Eric Chan & Co (A Firm) v. Wong Kwok Wang, Warren

DCCJ 1155/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1155 OF 2008

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BETWEEN

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JUDGMENT

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The Application

1.This is the Plaintiff’s summons dated 8 January, 2013 for leave to appeal subsequent to my assessment of damages handed down on 21 December, 2012 (“the Assessment Judgment”).

2.As reference can be made to the background of this case in the Assessment Judgment, I will not repeat the same here.  Suffice to say is that the Plaintiff is claiming against the Defendant for his professional services rendered as the latter’s solicitors and my assessment is on the reasonableness of the Plaintiff’s bill.  I will refer the assessment hearings as “the trial” and the hearing for leave as the “leave hearing”.  I will also adopt the same abbreviations used in the Assessment Judgment. 

Preliminary Issues

3.Before I go to the grounds of appeal,there are two preliminary issues that I need to deal with.

4.The first is that in paragraph 1 of the Plaintiff’s summons, he asks for leave to appeal out of time against my assessment.  This is clearly premised on his mistaken belief that the time within which he may launch an application for leave to appeal is 14 days only. The correct position is 28 days: O 58, r 2(4)(a), RDC.  Thus, he does not need an extension of time.

5.Another preliminary issue, which relates to the first, is whether the Plaintiff’s application should be for leave to appeal to the Court of Appeal or he may directly appeal to a District Judge pursuant to O 58, r 1, RDC.

6.The Plaintiff argues that there was never an order by his HH Judge Chow for damages to be assessed.  What the learned judge did was merely to refer the Plaintiff’s bill to the taxation master for determination of its reasonableness.

7.The Plaintiff argues that there is a subtle but more than semantic difference between determination of dispute or assessment on the quantum on the one hand and assessment of damages on the other and each has his own way to operate leading to different consequences including the appeal procedure.  He says that for the former, the Defendant firstly has to identify items of dispute and show plausible grounds of defence for objecting to individual items.  This, he says, is in accordance with the authorities in the judgments of Oldham, Li & Nie Solicitors v Wong Lin Chooi also known as Clara Chan, CACV 319/2005,  and Turner & Co v O Palomo S A, [2000] 1 WLR 37.   As for the latter, i.e. assessment of damages, the Defendant can simply put the Plaintiff to strict proof of the reasonableness of every item of his claim without the need to show any plausible grounds of defence or to identify any items of dispute at all.  The machinery for damages to be assessed is specifically provided in O 37, RDC, and a determination by a master under this provision should lie to the Court of Appeal.

8.The Plaintiff argues that according to the above authorities, the court has not gone so far as to say that there should be an assessment of damages (as opposed to an assessment of the quantum) for a solicitor’s bill.  Hefurther submits that the present case is not a damages claim, but a quantum meruit claim.  He emphasizes that this assessment process is analogous to damages to be assessed only but the authorities show that the court has not gone so far as to say they are the same.   It follows that my mandate is not one of damages to be assessed.

9.The Plaintiff further argues that the court has the “ordinary jurisdiction”, “general jurisdiction” or “normal jurisdiction” to determine or assess the reasonableness of the solicitor’s bill and this jurisdiction is independent of and does not sit well with the statutory machinery for assessment of damages under O 37, RDC.

10.The Plaintiff further adds that this difference does not affect the appeal procedure only but would also affect the outcome of the assessment.

11.I gather what the Plaintiff means is that if it is merely a determination of dispute or assessment on the quantum, he may appeal to a District Judge directly.

12.With respect, I do not agree.

13.First, the District Court is a court created by statue, and so its jurisdiction and power are limited by the provisions in the District Court Ordinance, Cap 336.  Unlike the Court of First Instance, the District Court has no inherent jurisdiction to hear all kinds of claim : see Wong Kum Chi alias Wong Kit Shan Administratrix of the estate of Lee Wing Chong v Lee Tit Ying, [2002] 1 HKLRD 420.

14.Here, HH Judge Chow has already determined the liability issue, leaving the quantum to be determined by a master.  The only relevant provision in the Rules of the District Court is O 37, r1 (Assessment of Damages).  The Plaintiff has not been able to refer me to any other provisions in the Rules of the District Court under which the assessment could have been conducted.

