing to comply with the time limits set out in s 67.  Hence, in order to determine whether the plaintiffs are entitled to have the order for taxation, Master Ko ordered on 12 January 2012 that there be a trial on the following preliminary issues (“Master Ko’s Order”):

(a)   Are the 1^st – 4^th Bills true interim bills or are they final bills; and

(b)  Are there any special circumstances justifying any extension of time for the plaintiffs to apply for taxation under s 67(2) of the LPO.

8.Despite Master Ko’s Order, the ultimate issue before me today is whether the plaintiffs are entitled to have the 5 Bills taxed and under what conditions.  The preliminary issues identified in Master Ko’s Order are certainly relevant for the court to determine the ultimate issue, but it would be quite pointless to have a separate trial on these preliminary issues.  Both parties therefore agree that I should treat this hearing, which is supposed to be a trial on preliminary issues according to Master Ko’s Order, as the trial of the plaintiffs’ application under the originating summons.

9.Before the hearing, the plaintiffs have taken out a summons dated 18 October 2012 to adjourn the trial in this action and another summons also of the same date in the related action, High Court Action No 1727 of 2011.  Mr Barlow SC, counsel for the plaintiffs, informs me that the plaintiffs are not pursuing these applications.

Legal principles about the distinction between true interim bills and interim final bills

10.I first start with the legal principles.  In George Y C Mok & Co (a firm) v Trade Advisers Company Limited, unreported, DCCJ 18479 of 2001 (decision of HH Judge Lok on 21 August 2009), I have dealt with a similar issue about the legal effect of some “interim” bills issued by a solicitors’ firm.  In the judgment, I have set out the legal principles about the distinction between true interim bills and interim final bills:

“57.   A retainer is normally an entire contract under which the solicitor is to do certain work for his client. In the absence of a contrary agreement, the solicitor cannot seek any remuneration until that work has been completed or the retainer has been terminated in some other way. However, as litigation usually extends over a considerable period of time, the parties can agree for the solicitor to issue interim bills to cover the solicitor’s fee before the conclusion of a case. The solicitor is also entitled to issue interim bills when a “natural break” occurs in the course of protracted proceedings (Chin Yuk Lun Francis & anr. v Messrs. Lo & Lo (a firm), ibid., per Deputy Judge To in para. 10).

58.   According to Cordery on Solicitors 9^th ed., there are 2 kinds of interim bills. The first kind is called “interim statute bills”, which are so called because they comply with all the requirements of the Solicitors Act 1974 in England and the LPO in Hong Kong and result in all the consequences which flow from such compliance – the solicitor can enforce payment by suing the client, the client can obtain an order for taxation and the various time limits relating to the client’s rights to tax run from the date of their delivery. Although they are interim bills, they are also final bills in respect of the work covered by them. There can be no subsequent adjustment in the light of the outcome of the business. They are in effect complete self-contained bills of costs to date (see: Cordery on Solicitors, para. 305).

59.   The second kind is called “interim bills on account”. Such kind of bill is only a request for payment on account. If the client does not pay such bill within a stipulated or reasonable time, the solicitor can withdraw from the retainer. If the client regards the amount requested on account as excessive, he can invite the solicitor to render a statute bill which he may then have taxed. Bill on account is not the final quantification of all the work included in it, so that when preparing his later statute bill, the solicitor can assess a fair overall charge for all the work done since the commencement of the retainer in the light of the result achieved. It also does not limit any party and party costs recoverable in respect of this period to the amount of the bill on account (see: Cordery on Solicitors, paras. 308-320).

