由此
A A
HCPI 804/2003
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
PERSONAL INJURIES ACTION NO. 804 OF 2003 E
_________________________
F F
BETWEEN
G G
CHAN YIN HA Plaintiff
H And H
UNION MEDICAL CENTRE LIMITED 1st Defendant
I I
_________________________
J J
HCPI 805/2003
K K
IN THE HIGH COURT OF THE
L
HONG KONG SPECIAL ADMINISTRATIVE REGION L
COURT OF FIRST INSTANCE
M M
PERSONAL INJURIES ACTION NO. 805 OF 2003
N _________________________ N
BETWEEN
O O
CHAN YIN HA Plaintiff
P P
And
Q CHIU PAK WANG LEO 2nd Defendant Q
_________________________
R R
Coram : Before Master J. Wong in Chambers
S S
Date of Hearing : 4 and 10 October 2010
T Date of Decision : 29 October 2010 T
U U
V V
由此 - 2 -
A A
____________________
B
TAXATION REVIEW B
___________________
C C
INTRODUCTION
D D
1. This is a taxation review regarding Counsel fee.
E E
F F
BACKGROUND
G G
2. The Trial Judge succinctly summed up the background of the
H H
cases when he refused the application for split trial in his Ruling on 27 April
I
2006 herein. I
J J
“ 3. The plaintiff suffered from Post Partum Depression (with
a history of suicidal attempt and suicidal thoughts) and
K was admitted to the Union Hospital on 8 October 2000. K
The Union Hospital was operated by the 1 st defendant.
The plaintiff was put under the care of the 2 nd defendant.
L L
4. Whilst in the Union Hospital, the plaintiff was not
M prevented from leaving the ward on the morning of 10 M
October. The plaintiff went down to the podium of the
hospital and jumped down from there. As a result, she
N suffered serious injuries and was rendered paraplegic. N
5. She now claims against both the defendants on the basis
O O
of their negligence.”
P P
3. The Plaintiff was at all times legally-aided from the
Q commencement of these two proceedings. Parties went through 5 PTRs and Q
then, 19 days of trial at Court in January 2008. They were adjourned
R R
part-heard to be resumed for 4 days from 27 May 2008.
S S
4. Before the resumption, on 23 May 2008, they reached a
T T
settlement in the sum of $11 m, inclusive of interest. Both Defendants
U U
V V
由此 - 3 -
A A
further agreed to pay the Plaintiff’s costs and that the Plaintiff’s own costs
B
were taxed in accordance with Legal Aid Regulations. B
C C
5. On 16 March 2009, the Plaintiff filed her Bill No. 1 against the
D 2nd Defendant for its unsuccessful application for split trial. I dealt with it on D
23 June 2009. There was no review.
E E
F 6. On 24 March 2009, the Plaintiff filed her Bill No. 2 for a total of F
about $11 m legal costs against both Defendants. Parties appeared before me
G G
for a total of 5 days in September and October 2009 as well as January 2010.
H After taxation, the Plaintiff and the Director of Legal Aid sought review of H
certain Counsel fees. I heard the argument on 4 October 2010. Mr. R. Leung
I I
of Counsel represented the Plaintiff. Ms. C. Chan appeared for DLA. Mr.
J Sean Frost, Law Costs Draftsman as well as Mr. Kan of Messrs. Richards J
Butler acted for the 1st Defendant and, Ms. C. Yeung of Messrs. Mayer
K K
Brown JSM, for the 2nd Defendant. Having heard from the parties, I reserved
L my decision to be handed down. I now do so. L
M M
DECISION
N N
7. Upon consideration of all the evidence, authorities and
O O
submissions from the parties, I have decided to refuse the Review. Briefly,
P most of the documents and arguments put forward by Mr. Leung were P
canvassed and decided at the taxation. Despite the eloquent arguments put
Q Q
forward by Counsel, I have not been persuaded to change any of my rulings.
R R
GENERAL PRINCIPLES AND APPLICATION
S S
T T
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由此 - 4 -
A A
8. To decide on the Review, I remind myself of the following
B
general principles relating to taxation of Counsel fee, as per paragraph B
62/App/28 and 28A at p.1153-1154 of HKCP 2010.
C C
“ PART III ~ FEES TO COUNSEL
D D
General
E …… E
(5) Every fee paid to counsel shall be allowed in full on taxation,
F F
unless the taxing master is satisfied that the same is
excessive and unreasonable, in which event the taxing
G master shall exercise his discretion having regard to all the G
relevant circumstances and in particular to the matters set out
in paragraph 1(2). They are:
H (a) the complexity of the item or of the cause or matter in H
which it arises and the difficulty or novelty of the
I questions involved; I
(b) the skill, specialized knowledge and responsibility
required of, and the time and labour expended by,
J counsel; J
(c) the number and importance of the documents
(however brief) prepared or perused;
K K
(d) the place and circumstances in which the business
involved is transacted;
L (e) the importance of the cause or matter to the client; L
(f) where money or property is involved, its amount or
value;
M (g) any other fees and allowances payable to counsel in M
respect of other items in the same cause or matter, but
N only where work done in relation to those items has N
reduced the work which would otherwise have been
necessary in relation to the item in question.”