15.Secondly, I do not think any useful purpose can be served by distinguishing, as the Plaintiff does, between determination of dispute or assessment on the quantum on the one hand and assessment of damages on the other.  As I said, the Plaintiff further goes on to say that his claim is a quantum meruit claim.  I must confess that I do not quite follow his arguments.  To me, at the end of the day, ultimately the measure of damages is the same, i.e., the amount that the Plaintiff would have earned had the Defendant honoured the bargain and the result should be the same. The Plaintiff has not been able to tell me how the difference asserted by him would have caused different outcome in the present assessment.

16.The Plaintiff argues that for determination of dispute or assessment on the quantum, the Defendant firstly has to identify items of dispute and show plausible grounds of defence for objecting to individual items, whereas for assessment of damages, the Defendant can simply put the Plaintiff to strict proof of the reasonableness of every item without the need to show any plausible grounds of defence.

17.The fallacy of this argument is that the two are not mutually exclusive.  It is in defiance to common sense to say that in assessment of damages, what the Defendant can do is to put the Plaintiff to strict proof but cannot show any plausible grounds of defence on quantum.

18.As a matter of fact, the Plaintiff, as an experienced solicitor, was fully aware of the approach taken before and during the trial.  The Plaintiff made no objection to the approach taken and he also agreed to the approach by looking at the bill item by item and then globally on the total sum. [1]    There were Case Management Conference hearings and exchange of Lists of Documents on quantum before the trial.    Both the Plaintiff and the Defendant gave evidence on oath and were cross-examined in open court.  On the first day of the trial, upon my enquiry, the Plaintiff explained that he was not robed because he was acting in person and was not in the capacity as an advocate.  I have no doubt that the Plaintiff was well aware of the nature of the proceedings.

19.The Plaintiff argues that I should consider O 62, r 29, RHC (costs payable to a solicitor by his own client) and that the presumptions there are applicable.  As I said in the Assessment Judgment, only the Court of First Instance has the exclusive jurisdiction to tax a solicitor’s bill charged against his client.  The Rules of the District Court simply do not have the same provision.  It would be wrong for me to apply the presumptions under paragraphs (2) and (3) of O 62, r 29, RHC.   However, I have borne in mind the fact that the Plaintiff is claiming his client for his professional fees, I have therefore applied the same yardstick of “unreasonableness” in the exercise, as is evident from, for instance, in paragraph 67 of the Assessment Judgment where I said, “… the ultimate question is whether the Plaintiff charges on “letters out” to various parties are, on an overall basis, reasonable or on the reverse, of unreasonable amount”.

20.For the above reasons, I do not find any merit in the Plaintiff’s arguments.

Legal Principles

21.It is trite that pursuant to section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless the court is satisfied that, (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A(2) is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable (see KNM v HTF, HCMP 288/2011, date of judgment: 7 September 2011, at paragraphs 8 & 9).

Grounds of Appeals

22.In his 35-pages skeleton submissions, the Plaintiff challenges on 8 of the items of deductions made by me. 

23.As for the Defendant, he now adopts a tactic of non-engagement.  He says that he does not wish to engage in prolonged arguments with the Plaintiff, because doing so would provide the Plaintiff further opportunities to cash in more costs from him. 

Grounds (1) to (3):  Item No 89(A)(b),89(C)(b) and 89(D)(1)(b) of the Plaintiff’s bill (para 68 of the Assessment Judgment).

24.I have deducted $8,000 from item no 89(A)(b) (“letters out” to the Defendant), $2,667 from item no 89(C)(b) (“letters out” to Huen) and $12,000 from item no 89 (D)(1)(b) (“letters out” to law costs draftsman). 

25.Essentially, the Plaintiff is complaining that I have deducted too much. 

26.The Plaintiff argues that the Defendant’s complaint in trial was that since the Plaintiff was charging $4,000 per hour, the significant portion of the work claimed such as simple letters could have been undertaken by junior staffs, such as junior or trainee solicitors.  He submits that since the Defendant’s attack was on simple and short letters only, I should not have taken a broad-brush approach in making deductions on all the letters.  The result is that I have made deductions more than the amount being challenged by the Defendant. 

27.I do not agree.

28.It is true that at trial the Defendant’s complaint focused on simple and short letters but it would be wrong for me not to have regardto his “pleadings”, i.e., the Amended List of Objections filed on 18 May 2011, which in respect of each and every item under “letters out”,  the Defendant complained the time was excessive.   It is clear that all the “letters out” items were being challenged.  I am sure that I am entitled to look at, as I did, all these letters when making the assessment.  After all, they were placed in the bundles of the trial.   