60.   The court had to deal with such distinction of the bills in the case of Chin Yuk Lun Francis & anr. v Messrs. Lo & Lo (a firm), ibid., in which Deputy High Court Judge To said the following:

‘11. If there is authority in the retainer for rendering bills prior to the conclusion of the litigation, then it is a matter of construction of the retainer whether the bills, by whatever term they are called, though usually they are called ‘interim bills’, is a final bill or just a mere statement of how things were going on. For this purpose, I respectfully adopt the meaning of the word ‘final’ in the context of a solicitor’s bill of costs as defined by Cohen J in De Cotiis v Owen Bird [1998] 51 BCLR (3ed) 272. He held at 280:

‘Some support for the interpretation advanced by the defendants, namely that a ‘ final’ account need not be the ‘last’ account, or that there may be more than one ‘final’ account, may be found in the case law on the taxation of solicitors’ bills. In this context, a ‘final account’ has been defined as an account which has two features; it will not be changed, and it covers all professional services performed within a certain time ………

………

Nevertheless, while it is not unheard of for the court to construe periodic accounts as final bills, it has been said that the courts ‘should lean against’ doing so: [Robertson, Ward, Suderman & Bowes v BC Transit (1987) 19 BCLR (2d) 1 (BC CA), at p. 9]. The appropriate question to ask is ‘whether, having regard to the dealings of the parties and the circumstances, it can be concluded that the parties intended the accounts in question to be the law firm’s final account for the work they represented’: BC Transit at p. 10’

12. Thus, in my view, ‘final’ in the context of a solicitor’s bill of costs does not mean ‘last’. It means finality, i.e. it will not be changed and it implies self containment. It is final in respect of a certain stage defined in the retainer, whether by event or by time. As a matter of construction of contract, it is possible to arrive at a construction authorising the issue of a number of periodical final accounts under a retainer, but the court should lean against such an interpretation.

13. ……… Romer & Haslam [1893] 2 QB 286 is the leading authority on how a court should approach the question of whether the bills are separate bills or a series forming one bill. Lord Esher, MR said at 293:

‘……… But a solicitor cannot be said to have sent in a final bill if he has sent in something which neither party understood nor intended to be final. Whether in the case of a series of bills each bill has been sent in as a final bill, or whether they are mere statements of account shewing how far the expenses have gone up to the time of sending of sending them in, is a question of fact to be determined on the evidence in each case, and it is a question which cannot be determined in any case upon the finding of the Court in any other case. The Court cannot lay down rules as to what is conclusive evidence binding subsequent Courts in subsequent cases; neither in equity nor in Common Law Courts can one judge bind another on a question of fact, whether the facts may or may not look exactly alike.

……… A great fact in the case for our consideration is the nature of the bills sent in and the way in which they were treated by the parties.’”

61.   Hence, the distinction is all a matter of fact. The appropriate question to ask is, whether having regard to the dealings of the parties and the circumstances, it can be concluded that the parties intended the fee in the bill was final. If the solicitor sent in something which neither party understood nor intended to be final, it cannot be said to be a final bill.”

11.The client’s right to tax a bill of a solicitor therefore depends on the court’s finding about the nature of such “interim” bill, as To DHCJ, as he then was, said the following in Chin Yuk Lun Francis & anr. v Messrs. Lo & Lo (a firm), unreported, HCMP 1142/2005 (7 July 2006) at §10:

“Thus the question arises whether a number of bills issued in respect of a litigation are separate bills or whether they are a series of bills which together form one bill. … … … If they are a series which together formed one bill, his right to depend taxation on all the bills in the series is preserved as long as he demands taxation within a month of a delivery of the final account, i.ee the last bill of the series.”

12.Ultimately, it is a question of fact for the court to determine whether an “interim” bill issued by a solicitor is a true interim bill or an interim final bill.   In this regard, To DHCJ said the following in Chin Yuk Lun Francis,  supra, at §18:

“[Whether the bill has been delivered as a final bill] is a question of fact. There are two elements here. The solicitor has to deliver the bill intending it to be a final bill and it is also intended and understood by the client to be a final bill. This question has to be answered by looking at the intention of the solicitor and the client, their conduct, the reaction of the client upon receipt of the bill and the form the bill took. No assistance could be derived from any decided case.”