O O
“Note—In Re Greater Beijing Region Expressways Ltd (No.
4) (unrep. HCCW 399 of 1999) [2005] 2 H.K.C. 185, Barma
P P
J. held that with respect to counsel’s fees, the court should
first consider whether it was ‘necessary or proper’ to involve
Q counsel in the particular task. If the question was resolved in Q
favour of the receiving party, the quantum of counsel’s fees
should only be disturbed if they were excessive and
R R
unreasonable. It was not possible to equate the test to be
applied to the taxation of counsel’s fees laid down in
S para.2(5) of Pt II of the First Sch. to O.62 to that applicable S
to party and party taxation under O.62, r.28(2). A more
generous basis than party and party taxation should be
T applied to counsel’s fees, whatever the basis of taxation.” T
U U
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由此 - 5 -
A A
B
9. By applying the above principles to the present case, in B
particular the 7 factors (a) to (g), I took the following views.
C C
D (a) This is a complex case involving issues of law and factual D
argument, including the Plaintiff’s suicidal condition, the
E E
knowledge known to the Defendants, and the extent of duty of
F the Defendants towards the Plaintiff. The 2 Defendants were F
separately represented by 2 independent experienced legal
G G
teams, with Senior Counsel. They ran their defences
H differently. Amendments of pleadings and further discovery H
took place during mid-trial of the proceedings.
I I
J (b) Specialized skill in handing medical negligence case was J
required and demonstrated. Time and labour expanded by
K K
Counsel were intensive.
L L
(c) Voluminous documents were involved, including witness
M M
statements, medical records, medical reports, expert reports and
N literatures. N
O O
(d) The accident happened 2 days after the admission of the
P Plaintiff with the 1st Defendant. P
Q Q
(e) The Plaintiff was rendered paraplegic.
R R
(f) The Plaintiff claimed for over $20 m damages.
S S
T T
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由此 - 6 -
A A
(g) Assistance from Junior Counsel was obtained from the outset of
B
the proceedings in 2003, including obtaining preliminary B
advice and drafting settling pleadings. The Senior Counsel was
C C
brought into the picture in the middle of the proceedings. Both
D Counsel were relied heavily throughout the proceedings as from D
time to time, including meeting witnesses, meeting experts,
E E
advising during conference and in writing.
F F
10. With the above, I now deal with the various items of Counsel
G G
fees under review. For convenience sake, I grouped them under 7 headings.
H H
(1) Counsel fees for meeting witnesses before trial (items 947 and 948)
I I
J 11. After the last PTR on 9 November 2007, Counsel worked J
intensively to prepare for the trial scheduled to commence from 7 January
K K
2008. Among others, they met 2 witnesses, the husband and the
L sister-in-law on 20 and 21 December 2007. Senior Counsel asked for L
$128,000 and Junior Counsel, $58,500. Their respective fee notes stated:
M M
N “ 20.12.07 …… …… N
Consultation all day with Wong
O O
Po Ming, Plaintiff’s 1st Witness (6
hrs), followed by Consultation $64,000
P Note, 6 pages (2 hrs), all day P
engaged.
Q 21.12.07 Consultation all day with Wong $64,000 Q
Chor Kwan, Plaintiff’s 2nd
R Witness (7 hrs), followed by R
Consultation Note 4 pages (1 hr). ”
S “ 20.12.07 Conference with Wong ) S
Po Ming, Plaintiff’s 1st )
T Witnesses, and ) 6 hrs. $27,000.00 T
Instructing Solicitors )
U U
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由此 - 7 -
A A
21.12.07 Conference with Wong )
B Chor Kwan, Plaintiff’s ) B
2nd Witnesses, and ) 7 hrs. $31,500.00
Instructing Solicitors ) ”
C C
On these 2 occasions, the Solicitor also charged a total of $52,000.
D D
E E
12. While agreeing that all 3 fee earners were entitled to meet the
F
witnesses before trial, I took that one day for 6 hours ought to be good F
enough under part-and-party basis, roughly, 4 hours for the husband and 2
G G
hours for the sister-in-law. In so ruling, I noted that their witness statements
H
had been finalized in April 2005. They were about 18 pages and 5 pages H
respectively. After the meeting, detailed consultation notes were prepared
I I
by Senior Counsel, but no supplemental witness statement was adduced.
J J
13. Hence, I allowed all the fees for both Counsel and the Solicitors
K K
on 20 December 2007 to be borne by the Defendants. Regarding those on 21
L December 2007, I transferred them to the common fund. The Plaintiff tried L
to argue otherwise, relying on, inter alia, the actual time spent in
M M
cross-examination at trial took days. However, as pointed out by the
N Defendants, though the 2 witness eventually sat in the witness box for quite N
some days, it was not anticipated originally. Indeed, parties estimated 1.5
O O
days and 0.5 day respectively would be sufficient. Further, I also noted that
P some time was spent because of the sister-in-law, having eye-witness the P
Plaintiff to jump, was badly upset and required careful handling.