29.The Plaintiff also argues that the Defendant has agreed with him that his charges would be $4,000 per hour.  He has kept his part of the bargain and rendered his services as the handling solicitor in accordance with the retainers, it is not up to the Defendant to now argue after completion of the services that some of the simple letters could have been delegated to some junior solicitors to reduce the claim.  The Defendant was merely basing on the assumption that there was always a junior solicitor around and be ready to do the task at the Plaintiff’s instructions.  The reality was there was none.  The Defendant was also basing on the assumption that simple letters done by junior solicitors could always save costs.  The counter argument must be the additional costs of supervision.  The simple letters are already down to 5 or 10 minutes each only, there is hardly any further room for deduction. 

30.The Plaintiff is just repeating what he said in trial.  The Defendant is certainly bound by his HH Judge Chow’s finding that he has to pay at the rate of $4,000 per hour, but here the Plaintiff does not have any time records for these letters.  He is not saying that he has actually spent 5, 10 or 15 minutes on the letters or the rates are the best estimates of the time that he has spent. He merelyrelies on the practice of taxation in the Court of First Instance that, depending on the length, the charging rates are from 5 minutes to 15 minutes.[2]  I do not think I am bound by the so called “practice”.   Ultimately, it should be an assessment on the basis of the materials before me, just as what I have done. 

31.I have not said that I made the assessment on the basis that these short or simple letters could have been delegated to junior solicitors.  I was fully aware that according to the Plaintiff, it was him who wrote all the letters, long or short.   In my judgment, a balance must be struck, employing the yardstick of unreasonableness.   Given that the Plaintiff is an experienced solicitor and is charging at the rate of $4,000 per hour, he is expected to have delivered his services, here in the context of “letters out”, in a far more efficient and time saving manner than a junior or trainee solicitor performing the same task.

32.Finally, the Plaintiff argues that whilst I have not made any deduction on the total attendance time of 18 hours 24 minutes on the law costs draftsman, I made a deduction of 3 hours on the letters to the law costs draftsman and this is an inconsistent judgment.  The Plaintiff has not elaborated on why this judgment is inconsistent.  With respect, I fail to see the reason.  As I have already made deductions on “letters out”, I should not make a further deduction on attendance, lest there would be double or over deductions. The Plaintiff also has not been able to show how I have wrongfully exercised my discretion.

33.For the above reasons, I do not find any reasonable prospect of success on this item.

Ground (4): Item No 89 (C)(a) 1-3 (para 75 of the Assessment Judgment)

34.This relates to the 3 letters from Huen under cover of which the papers of the Criminal Case were returned in early November 2004.  I refused to allow the costs of these 3 letters because they were apparently related to the Criminal Case only. 

35.The Plaintiff now draws my attention to the fact that the papers were only returned to AYCHT after the issuance and the serviceof the Taxation Proceedings.  In particular, the Plaintiff draws my attention to the fact that by a letter dated 18 October 2004 by AYCHT to Huen, the Defendant demanded, inter alia, the return of all the papers of the Criminal Case, but there was no response. 

36.The Originating Summons for the Taxation Proceedings was issued on 2 November 2004.  In paragraph 2 of the prayer, it claimed for the return of all the Defendant’s documents in the possession of Huen.  The Originating Summons was served on Huen on 4 November 2004.[3] And it was after that then Huen returned the papers in 3 lotson 5 November, 9 November and 15 November 2004.  

37.Now with my attention being drawn to this chronology of events, and to the various materials referred to above which are in the bundles, I consider these letters relate to the Taxation Proceedings and their costs should be allowed.  For these reasons, I agree that the Plaintiff has a reasonable prospect of success and should be able to succeed on this ground. 

38.If I am to assess the quantum, given that on the face of the letters, the papers returned involved a total of 37 box files and 2 bundles of documents, I agreethat the 25 minutes ($1,667) as charged by the Plaintiff are reasonable.