13.With these principles in mind, I turn to the evidence in the present case.

Evidence at the trial

14.The parties had made a formal written contract of retainer in or about November 2010 (“the Contract of Retainer”).  Under the General Terms of Appointment included in the Appendix of the Contract of Retainer, it provided that the defendant, unless otherwise agreed upon, could issue “monthly bills” to the plaintiffs during the progress of the case.   Relying on such provision in the Contract of Retainer, the defendant issued the 5 Bills to the plaintiffs with the 1^st to 4^th Bills described as “interim bills” (中期帳單).

15.It is the plaintiffs’ case that the 1^st to 4^th Bills issued by the defendant are true interim bills.  In other words, all the 5 Bills are a series of bills which together form one bill, and so their right to taxation is preserved as the plaintiffs applied for the order for taxation within 1 month of the delivery of the last bill, i.e. the 5^th Bill.

16.Mr Ding Yu, the 2^nd plaintiff herein (“Mr Ding”), testifies on behalf of the plaintiffs’ case.  He has made 2 affirmations in support of the plaintiffs’ case.  Mr Ding gives the court an account on the following matters:

(i)  the 1^st plaintiff (Mr Ding’s sister) and Mr Ding live in Shanghai, and Mr Ding is not able to understand English;

(ii)  Mr Ding has a dispute with his younger brother about the ownership of the Citigroup Tower in Shanghai which involves substantial amount of money;

(iii)  the High Court Action is an action related to the said dispute, in which the plaintiffs were sued as the defendants;

(iv)  upon the introduction of Mr Rupert Li on 7 November 2010, the plaintiffs switched from Messrs Chu & Lau to the defendant for their legal representation in the High Court Action;

(v)  the work undertaken by the defendant related to an application for a receivership order and an application (HCMP No 1014 of 2011) for leave to appeal against such receivership order made on 10 March 2011;

(vi)  Ms Ritz Yeung (“Ms Yueng”), who was then a solicitor of the defendant, had made a representation to Mr Ding that if the plaintiffs were to succeed in the High Court Action, the plaintiffs would be entitled to recover the total legal costs from the losing parties;

(vii)  Mr Ding has provided the details of the complaints about the exorbitant charges and the questionable conduct of the defendant;

(viii)  despite the payment of the fees under the 1^st and 2^nd Bills, the plaintiffs had lodged complaints to the defendant about the fees charged by the defendant in such Bills and requested the defendant to provide a proper account of their work and how the alleged charges were arrived at;

(ix)  after the lodging of the said complaints, Ms Yeung assured the plaintiffs in January to March 2011 that the payments made by the plaintiffs in respect of the earlier bills were meant as being interim and the defendant’s overall fees would be reviewed after the conclusion of the High Court Action;

(x)  despite that the plaintiffs had not paid the 3^rd to 5^th Bills, the plaintiffs had settled all the counsel’s fees involved in the High Court Action; and

(xi)  a Notice of Change of Solicitors was filed on or about  23 August 2011 to replace the defendant as the plaintiffs’ legal representative in the High Court Action.

17.Mr Ding has been cross-examined extensively by Mr Lee, counsel for the defendant, at the trial.

18.The defendant is supposed to call Ms Yeung to testify at the trial, and she has made 3 affirmations for the purpose of the present hearing.  However, after the close of the plaintiffs’ case, Mr Lee informs the court that Ms Yeung would not be available to testify at the trial.  In such circumstances, both parties agree that the court should ignore the contents of Ms Yeung’s affirmations and they would not be evidence for the purpose of this trial.

19.Without any oral testimony to rebut the plaintiffs’ evidence, Mr Lee is trying to attack the plaintiffs’ case on two fronts.  Firstly, Mr Lee tries to rely on the documentary evidence to show that the 1^st to 4^th Bills are in substance interim final bills.  Secondly, Mr Lee submits that Mr Ding is not a truthful or reliable witness.