Q Q
R (2) Counsel’s fees for attending the Plaintiff’s home and the Hospital (Item R
1000 & 1001)
S S
T T
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由此 - 8 -
A A
14. Counsel continued to prepare for the trial. On 26 December
B
2007, the full team met the husband again for 2.5 hours. I allowed them in B
full. They then went to pay site visits to the Plaintiff’s home (she attempted
C C
suicide on 8 October 2000) and the Hospital (where the Plaintiff jumped).
D Having allowed the site visit paid by the Solicitors, including taking photos, D
I took the view that the Defendants should not be required to bear further
E E
Counsel fees. I also transferred them to the common fund.
F F
15. At the Review, it was argued that, among others, Counsel
G G
should not be deprived of seeing the scenes. I respectfully disagreed. It has
H never been my intention. My ruling meant nothing none than that the site H
visit by Counsel went beyond party-and-party costs. As contained in
I I
paragraph 62/App/6 at p.1149 of HKCP 2010,
J J
“On a taxation of such a basis there shall be allowed all such costs
K as were necessary or proper for the attainment of justice or for K
enforcing or defending the rights of the party whose costs are
being taxed. Unless the order specifies taxation on some other
L L
basis the costs must be taxed on the party and party basis. The
costs chargeable under a taxation between party and party are all
M that are necessary or proper to enable the adverse party to conduct M
the litigation, and no more. Any charges merely for conducting
litigation more conveniently may be called luxuries, and must be
N paid by the party incurring them (Smith v Buller (1875) L.R. 19 N
E.Q. 475).”
O O
16. As such, I stick to my ruling at taxation.
P P
Q (3) Brief fee of both the Senior and Junior Counsel (Items 1094 and 1096) Q
R R
17. Counsel charged their respective brief fee at $570,000
S ($500,000 + $70,000) and $350,000. In dealing with them, I could locate S
useful assistance at paragraph 62/App/31 at p.1154-1155 in HKCP 2010.
T T
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由此 - 9 -
A “Brief fee—A proper measure for counsel’s fees was to estimate A
what fee a hypothetical counsel, capable of conducting the case
B effectively, but unable or unwilling to insist on the high fees B
sometimes demanded by counsel of pre-eminent reputation, would
be content to take on the brief; but there was no precise standard of
C measurement, and the taxing master or the judge must, using their C
knowledge and experience, determine what was the proper figure
(Simpsons Motor Sales (London) Ltd v. Hendon Borough Council
D D
[1965] 1 W.L.R. 112; [1964] 3 All E.R. 833, per Pennycuick J.).
E It was not a sound principle on party and party taxation to treat the E
fee paid by the other party as a yardstick (Simpsons Motor Sales
(London) Ltd v. Hendon Borough Council (above) adopted in
F F
Ngan Wun Yeung v. Lok Sin Tong Benevolent Society, Kowloon &
Others [2000] 2 H.K.C. 404. Cf. Lord High Chancellor v. Wright
G [1993] 4 All E.R. 74 (a criminal legal aid case), where the Queen’s G
Bench Division approved the practice of first assessing counsel’s
fees and then having regard to the amount paid to the opposing
H counsel before coming to a final conclusion; distinguished and not H
followed in The Lok Sin Tong case).
I I
In assessing counsel’s fee it is always relevant to take into account
what work the fee, together with any refreshers, has to cover. The
J brief fee covers all the work done by way of preparation for J
representation at the trial and attendance on the first day of the
trial: Loveday v. Renton (No. 2) [1992] 3 All E.R. 184, per
K K
Hobhouse J., followed in Yeung Shu & Another v. Alfred Lam &
Co. (a firm) & Chang Pao Ching (third party) [2000] 1
L H.K.L.R.D. 231, CA). L
Preparation by counsel of his examinations-in-chief and
M cross-examinations and of his final submissions is an ordinary part M
of his conduct of a trial on behalf of his client being all part of the
N work which counsel accepts an obligation to perform by accepting N
the brief and for which he is remunerated by the brief and the
refreshers. They also cover:
O (a) Preparation work before the delivery of the brief on the faith O
of a solicitor’s statement that it will be delivered;
(b) Preparatory work in counsel satisfying himself that he
P P
should accept the brief;
(c) Evening preparation;
Q (d) Any consultation between members of the team of counsel; Q
(e) Advising experts at weekends;
(f) Conferring with experts without separate instructions;
R R
(g) Lost opportunities;
(h) Chronologies, etc.;
S (i) Skeleton arguments; S
(j) Dramatis personae;
(k) Opportunities to prepare further when the court is not sitting;
T (l) Preparation of draft terms of collateral agreements. T
U U
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由此 - 10 -
A (See Loveday v. Renton (No. 2) (above)) A
B Counsel is not normally entitled to be remunerated separately for B
necessary work which is an incident of the proper representation o
the client; rather, in a privately funded case a barrister must
C negotiate a brief fee sufficient to cover such work while in legal C
aid work the barrister may, on the legal aid taxation, require that
the brief fee and the refresher rate properly reflect the amount of
D D
work that actually had to be done (Din (Tai) v. Wandsworth LBC
(No. 3) [1983] 1 W.L.R. 1171; Loveday v. Renton (No. 2) (above).