Ground (5): Item No 84 (para 84 of the Assessment Judgment)

39.This is about the deduction of 20 minutes from the hearing of 5 September 2005.  My reasoning for the deduction has been clearly set out in paragraph 84 of the Assessment Judgment.  The attendance note records a total time of 4 hours 20 minutes but the Plaintiff charges 5 hours.  In trial the Plaintiff accepted this discrepancy but argued that he had spent time during the lunch time in preparing the written submissions and the same had not been charged.  On this basis, I allowed a further 20 minutes for the written submissions, resulting in a deduction of 20 minutes only. 

40.The Plaintiff now submits that it has been explained during the trial that by his omission the finishing time of the afternoon session of the hearing of 5 September 2005 was not completely recorded.  As a result, the attendance note recorded the finishing time as “4:  (adjourned to 10:00 am tomorrow) to continue D’s submission”.   The Plaintiff says5 September 2005 was the first day of 2 days’ substantive hearing.  There is no reason to infer that the court adjourned early at 4:00 pm.  He submits that in the absence of other evidence, it would be just and fair if the finishing time is taken at its normal time at 4:30 pm. 

41.In trial, the Plaintiff never said that the hearing ran up to 4:30 pm.  He testified that he probably had omitted to write the time, which should be over 4:00 pm(“應該超過4點鐘”）or 4 pm odd (“4點幾”).   In my view, there is no basis for him to say that the finishing time should be taken at 4:30 pm. It is clear that he was not certain as to whether the finishing time was exactly 4 pm or after that.  As a matter of fact, he did not know.    My observation is that the Plaintiff is a rather meticulous person, it is unlikely that he would have omitted to record the exact time.   He is merely stretching the record to suit his needs.   He has not been able to prove that the finishing time was 4:30 pm. 

42.For the above reasons, I do not find any reasonable prospect of success on this item. 

Ground (6) : Item No 85 (para 85 of the Assessment Judgment)

43.This challenge concerns a deduction of 5 minutes that I made in respect of the afternoon session of the hearing of 6 September 2005. 

44.Whilst the Plaintiff accepts that according to the transcript of the hearing on that day, the afternoon session commenced at 2:35 pm.[4]   However, according to his attendance note, the time recorded was 2:30 pm because all the parties were already sitting in court waiting for the hearing to be resumed. 

45.I have to say there is nothing new in the Plaintiff’s arguments.  These materials were before me in the trial.  I was and am of the view that it is not reasonable for the Plaintiff to charge waiting time of this sort.  In any event, even if this exercise is a taxation, this is not the practice of the court. 

Ground (7) :  Item no. 89 (B)(d) (Legal Visits)

Rectification under the Slip Rule

46.First of all, the Plaintiff points out that the total time of the 4 legal visits that I have dealt with from paragraphs 87 to 95 of the Assessment Judgment are not $74,400 (18 hours 36 minutes x $4,000 per hour) but should only be $71,667 (17 hours 55 minutes x $4,000) since the total time referred by me is for the whole of the “legal visits section” which includes “letters in and out” and “telephone calls”. 

47.I was mistaken on this because the only figure shown on the Plaintiff’s bill was “18 hours 36 minutes”.  One  has to manually deduct the items for “letters in and out” and “telephone calls” in order to get the correct figure. 

48.I am of the view that this mistake can be rectified under the slip rule (O 20 r 11, RDC).  It is clear that my manifest intention is to deal with the time spent by the Plaintiff on his legal visits: see para 20/11/1, Hong Kong Civil Procedure 2013.  In any event, the Plaintiff confirms with me that the order has not been drawn-up and perfected.  Both parties also have no objection that this mistake be rectified under the relevant rule of the District Court.  Hence, on the basis that the original charges for all the 4 legal visits are $71,667 (17 hours 55 minutes x $4,000), and the total time allowed is 6 hours 1 minute ($24,067), the sum deducted should be $47,600 only but not $50,333.[5]   A sum of $2,733 should be added back to the final figure ($74,400 - $71,667). 

Ground (7)(i) : Item No 89(B)(d)1: Legal visit on 26 May 2005 (para 90 of the Assessment Judgment)

49.The Plaintiff is not satisfied with the disallowance of the morning session of the legal visit on 26 May 2005. 

50.My reason is clear and straight forward.  From the attendance note, it is clear that the morning session of the visit was on the Criminal Case only. [6]

51.The Plaintiff argues that the morning session was attended by Mr Ma, junior counsel for the Defendant in the Criminal Case.  The main reason for the visit was to urge the Defendant to settle the outstanding counsel fees. 