20.So far as documentary evidence is concerned, Mr Lee submits that each of the 5 Bills was self-contained covering the professional services provided by the defendant over a specified period of time.  All the fees charged in the Bills were in odd figures rather than round figures which would normally be the case for costs on account.  There was no mention in the Bills that the defendant had reserved the right to do an overall assessment and evaluation in their final bill.  Further, the plaintiffs had soon paid the 1^st and 2^nd Bills, and there was no mention in the official receipts that the payments were for costs and disbursement on account.  Mr Lee therefore submits that, though the 1^st to 4^th Bills were described as “interim bills”, they were in substance interim final bills.

21.In ascertaining whether the parties had intended the fee in a bill was final, the court would look at “the intention of the solicitor and the client, their conduct, the reaction of the client upon receipt of the bill and the form the bill took” (see: §12 above).  The form in which the Bills were presented to the plaintiffs is certainly one of the relevant considerations.  However, if the court were to accept the evidence of Mr Ding that there was an oral assurance by Ms Yeung that the 5 Bills were not final and the fees would be subject to review after the conclusion of the High Court Action, then it is clear that the intention of the parties was to treat the 1^st to 4^th Bills as true interim bills.  Hence, the ultimate question is whether the court should accept Mr Ding’s evidence as the truth.

22.In this regard, Mr Lee submits that Mr Ding’s allegation about the said assurance by Ms Yeung is inherently implausible, the reasons being that:

(i)  such allegation was only first raised in a letter from the 1^st and 2^nd plaintiffs to the defendant dated 6 September 20ll which was after the termination of the retainer; and

(ii)  such assertion is unsupported by any contemporaneous documents.

23.Further, Mr Lee submits that the alleged misrepresentation regarding the total recovery of legal fees in the case of victory is also unbelievable because:

(i)  such allegation was only first made in Mr Ding’s 1^st affirmation dated  21 September 2011 but not earlier;

(ii)  since the dispute between Mr Ding and his younger brother involves a sum of over US$645 million, total recovery of legal costs should never have been of much a concern to Mr Ding and it was unlikely that the parties had touched upon such subject in their discussions; and

(iii)  upon realising the incorrectness of the alleged misrepresentation by Ms Yeung in August 2011, the plaintiffs made no contemporaneous complaint to the defendant.

24.I cannot accept these arguments.  Although the plaintiffs were not completely satisfied with the amounts of the fees charged by the defendant, the latter was still the solicitors on record acting for them in the High Court Action.  Further, given the oral assurance by Ms Yeung that the defendant’s fees would be reviewed later, it would have been sensible for the plaintiffs not to pursue the complaints in the mean time.   In fact, the 1^st and 2^nd plaintiffs mentioned the assurance about the revision of fees in their letter to Ms Yeung dated 6 September 2011 which was soon after the termination of retainer.  In addition, the defendant had, in the email dated 1 September 2011 and the 2 letters dated 4 and 7 September 2011, repeatedly informed the plaintiffs that the latter were entitled to have all the Bills taxed, which, to a certain extent, reaffirmed the earlier assurance given by Ms Yeung.  Hence, I do not accept that Mr Ding’s evidence about the various assurance and representation made by Ms Yeung is some kind of fabrication made up by Mr Ding subsequently for the purpose of the present action.

25.As I see it, what is most important is that the defendant has not adduced any evidence to rebut Mr Ding’s testimony.  Apart from Ms Yeung, there are also other crucial or possibly substitute witnesses such as the 2 current partners of the defendant, Mr Ronald Arculli and Mr Rupert Li, and Ms Crystal Luk who was then Ms Yeung’s associate.  Obviously, these possible witnesses were all working extensively for the plaintiffs in the High Court Action, and Mr Arculli was also the solicitor responsible for signing the 5 Bills issued to the plaintiffs.  In the absence of any evidence to rebut Mr Ding’s evidence, there are simply insufficient reasons for the court to conclude that Mr Ding is not a truthful or reliable witness.  Further, Mr Ding’s evidence has remained unshaken despite the vigorous cross-examination by Mr Lee.  Hence, I accept his evidence as the truth.