E E
What was necessary and incidental to the preparation for
representation at trial, and hence not chargeable separately,
F F
depended on the circumstances of the case. Where counsel was
duly instructed to perform other work, in other words, work which
G was quite separate from the preparation for representation at trial G
and which was ‘necessary or proper’ within the meaning of O.62,
r.28(2), such work could be claimed as a separate and discrete item
H of costs. Counsel’s fees were plainly separate and discrete from H
the brief fee when they involved work done many months before
I the trial of the preliminary issue and the full trial. At that stage, it I
would not have been clear whether the matter was to go to trial at
all. Such work, if properly done at an early stage was important for
J establishing the future decision and conduct of the case for the J
benefit of the party concerned. It was therefore quite necessary or
proper to instruct Counsel to advise at that stage and for a properly
K K
itemized fee note to be presented for such work. (Yeung Shu &
Another v. Alfred Lam & Co. (a firm) and Chang Pao Ching
L (above)).” L
M 18. By applying these principles, I noted the followings. M
N N
(a) Junior Counsel’s assistance was brought from the
O commencement of the proceedings, Senior Counsel, in the O
middle of the same.
P P
Q Q
(b) Their assistance were indeed intensive and extensive in all
R
aspects of the proceedings, including pleadings, quantum of R
damages, discovery, witness statements, expert evidence,
S S
attending PTRs and advices as well as joint conferences from
T time to time. T
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由此 - 11 -
A A
B
(c) Before the delivery of the brief, both Counsel had incurred quite B
some fees, $550,000 for the Senior Counsel, and over $360,000,
C C
for the Junior Counsel.
D D
(d) Both Counsel did not levy their brief fee in the way as contained
E E
in the said paragraph/App/31. They indeed charged individual
F items for quite some preparation for the trial, including F
reviewing documents, meeting witnesses and experts. Senior
G G
Counsel charged $384,000 and the Junior, $155,250.
H H
(e) There was division of work between the Senior and Junior
I I
Counsel, in handling argument on law, facts and examination of
J witnesses. J
K K
19. With the above in mind, and upon perusal of all the
L chronologies, skeletons, authorities, and so forth prepared by Counsel for all L
the parties, I allowed the brief fee at $406,000 and $225,000.
M M
N N
O O
Senior Counsel Junior Counsel
P Research/Authorities 5 hours 5 hours P
Preparation for Examination of 10 hours 10 hours
Q Q
Witnesses
R Drafting Opening Submission 5 hours 10 hours R
Reading Opening, documents and 10 hours 20 hours
S S
Authorities prepared by Defendants’
T T
Counsel
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由此 - 12 -
A A
Internal Discussion 3 hours 3 hours
B
Preparation for 1st day trial 2 hours 2 hours B
st
Hearing at 1 day trial 5 hours 5 hours
C C
42 hours 50 hours
D x $8,000 x $4,500 D
$336,000 $225,000
E E
+ $70,000
F $406,000 F
G G
20. At the Review, Mr. Leung drew my particular attention to a
H number of notes prepared by Senior Counsel for cross-examination of the H
Defendant’s witnesses. They were detailed notes setting out lines of
I I
cross-examination for several witnesses with specific questions written
J down. Having carefully re-considered the matter, as a whole, under J
party-and-party taxation, I remained of the view that the preparation for
K K
examination of witness should take about 2 days work or 10 hours. It was
L reasonable time in light of the expertise of the Senior Counsel. Mr. Leung L
also took me through the Summary of Literature prepared by him for the
M M
experts. It was a succinct summary of the textbooks and materials referred to
N by the experts in their reports. Such summary was however not deployed at N
the trial. It was only kept within the Plaintiff’s team. Such work done was
O O
impressive, but was persuasive enough for me to change my assessment on
P the brief fee. P
Q Q
(4) All Refreshers for both the Senior and Junior Counsel
R R
21. The estimated length of trial was 16 days. There were 14
S S
st nd
factual witnesses, 2 for the Plaintiff, 11 for the 1 Defendant and the 2
T T
Defendant himself. There were 8 experts from both sides. On top of the 5
U U
V V
由此 - 13 -
A A
hours’ court time each day, Counsel had to work in the evening. Upon
B
considering fees having been levied, including the preparation and brief, I B
allowed 2 extra hours on average on each day. It would be reasonable
C C
throughout the whole trial.