52.In response, the Defendant tries to adduce in court a letter dated 12 July 2010 written by counsel Mr Ma to the Defendant, which states that, according to counsel, the matter was merely a dispute between the Plaintiff and Huen.  The Defendant admits that it was due to his negligence that this letter was not before me or included as evidence in trial. 

53.Pursuant to O 59, r 10(2), RHC, the Court of Appeal shall have power to receive further evidence on questions of fact but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.  Therefore, if the Defendant wants to admit this letter as evidence, he has to satisfy the court with the prospect that the new evidence is admissible on appeal.   In general terms, he has to satisfy the court that the Ladd v. Marshall conditions apply:  see Para 59/10/8, Hong Kong Civil Procedure 2013.   However, I do not think I need to deal with this issue since I have no doubt that this letter is irrelevant.  

54.First, HH Judge Chow has already given his judgment in favour of the Plaintiff.  The view of the counsel or indeed whoever’s view as to the nature of the dispute is neither here nor there. 

55.Secondly, I have no doubt that the Plaintiff’s argument is bound to fail.  Mr Ma was merely the counsel for the Defendant in the Criminal Case.  He was not the counsel in the Taxation Proceedings.  Certainly, it is not the Plaintiff’s evidence that counsel was there to give advice, whether on pro bono basis or otherwise, as to the conduct of the Taxation Proceedings.    The purpose of the visit, in essence, was to chase for his fees and had nothing to do with the Taxation Proceedings.   Counsel was just doing what an ordinary creditor would have done.  I fail to see how the visit could be part of the costs of the Taxation Proceedings.   This ground is rejected.

Ground (7)(ii) : Item No 89(B)(d)3: Legal Visit on 2 September 2005 (para 92 of the Assessment Judgment)

56.I disallowed the Plaintiff’s costs on this legal visit for the reason that it was necessitated by Huen’s challenge of conflict of interests on the part of the Plaintiff, arising from the fact that he was the handling solicitor when Huen was acting for the Defendant in the Criminal Case and that the Plaintiff was entitled to 50% commission from the costs earned by Huen.  To tackle the challenge, the Plaintiff had to introduce T&T to the Defendant to take up the Taxation Proceedings.  I take the view that the change of solicitors was caused by the Plaintiff’s own predicament and he, as a professional, should have foreseen this challenge. 

57.The Plaintiff says I got it all wrong.  He argues that the change of solicitors was only a strategic move to do what was the best for the Defendant given the situation.  In contentious proceedings, there are bound to be many challenges in the way.  In the end, it is just a matter of how the professional legal practitioner would cope with the challenge and advise his client who ultimately would make his own decision.  He refers me to Au Leung Shuet Hung v Au Wing Lun [2012] 1 HKC 392 where Deputy High Court Judge L Chan (as he then was), relying on the Court of Appeal case in Nishimatsu-Constain-China Harbour Joint Venture v Ip Kwan & Co[2001] 1 HKLRD 84, held that if the client had given the informed consent, or consent given to the advocate to act in the knowledge of the conflict that the advocate is in, then the advocate can act for the client despite the conflict: see Para 23 of the Judgment. 

58.The Plaintiff submits that in the present case, the Defendant was fully aware of the conflict and he had also signed a letter of authorization, the relevant part of which read as follows, “… Despite (the Plaintiff) would be entitled to 50% commission on the costs of the Defendant in respect of (the Criminal Case), in which I was the 1^st defendant, I confirm that I have instructed and authorized him to handle the taxation case for me all the same”.[7]   This proves that the Defendant had clearly given his informed consent, and further that, Huen had no legitimate interests to protect in their intended application for restraining the Plaintiff to act. 

59.The case of Au Leung Shuet Hung was not referred to me in trial.  Now with this authority, I agree that the Plaintiff has an arguable case on “informed consent”.    That said, this is not the end of the discussion.   As can be seen from Au Leung Shuet Hung, the judgment refers to paragraph 10.13 of the Hong Kong Solicitors’ Guide to Professional Conduct, which read as follows:-

“10.13  Advocate should not be a Witness
 
A solicitor must not accept instructions to act for a client as an advocate if it is clear that he or a member of his firm will be called as a witness unless the evidence is purely formal.
 