The defendant’s authority to issue periodic interim bills

26.Mr Barlow has also advanced another argument in support of the plaintiffs’ case.  As I have mentioned above, a retainer is normally an entire contract under which the solicitor is to do certain work for his client.  In the absence of a contrary agreement, the solicitor cannot seek any remuneration until that work has been completed or the retainer has been terminated in some other way (see §10 above). In the present case, the Contract of Retainer permitted the defendant to issue “monthly bills” to the plaintiffs during the progress of the case.  However, it is clear that the 5 Bills issued by defendant are not strictly monthly bills, as each bill was issued to cover the services of the defendant for different periods of time ranging from about one-and-a-half to a few months. Mr Barlow therefore argues that the Contract of Retainer had not authorised the defendant to issue such kind of periodic and non-monthly bills to the plaintiffs.  The defendant, therefore, only had the power to issue a bill after the termination of the retainer in August 2011. In such case, the series of interim Bills would form one bill with the last Bill of the series (i.e. the 5^th Bill) as the final account.  Since the plaintiffs have applied for taxation within a month of the delivery of the final account, the right to taxation is preserved.

27.In view of my finding about the assurance given by Ms Yeung about the further adjustment and revision of fees, it is quite unnecessary for to me to rule on this particular issue.  However, I do not accept Mr Barlow’s submission that there is no ambiguity in respect of the term “monthly bill” in the Contract of Retainer with the result that the term should be construed without reference to extrinsic evidence.  To a certain degree, I agree with Mr Lee’s submission that it flouts business sense that, given the defendant had certain authority to issue interim final bills during the progress of the case, the defendant was only entitled to issue monthly bills but not, say, bi-monthly or quarterly bills.  If the plaintiffs and the defendant, by their conduct, had properly regarded the Bills issued by the defendant as final bills, which I do not accept it to be the case, and the plaintiffs had paid those Bills without any reservation, it is open to the court to find that the parties had intended the term “monthly bills” in the Contract of Retainer to cover periodic bills.  However, I have to emphasise that, since I find that the parties had intended the 1^st to 4^th Bills issued by the defendant as true interim bills, my observation on this particular issue is only obiter.

Exercise of the discretion to order taxation under s 67(2)

28.In case that I am wrong in the above analysis and that the 1^st to 4^th Bills should be regarded as interim final bills, I would also exercise the discretion under s 67 to order taxation of the 1^st to 4^th Bills in favour of the plaintiffs.

29.S. 67 sets out the criteria under which the court can order taxation after 1 month of the delivery of the bill, and one of the criteria is whether the client has paid the bill in issue.

30.The plaintiffs had not paid the 3^rd and 4^th Bills.  As the demand for taxation was made within 12 months of the delivery of those Bills, the court has a discretion to order taxation of the 3^rd and 4^th Bills under s 67(2) of the LPO.

31.The plaintiffs had paid the 1^st and 2^nd Bills, and so the position regarding those Bills is slightly different.  As the demand for taxation was made within 12 months of the payments of the 1^st and 2^nd Bills, there would be no bar to taxation under provisio (ii) of s 67(2).  However, under provisio (i), the plaintiffs have to establish “special circumstances” to justify taxation and the court can impose terms in making an order for taxation.