D D
22. The hourly rates of both Counsel were allowed at $8,000 and
E E
$4,500. By applying 7 hours per day, I allowed their respective refreshers at
F $56,000 and $31,500. Maybe, sometimes Counsel would be paid “less” if F
the Court sat longer than 5 hours and more than 2 hours preparation was
G G
required. However, as the trial would took place for a period of time,
H Counsel might also be paid “more” if the hearing lasted only 2 to 3 hours on H
a particular day or indeed, no particular evening work was needed. On
I I
average, 7 hours was indeed reasonable in the circumstances.
J J
(5) Counsel fees for advising an offer (Item 1175 and 1176)
K K
L 23. On 31 January 2008, the trial was adjourned part-heard for L
about 4 months to 27 May 2008. During the adjournment, the Defendants
M M
put forward without prejudice offer to the Plaintiff. Both Counsel were
N asked to advise on the same. They charged for $240,000 and $70,000 N
respectively for a letter of advice for 4 pages.
O O
P “ 10 to 16.4.08 Considering without prejudice P
offer of Defendant’s in the sum
of $7 million inclusive of interest
Q Q
and costs. 12th April 2008,
considering legal and factual
R problems of case in depth and R
14th and 16th April 2008, Letter of
Advice, 4 pages, in consultation
S with Raymond Leung, Junior S
Counsel, total time about 3 days
T engaged, charged as refreshers. $240,000” T
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由此 - 14 -
A A
“ 11.04.08 - Perusal of typed notes )
B 16.04.08 off proceeding, ) B
considering WP offer )
under cover of Ds’ letter )
C dd. 10.04.08, ) C
consultation with Mr. )
D Ruy Barretto, S.C. & ) D
Fax Advice dd. )
16.04.08 ) 2 days $70,000.00”
E E
F F
24. I reminded myself that, by that time, both Counsel had been
G
handling the matter for quite some time, including rendering advice on G
liability and quantum as well as the 19 days at trial. Time was needed for
H H
them to review the development and revise the quantum for the purpose of
I settlement. 2 refreshers or 14 hours of work would be reasonable in the I
circumstances. I so allowed accordingly.
J J
K (6) Counsel fees for resumed trial (Item 1177, 1178 and 1179) K
L L
25. Parties only settled the cases 3 days before the resumed trial.
M To equip them for the resumed trial to finish its remaining witness for the 1st M
Defendant, both the Senior and Junior Counsel spent 8 and 5 days
N N
respectively for preparation. They therefore asked for $640,000 and
O $175,000 respectively. O
P P
“ 6.5.08 Receipt of instructions to
proceed with preparation for
Q resumption of trial in absence of Q
response from Defendants.
R R
7.5.08 Considering letter from Director
of Legal Aid 30th April 2008 and
S consultation with Junior Counsel S
Preparation for resumption of
case, reading previous papers,
T T
opening, advice, pleadings, in
U U
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由此 - 15 -
A total 1 day engaged A
B 12.5.08 Reading and noting Witness B
Statement Bundle with Notes on
Cross examination of 8
C Defendant witnesses. C
Further work on
cross-examination of Dr
D D
Anthony Lee and contradictions
on suicide precautions, all day
E engaged. E
14, 15, and Reading and updating notes with
F F
16.5.08 reference to Witness Statements
and notes of evidence and
G transcript. G
Work on Notes on different
Suicide Precautions at each
H handover, and shift and Nurse, H
with references to duties per Dr
I Anthony Lee 9 pages, about 2.5 I
days engaged.
J 16, 17 and Note on Causation and J
19.5.08 Consequences and the Crux of
the case on no suicide
K K
precautions order and Other
issues, 9 pages.
L Various notes and considering L
new House of Lords authority,
over 2.5 days engaged.
M M
19 & 20.5.08 Reading typed transcript
N evidence of case, over 300 pages N
and annotations together with
notes and Documents bundle, 1
O day engaged. O
Totally about 8 days engaged,
charged as refreshers. $640,000”
P P
“ 06.05.08 Receipt of instruction to )
Q proceed with further ) Q
preparation )
)
R R
07.05.08 – Further perusal of notes )
10.05.08 of proceeding, )
S considering letter from ) S
DLA & consultation )
with Mr. Ruy Barretto, )
T T
S.C. (inclusive of )
U U
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由此 - 16 -
A reading previous papers, ) A
opening, advices, )
B pleadings & witness ) B
statements) & further )
preparation for )
C cross-examination on ) C
the remaining nurses )
with reference to the )
D D
oral evidence thus far ) 4 days $140,000.00
E 20.05.08 Further preparation for ) E
cross-examination )
Consultation with Mr. )
F F
Ruy Barretto, S.C. )
Perusal of notes on )
G Plaintiff’s case revised ) G
by Mr. Ruy Barretto, )
S.C. ) 1 day $35,000.00”
H H
I
26. I took the view that, in light of the substantial involvement and I
expertise of both Counsel, 2 refreshers or a total of 14 hours would be
J J
sufficient to them to pick up the resumed hearing.
K K
(7) Taxation costs (Item 1211)
L L
M 27. At the end of the taxation, upon hearing from the parties I M
allowed the taxation costs under party-and-party column at $64,400.