Commentary
 
A solicitor must exercise his judgment whether to cease acting where he has already accepted instructions to act as an advocate and then becomes aware that he or a member of his firm will be called as a witness.
 
The circumstances in which a solicitor should continue to act must be extremely rare where it is likely that he will be called to give evidence other than that which is purely formal.
 
In exercising judgement, the solicitor should consider the nature of the evidence to be given, its importance to the case overall and the difficulties faced by the client if the solicitor were to cease to act.  The decision should then be taken in the interests of justice as a whole and not solely in the interests of the client.” (emphasis added)

60.In the present case, the Plaintiff had made an affirmation setting out in detail the background to the dispute and subsequently, after T&T had taken over the Taxation Proceedings, he continued to assist T&T and appeared in court rendering his assistance. His affirmation was a substantive one for which he charged $6,000.   His role was essentially one of a witness and this role was more than purely formal.  In his draft skeleton submissions in opposition to Huen’s allegation of conflict of interests, the Plaintiff emphasized that “his direct evidence must be necessary for the court to determine the issues between the parties”.  [8]  In my view, it matters not that the Plaintiff was instrumental in assisting the court, as I have observed, or that the Defendant benefitted from the Plaintiff’s assistance, what matters is whether the Plaintiff could properly have acted as an advocate for the Defendant.   Thus, it is arguable that he should not have taken up the role as an advocate in the first place.  The change of solicitor was therefore caused by the Plaintiff’s own predicament.   That said, I agree that on the authority of Au Leung Shuet Hung, the Plaintiff’s prospect is more than fanciful.   For this reason, I would give leave to appeal on this item. 

61.If I have to access this item, I would access it as follows.  The attendance note shows the visit was from 11:50 am to 1:15 pm, a period of 1 hour 25 minutes.[9] I would add 2 hours for travelling, making a total of 3 hours 25 minutes, which means a sum of $13,667.

Ground (7) (iii) : Item No 89(B)(d)1-4: Upward adjustment for all the 4 legal visits

62.The Plaintiff refers to what I said in paragraphs 51 and 52 of the Assessment Judgment,

51.  Further, the Plaintiff contends that there are unbilled items of work, which could have been included but have not been included.  There are also items which are short-claimed.  Though I do not accept all the items raised by the Plaintiff, I do accept that there are items which have not been included, such as legal research done by the Plaintiff for the hearing before Master Levy, a legal visit on the Defendant on 26^th April, 2005 for the purpose of responding to Huen’s affirmations, attendances at the Registry and Accounts Office for re-fund of the taxing fee deposit, attendances on the senior and junior counsels about the progress of the Taxation Proceedings, attendances on the Defendant’s wife and his sister, conferences with the law costs draftsman and T&T, and the drafting of court orders. 
 
52. In my judgment, I am entitled to take the above into account when I consider the Defendant’s challenges and making any adjustments.

63.The Plaintiff submits that for the reasons that I have said, there should be an upward adjustment of at least 2 hours in making the overall adjustment on the legal visits to include the legal visit on 26 April 2005 and the travelling/waiting time thereof, for which he has not charged. 

64.I do not agree.

65.As I have already said in the Assessment Judgment, I have considered the Defendant’s challenges in light of the materials before me and against the background that gives rise to the present proceedings, including the complexities, the nature of them and the documents involved, and considering the matter in a round, I am of the view that the final figure that I have arrived at is a reasonable sum.[10]

66.Secondly, the Plaintiff has not applied for amendment in the trial to include the legal visit of 26 April 2005. 

67.Lastly and most importantly, the AYCHT bill already includes the legal visit of 26 April, 2005 as one of the items in the bill prepared by law costs draftsman. [11]  The Plaintiff is not allowed to double charge for his services.  

Ground (8): Item No 89(E)(1)1: Drafting of the Originating Summons

68.I allowed the Plaintiff 1½ hours in the drafting of the Originating Summons.   The original charge was 3 hours.

69.The Plaintiff is not happy with the deduction.  He says that he has spent much time in drafting the Originating Summons.  As far as I can see, he is just repeating what he has testified during the trial.  I do not see anything new in his submissions. 

70.As I have set out in paragraph 105 of the Assessment Judgment, the Originating Summons is short and essentially contains a few paragraphs only.  I accept that the Plaintiff might have spent some time on checking the precedents or forms before setting out for the drafting work but in any event, 3 hours are unreasonable.  The Plaintiff reiterates that before commencing the action, he had to think long and hard.    My view is that if an experienced solicitor is asked by his client, who is being presented with a bill which he considers as extortionate, for advice, one would not need to go into extensive research in order to get an answer.  

