Yim Tin Fook and Another v. Yu Chor Lai and Others

HCA 2613/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2613 OF 2006

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(By Original Action)

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(By Counterclaim)

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DECISION
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1.These are my short reasons for decision.

2.D8 has filed a summons to vary the costs order nisi which I made on 10 June 2015 so as to increase the quantum of costs summarily assessed in his favour.  D2/P in turn filed a summons to vary the costs assessed downwards, but his summons is out of time.  Mr Wong, acting for D8, does not oppose the plaintiff’s summons for extension of time. 

3.In my view, since the defendant has already applied to vary the costs order nisi, the order could not have been made absolute.  The parties are at liberty to argue the quantum.  The court, in addition, has power to extend time: see Hong Kong Civil ProcedureVol 1 paragraph 42/5B/1; and the case of Ma Wan Farming Ltd v Chief Executive in Council & Anr (No. 2) [1998] 2 HKLRD 314.

4.I therefore grant the time extension sought by D2/P.

5.There are a few points of principle that I would take into account before I deal with the actual quantum:

(1) Mr Lui for D2/P has urged upon me to consider that the Director of Legal Aid would not have allowed an hourly rate of above $4,000 for a senior solicitor.  I can find no authority for this proposition.

(2) Mr Wong has cited the case of Re A in support of the hourly rate claimed by him. However, with respect, what hourly rate should apply to a situation is often fact‑sensitive and in the discretion of the court.  Without disrespect, the case of Re A had not laid down any principle concerning what hourly rate to apply.  Still less, the hourly rate of a particular solicitor. 

(3) I do not think Mr Wong is at liberty to use the costs statement of another client of his which did not form part of the judgment in Re A as evidence of his appropriate hourly rate.  I accordingly disregard that costs statement.

6.I turn to the particular situation in the present case.

7.Indisputably, in the appeal before me, the parties virtually used the same bundle of documents before the learned Master with limited addition of documents.  The arguments, though not an exact re-run before the Master, had been reduced and confined eventually as a result of the change of sphere on the part of D2/P. 

8.Mr Wong had presented very short and succinct written submissions before me at the appeal.  Such succinctness should not mislead one into thinking that little effort was used in preparation, or that Mr Wong just parroted what his previous counsel has said.  Indeed, his ability to come up with a point on land law was something which even senior counsel had missed.

9.I do not see any reason why his hourly rate should be reduced because of the good and professional effort he spent to condense the arguments.

10.He appeared himself as a solicitor advocate, but I consider it was appropriate on that occasion for him to be accompanied by another solicitor.  Although, without disrespect, I do not think that the hourly rate of $4,000 should apply to the solicitor accompanying him.  I nevertheless took the exceptional step of allowing the costs of two fee earners, both being solicitors. 

11.I agree with the principles set out in paragraph 5 of Mr Wong’s submission. 

12.In deciding the appropriate hourly rate and also the amount of costs to apply, it is no different from the principles that apply in taxation.  For example, the court would take into account factors like complexity of the case, novelty of the points of law, skill and specialised knowledge required, importance of documents, volume of documents, the importance of the costs for the client and potential sums or property at stake.

13.I agree with the way in which Mr Wong looked at this case.  It was important to the client and there were difficult points of law involved concerning land law.

14.In terms of preparation time, Mr Wong reminds me that D2/P only dropped their substantive arguments concerning contract law and presented limited new arguments close to the day of the appeal hearing.  And so much costs of D8 in preparation on arguments that have been dropped by D2/P have thus been wasted. 

15.I have taken into account these wasted costs and the need to review the papers, despite the lapse of three months since the hearing before the Master. 

16.For this hearing Mr Wong has shown the court various drafts of his skeleton submissions.  Whilst I have considered them, I want to make clear that for summary assessments it is not necessary to produce these drafts.  It is self-defeating, for summary assessment is to be quick and determinative.  In deciding the appropriate amount of costs to allow, the court already would have built into those costs the need for an advocate to review papers and to come up with more than one draft before the skeleton submission can be presented to the court.

17.Overall, I consider that to suggest allowing $70,000 only to Mr Wong is an insult.  

18.Although I allow time for D2/P to extend time to file and serve the summons, I dismiss it.

19.In terms of D8’s summons, having considered all the circumstances and the principles outlined above, I am prepared to review the costs upwards and allow a total sum of $180,000. 

(Discussion as to costs)

20.For D8’s summons, I summarily assess and allow costs of $20,000 to be paid by D2/P to D8.

Mr P C Lui of Lui & Law, for the 2^nd defendant by original action and the plaintiff by counterclaim

Mr David P H Wong, of Wong, Hui & Co, for the 8^th defendant by counterclaim