N N
O
$ O
(a) (i) Preparation of taxation bundles
P (10 hours x $1,600 LCD + 2 hours x $4,000 Solicitors) 24,000 P
Q Q
(ii) Preparation for hearings
R (4 hours x $1,600 LCD + 3 hours x $4,000 Solicitors) 18,400 R
S S
(b) Attending taxation
T (14 hours x $1,600 LCD + 10.5 hours x $4,000 Solicitors) 64,400 T
U U
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由此 - 17 -
A A
B
28. One day after the conclusion of the taxation, the Plaintiff’s B
solicitors wrote to me informing his omission to bring to my attention the fee
C C
for Senior Counsel’s fees of the sum of $134,000 for assisting in taxation.
D Upon considering parties’ submissions in writing, I directed that: D
E E
“A hypothetical approach is to be adopted, namely, either the
Senior or Junior Counsel will spend 3 hours, at the hourly rate of
F $4,000, preparing a note explaining to the Court the special F
features of the present case, the task undertaken by them and the
way that Counsel levied their fees, in particular the Brief, the
G Refreshers and the rending of advice. G
H Hence, a further sum of $12,000 will be added to item 1211(a) of H
the disbursement column under party-and-party taxation at p.283
of the Bill.”
I I
29. Taxation is usually handled by LCDs at $1,600 per hour. They
J J
draft the bill, prepare the bundles and conduct the taxation. Solicitor
K K
sometimes will be allowed to attend the taxation to explain and argue on law
L
point. They will then be allowed to earn their usual hourly rate as in the L
capacity as a solicitor. If a solicitor will choose to draft the bill or conduct
M M
the taxation when a LCD should have been asked, he or she will only be
N
remunerated at $1,600 per hour. Counsel’s assistance in taxation is indeed N
very rare and requires very good justification.
O O
P 30. While appreciating the detailed tables and submissions P
prepared by both the Senior and Junior Counsel to assist me, with respect, I
Q Q
did consider them very “luxury” indeed. These documents could have been
R prepared by a solicitor. Further, they should not go to the extent of 44 pages. R
By adopting a hypothetical approach, $12,000 was further allowed (3 hours
S S
x $4,000 Solicitor). In my view, it was the reasonable sum to be awarded.
T T
U U
V V
由此 - 18 -
A A
Costs
B B
31. I see no reason why costs should not follow the event. There
C C
will be an order nisi that the Defendants’ costs in the Review, including all
D costs reserved, shall be borne by the Plaintiff and the Director of Legal Aid, D
to be taxed by me (1 hour reserved) if parties cannot agree on the same
E E
within 21 days from the date hereof. The Plaintiff’s own costs are taxed in
F accordance of Legal Aid Regulations. F
G G
H H
I I
J (J. Wong) J
Master of the High Court
K K
L L
Mr. R. Leung instructed by Messrs. Ching & Co. for Plaintiff.
M M
Mr. Sean Frost of Law Costs Draftsman and Mr. Kan of Messrs. Richards
N Butler for 1st Defendant. N
Ms. C. Yeung of Messrs. Mayer Brown JSM for 2nd Defendant.
O O
Ms. C. Chan of Director of Legal Aid.
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
HCPI 804/2003
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
PERSONAL INJURIES ACTION NO. 804 OF 2003 E
_________________________
F F
BETWEEN
G G
CHAN YIN HA Plaintiff
H And H
UNION MEDICAL CENTRE LIMITED 1st Defendant
I I
_________________________
J J
HCPI 805/2003
K K
IN THE HIGH COURT OF THE
L
HONG KONG SPECIAL ADMINISTRATIVE REGION L
COURT OF FIRST INSTANCE
M M
PERSONAL INJURIES ACTION NO. 805 OF 2003
N _________________________ N
BETWEEN
O O
CHAN YIN HA Plaintiff
P P
And
Q CHIU PAK WANG LEO 2nd Defendant Q
_________________________
R R
Coram : Before Master J. Wong in Chambers
S S
Date of Hearing : 4 and 10 October 2010
T Date of Decision : 29 October 2010 T
U U
V V
由此 - 2 -
A A
____________________
B
TAXATION REVIEW B
___________________
C C
INTRODUCTION
D D
1. This is a taxation review regarding Counsel fee.
E E
F F
BACKGROUND
G G
2. The Trial Judge succinctly summed up the background of the
H H
cases when he refused the application for split trial in his Ruling on 27 April
I
2006 herein. I
J J
“ 3. The plaintiff suffered from Post Partum Depression (with
a history of suicidal attempt and suicidal thoughts) and
K was admitted to the Union Hospital on 8 October 2000. K
The Union Hospital was operated by the 1 st defendant.
The plaintiff was put under the care of the 2 nd defendant.
L L
4. Whilst in the Union Hospital, the plaintiff was not
M prevented from leaving the ward on the morning of 10 M
October. The plaintiff went down to the podium of the
hospital and jumped down from there. As a result, she
N suffered serious injuries and was rendered paraplegic. N
5. She now claims against both the defendants on the basis
O O
of their negligence.”