The remedy is straight forward and obvious:  his client should apply for a taxation and this answer can readily be found in just a couple of provisions in the Legal Practitioners Ordinance, Cap. 159.  I must emphasize that the Plaintiff, an experienced solicitor, is charging at a rate of $4,000 per hour.  Reasonableness of the charges must be seen against this light. 

Other Deductions

71.Finally, the Plaintiff seems to be saying that whilst the rest of the deductions made by me with regard to items on drafting of documents, written submissions, perusal of documents and preparation of hearings have been moderate and are within the bounds of my discretion, such deductions do not seem to have a sound footing.  He argues that the overall adjustment or deduction should take into account all the circumstances including items unclaimed or short claimed and in considering whether I have correctly exercised my discretion, the same can be judged by the global approach as referred to in Poon Shu Fan v Wong Tin Yan & Anor, CACV 81/2012 (date of judgment 9 October 2012).   

72.The Plaintiff also tries to compare the present case with Poon Shu Fan to illustrate that the final figure assessed by me is manifestly low.  However, he concedes that since he has not specifically referred to these deductions in his application, he intends to leave this question open “at this stage.” 

73.Notwithstanding that the Plaintiff is not perusing on this ground, for the sake of completeness, I will briefly deal with it. 

74.First, the present case and Poon Shu Fan are entirely different cases and they turn on their own facts.  The Plaintiff was not even involved in that case.   I do not think the facts or the amount of costs assessed in that case could have any relevancy.  

75.Secondly,   I must emphasize that the stake involved in the Taxation Proceedings was less than $700,000.  Even if one gives due allowance to the complexities and the contentious nature of the case, it, by its nature, remains to be a taxation case and bearing in mind that at the end of the day the parties did not actually go to taxation,  I am of the view that the final figure is proportionate and reasonable. 

Conclusion

76.To sum up, for the reasons set out in paragraphs 46 to 48 above, the sum to be deducted from the 4 legal visits should be rectified to $47,600 pursuant to the slip rule, and consequently, a sum of $2,733 should be added back to the final figure of $505,488, giving a sum of $508,221. 

77.I would grant leave to appeal on

(i) item no 89(C)(a)1-3 (see paragraph 37 above) and

(ii) item no 89(B)(d)3 (see paragraph 60) above.

78.If the Court of Appeal allows the Plaintiff’s appeal in respect of item No 89(C)(a)1-3 and accepts my assessment, there should be another sum of $1,667 (see paragraph 38 above), giving a total sum of $509,888 (i.e. $508,221 + $1,667). 

79.If the Court of Appeal further allows item no 89(B)(d)3 and accepts my assessment, there should be another sum of $13,667 (see paragraph 61 above).

80.The proceedings have been dragged on for a protracted period of time.  Given the amount involved here is not substantial, I do hope that the parties could sensibly finalize the proceedings in a costs saving manner.

Costs

81.The Plaintiff succeeds in obtaining leave on 2 items only but fails on the rests.  Since these items are largely separately considered, I consider that the fairest way to do is to apportion the costs.  Doing the best I can, I would apportion 1/3 of the costs to the successful items and 2/3 thereof to the failed ones. 

82.I see no reason why the Plaintiff should not be responsible for the Defendant’s costs in respect of the failed items.  Both parties are acting in person.  For the Defendant, he has not submitted any written submissions.   Considering that he has to consider the Plaintiff’s summons, his 32 pages skeleton submissions, the list of authorities, prepare for and attend the hearing, I will take a broad-brush approach and summarily assess it at $1,000 (being roughly about 5 hours at the rate of $200 per hour:  see O 62, r 28A(3) RDC); 2/3 of it is $667.   Of course, the Plaintiff is entitled to have this sum set-off from the sums that the Defendant is liable to pay in these proceedings.

83.As for 1/3 of the Plaintiff’s costs, the costs should be in the cause of the appeal. 

84.These costs orders are orders nisi and shall become absolute within 14 days.

Representation

The Plaintiff, Mr. Eric Chan of Eric Chan & Co., in person

The Defendant, Mr. Wong Kwok Wang Warren, in person