Lau Yue Kui and Others v. Philip Chan & Co (A Firm)

HCMP593/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 593 OF 2007

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D E C I S I O N

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1.There are a number of applications before this court, namely, an application for leave to appeal against the Judgment dated 15 February 2013 (“Judgment”), stay of execution pending appeal, whether a certificate for two counsel should be grant for the hearing on 7 February 2013 and summary assessment of the costs awarded under the Judgment.

2.In respect of the respondent’s application for interim payment of its bills of costs, Mr Deng who appeared for it has conceded that the application has not been properly made and it was not pressed at the hearing. 

3.An additional affirmation, the 5^th affirmation of Chan Wing Hung, was filed by the respondent on 7 March 2013.  Mr Deng is only relying upon it for the purpose of the stay application.

4.The situation before this court is most unfortunate.  After years of litigation, the parties remain bogged down with procedural battles.  This must be viewed in the context that the respondent’s avowed position is to have its bills taxed. So the argument or the purpose of the appeal is to exclude the 2^nd to 6^th plaintiffs (“plaintiffs”) from the taxation. 

5.I am unable to see any merits in the proposed appeal.  I do not begin to see how the respondent can maintain that the plaintiffs do not have an interest in the taxation in light of the Consent Order (see para 7 of the Judgment). Further, despite Mr Deng’s submissions to the contrary, I am unable to see any proposed ground of appeal addressing the ruling that the interest required under s.68(2) of the Legal Practitioners Ordinance, Cap 159 does not have to be financial.

6.It should be noted that Mr Deng has withdrawn the contention that the directions made in the Judgment were without the benefit of hearing the parties. 

7.In the premises, I decline to grant leave to appeal and the stay application does not arise for consideration.

8.As regards the question of certificate for two counsel, I accept that junior counsel who appeared for the plaintiffs is of considerable experience.  On the other hand, the decision below went against the plaintiffs and there were a considerable amount of technical issues deployed by the respondent.  A certificate is justified and granted.

9.For the summary assessment of the two bills of costs in respect of the hearing below and before this court, the parties are in agreement that this court should adopt a reasonably board brush approach. 

10.In respect of the hearing below, I take into account that the quantum of the bill is considerably larger than the costs assessed by the learned Master for the respondent’s strike out application.  On the other hand, I accept that the bill in question deals with both the strike out application and the plaintiffs’ application for directions. 

11.On some of the details, I believe that there was over reliance on counsel for the drafting work, attendance of counsel is not justified for the call over hearing on 19 December 2011 and the refresher rate for the adjourned hearing on 7 November 2012 is on the high side. 

12.For the appeal before this court, I do not see why there was any need for lengthy conferences with either the lay clients or senior counsel.  Given the involvement of two solicitors, there was again over reliance on counsel for drafting work.  Further, the brief charged by junior counsel is on the high side given his involvement with the case below.  

13.Taking a board brush approach, I assess the two bills at HK$250,000 and HK$370,000 for respectively the hearing below and the appeal. 

14.Finally, Mr Deng has fairly accepted that given the results as stated above, the costs of this hearing should be borne by the respondent.  I have been asked to assess such costs summarily.  The only disagreement with the statement of costs submitted by the plaintiffs for the purpose concerns the size of the brief given that this is the third occasion when junior counsel is instructed to deal with these matters.  I assess the costs at HK$80,000.

Attendance of Chui & Lau, for the 1^st Plaintiff was excused

Mr Albert Yau, instructed by Hau, Lau, Li & Yeung, for the 2^nd to 6^th plaintiffs

Mr Earl Deng, instructed by Philip Chan & Co, for the respondent