P P
3. The Plaintiff was at all times legally-aided from the
Q commencement of these two proceedings. Parties went through 5 PTRs and Q
then, 19 days of trial at Court in January 2008. They were adjourned
R R
part-heard to be resumed for 4 days from 27 May 2008.
S S
4. Before the resumption, on 23 May 2008, they reached a
T T
settlement in the sum of $11 m, inclusive of interest. Both Defendants
U U
V V
由此 - 3 -
A A
further agreed to pay the Plaintiff’s costs and that the Plaintiff’s own costs
B
were taxed in accordance with Legal Aid Regulations. B
C C
5. On 16 March 2009, the Plaintiff filed her Bill No. 1 against the
D 2nd Defendant for its unsuccessful application for split trial. I dealt with it on D
23 June 2009. There was no review.
E E
F 6. On 24 March 2009, the Plaintiff filed her Bill No. 2 for a total of F
about $11 m legal costs against both Defendants. Parties appeared before me
G G
for a total of 5 days in September and October 2009 as well as January 2010.
H After taxation, the Plaintiff and the Director of Legal Aid sought review of H
certain Counsel fees. I heard the argument on 4 October 2010. Mr. R. Leung
I I
of Counsel represented the Plaintiff. Ms. C. Chan appeared for DLA. Mr.
J Sean Frost, Law Costs Draftsman as well as Mr. Kan of Messrs. Richards J
Butler acted for the 1st Defendant and, Ms. C. Yeung of Messrs. Mayer
K K
Brown JSM, for the 2nd Defendant. Having heard from the parties, I reserved
L my decision to be handed down. I now do so. L
M M
DECISION
N N
7. Upon consideration of all the evidence, authorities and
O O
submissions from the parties, I have decided to refuse the Review. Briefly,
P most of the documents and arguments put forward by Mr. Leung were P
canvassed and decided at the taxation. Despite the eloquent arguments put
Q Q
forward by Counsel, I have not been persuaded to change any of my rulings.
R R
GENERAL PRINCIPLES AND APPLICATION
S S
T T
U U
V V
由此 - 4 -
A A
8. To decide on the Review, I remind myself of the following
B
general principles relating to taxation of Counsel fee, as per paragraph B
62/App/28 and 28A at p.1153-1154 of HKCP 2010.
C C
“ PART III ~ FEES TO COUNSEL
D D
General
E …… E
(5) Every fee paid to counsel shall be allowed in full on taxation,
F F
unless the taxing master is satisfied that the same is
excessive and unreasonable, in which event the taxing
G master shall exercise his discretion having regard to all the G
relevant circumstances and in particular to the matters set out
in paragraph 1(2). They are:
H (a) the complexity of the item or of the cause or matter in H
which it arises and the difficulty or novelty of the
I questions involved; I
(b) the skill, specialized knowledge and responsibility
required of, and the time and labour expended by,
J counsel; J
(c) the number and importance of the documents
(however brief) prepared or perused;
K K
(d) the place and circumstances in which the business
involved is transacted;
L (e) the importance of the cause or matter to the client; L
(f) where money or property is involved, its amount or
value;
M (g) any other fees and allowances payable to counsel in M
respect of other items in the same cause or matter, but
N only where work done in relation to those items has N
reduced the work which would otherwise have been
necessary in relation to the item in question.”
O O
“Note—In Re Greater Beijing Region Expressways Ltd (No.
4) (unrep. HCCW 399 of 1999) [2005] 2 H.K.C. 185, Barma
P P
J. held that with respect to counsel’s fees, the court should
first consider whether it was ‘necessary or proper’ to involve
Q counsel in the particular task. If the question was resolved in Q
favour of the receiving party, the quantum of counsel’s fees
should only be disturbed if they were excessive and
R R
unreasonable. It was not possible to equate the test to be
applied to the taxation of counsel’s fees laid down in
S para.2(5) of Pt II of the First Sch. to O.62 to that applicable S
to party and party taxation under O.62, r.28(2). A more
generous basis than party and party taxation should be
T applied to counsel’s fees, whatever the basis of taxation.” T
U U
V V
由此 - 5 -
A A
B
9. By applying the above principles to the present case, in B
particular the 7 factors (a) to (g), I took the following views.
C C
D (a) This is a complex case involving issues of law and factual D
argument, including the Plaintiff’s suicidal condition, the
E E
knowledge known to the Defendants, and the extent of duty of
F the Defendants towards the Plaintiff. The 2 Defendants were F
separately represented by 2 independent experienced legal
G G
teams, with Senior Counsel. They ran their defences
H differently. Amendments of pleadings and further discovery H
took place during mid-trial of the proceedings.
I I
J (b) Specialized skill in handing medical negligence case was J
required and demonstrated. Time and labour expanded by
K K
Counsel were intensive.