32.As regards what constitute special circumstances, the following legal principles are relevant:

(i)  they are something out of the ordinary, something serious to justify not only an ordinary taxation but a special one (see: Re Miller Peart [2007] 3 HKLRD 125 at §65, per Recorder Jat SC);

(ii)  the discretion to extend the limitation is a wide one and a liberal interpretation should be given to the words “special circumstances” (see: Re Solicitors [1984] HKC 346 at 349I, per Mayo J);

(iii)  each case will depend on its own facts (see: Re Miller Peart, supra, at §85);

(iv)  overcharging and false charging are well-established special circumstances (see: Re Miller Peart, supra, at §86, Re Solicitors, supra, at 349D-I, Wang Yeoh Yu Ruth v Chan Victoria [1988] 1 HKC 687 at 690I-691E, In Re Norman (1886) QBD 673 at 676 and Re A Solicitor [1961] 1 Ch 491); and

(v)  lack of particularity in the bill also constitutes a special circumstance (see: Springbok Shipping (HK) Ltd v Clayton Wong & Co [1998] 1 HKLRD 225 at 227E-F).

33.Mr Ding, in his affirmations, has set out the plaintiffs’ complaints of overcharging and false charging in some details. Since the total amount of legal costs charged by the defendant is over $17,000,000 for work covering a period of only 10 months, the plaintiffs’ complaints deserve serious investigation.  Further, the Bills contain very few particulars as to the hours spent on different items of work, and as a result it is very difficult for the plaintiffs to assess whether the fees charged by the defendant are reasonable or not.  Finally, as the court will tax the 5^th Bill in any event, it would be grossly unfair to the plaintiffs if, after the court finds that there is any instance of overcharging or false charging for the items in the 5^th Bill, the court is not allowed to investigate the propriety of the fees charged in the earlier bills and to adjust the figures accordingly.  In my judgment, these considerations amount to special circumstances to justify the taxation of the 1^st and 2^nd Bills without any condition, and they are also factors which favour the exercise of the discretion to order taxation of the 3^rd and 4^th Bills.

34.Mr Lee also submits that the plaintiffs have exhibited an unacceptably low standard of commercial morality towards the defendant and the plaintiffs only made all sort of excuses to avoid payment of the fees after the tide turned against the plaintiffs in the High Court Action. The defendant also claims that the plaintiffs could not pay the 3^rd to 5^th Bills because of cash flow problem, as shown in the email sent by Mr Yin on behalf of Mr Ding dated 20 April 2011.  Hence, Mr Lee submits that the court should impose conditions for the taxation proceedings.

35.In my judgment, there is simply no basis to support Mr Lee’s complaint in this regard.  The plaintiffs had soon paid the fees under the 1^st and 2^nd Bills with the total amount of $6,283,547.40, and the plaintiffs have settled all the counsel fees without question.  The plaintiffs did lodge complaints about the fees charged by the defendant, but Mr Ding was assured by Ms Yeung that the fees would be revised later.  Further, there is nothing to link the plaintiffs’ refusal to pay the fees with the tide of the High Court Action, as the said Action had all along been proceeding very much in favour of the plaintiffs until the receivership order was set aside upon appeal on 31 July 2011 (CACV No 193 of 2011). Finally, Mr Ding does not know English and I doubt whether the email sent by Mr Yin on his behalf did represent the true position.  Hence, this is not an appropriate case for the court to impose conditions for the taxation proceedings.

Conclusion 

36.Based on my finding that the 1^st to 4^th Bills are true interim bills, the plaintiffs are entitled to have all the 5 Bills taxed as of right.  Even if I am wrong on such finding, I would exercise the discretion to order the 1^st to 4^th Bills to be taxed without any condition.  I therefore make an order for taxation for all the 5 Bills.

37.I also make an order nisi that save the costs of the trial of the originating summons be to the plaintiffs with certificate for 1 counsel, the costs of the action be reserved pending the outcome of the taxation proceedings.  The order nisi shall be made absolute 14 days after the date of the handing down of this Judgment.

Mr Barrie Barlow SC and Mr Gary Lam, instructed by Dexter Lam & Co, for the plaintiff

Mr Lee Yee Hung, instructed by King & Wood Mallesons, for the defendant