L L
(c) Voluminous documents were involved, including witness
M M
statements, medical records, medical reports, expert reports and
N literatures. N
O O
(d) The accident happened 2 days after the admission of the
P Plaintiff with the 1st Defendant. P
Q Q
(e) The Plaintiff was rendered paraplegic.
R R
(f) The Plaintiff claimed for over $20 m damages.
S S
T T
U U
V V
由此 - 6 -
A A
(g) Assistance from Junior Counsel was obtained from the outset of
B
the proceedings in 2003, including obtaining preliminary B
advice and drafting settling pleadings. The Senior Counsel was
C C
brought into the picture in the middle of the proceedings. Both
D Counsel were relied heavily throughout the proceedings as from D
time to time, including meeting witnesses, meeting experts,
E E
advising during conference and in writing.
F F
10. With the above, I now deal with the various items of Counsel
G G
fees under review. For convenience sake, I grouped them under 7 headings.
H H
(1) Counsel fees for meeting witnesses before trial (items 947 and 948)
I I
J 11. After the last PTR on 9 November 2007, Counsel worked J
intensively to prepare for the trial scheduled to commence from 7 January
K K
2008. Among others, they met 2 witnesses, the husband and the
L sister-in-law on 20 and 21 December 2007. Senior Counsel asked for L
$128,000 and Junior Counsel, $58,500. Their respective fee notes stated:
M M
N “ 20.12.07 …… …… N
Consultation all day with Wong
O O
Po Ming, Plaintiff’s 1st Witness (6
hrs), followed by Consultation $64,000
P Note, 6 pages (2 hrs), all day P
engaged.
Q 21.12.07 Consultation all day with Wong $64,000 Q
Chor Kwan, Plaintiff’s 2nd
R Witness (7 hrs), followed by R
Consultation Note 4 pages (1 hr). ”
S “ 20.12.07 Conference with Wong ) S
Po Ming, Plaintiff’s 1st )
T Witnesses, and ) 6 hrs. $27,000.00 T
Instructing Solicitors )
U U
V V
由此 - 7 -
A A
21.12.07 Conference with Wong )
B Chor Kwan, Plaintiff’s ) B
2nd Witnesses, and ) 7 hrs. $31,500.00
Instructing Solicitors ) ”
C C
On these 2 occasions, the Solicitor also charged a total of $52,000.
D D
E E
12. While agreeing that all 3 fee earners were entitled to meet the
F
witnesses before trial, I took that one day for 6 hours ought to be good F
enough under part-and-party basis, roughly, 4 hours for the husband and 2
G G
hours for the sister-in-law. In so ruling, I noted that their witness statements
H
had been finalized in April 2005. They were about 18 pages and 5 pages H
respectively. After the meeting, detailed consultation notes were prepared
I I
by Senior Counsel, but no supplemental witness statement was adduced.
J J
13. Hence, I allowed all the fees for both Counsel and the Solicitors
K K
on 20 December 2007 to be borne by the Defendants. Regarding those on 21
L December 2007, I transferred them to the common fund. The Plaintiff tried L
to argue otherwise, relying on, inter alia, the actual time spent in
M M
cross-examination at trial took days. However, as pointed out by the
N Defendants, though the 2 witness eventually sat in the witness box for quite N
some days, it was not anticipated originally. Indeed, parties estimated 1.5
O O
days and 0.5 day respectively would be sufficient. Further, I also noted that
P some time was spent because of the sister-in-law, having eye-witness the P
Plaintiff to jump, was badly upset and required careful handling.
Q Q
R (2) Counsel’s fees for attending the Plaintiff’s home and the Hospital (Item R
1000 & 1001)
S S
T T
U U
V V
由此 - 8 -
A A
14. Counsel continued to prepare for the trial. On 26 December
B
2007, the full team met the husband again for 2.5 hours. I allowed them in B
full. They then went to pay site visits to the Plaintiff’s home (she attempted
C C
suicide on 8 October 2000) and the Hospital (where the Plaintiff jumped).
D Having allowed the site visit paid by the Solicitors, including taking photos, D
I took the view that the Defendants should not be required to bear further
E E
Counsel fees. I also transferred them to the common fund.
F F
15. At the Review, it was argued that, among others, Counsel
G G
should not be deprived of seeing the scenes. I respectfully disagreed. It has
H never been my intention. My ruling meant nothing none than that the site H
visit by Counsel went beyond party-and-party costs. As contained in
I I
paragraph 62/App/6 at p.1149 of HKCP 2010,
J J
“On a taxation of such a basis there shall be allowed all such costs
K as were necessary or proper for the attainment of justice or for K
enforcing or defending the rights of the party whose costs are
being taxed. Unless the order specifies taxation on some other
L L
basis the costs must be taxed on the party and party basis. The
costs chargeable under a taxation between party and party are all
M that are necessary or proper to enable the adverse party to conduct M
the litigation, and no more. Any charges merely for conducting
litigation more conveniently may be called luxuries, and must be
N paid by the party incurring them (Smith v Buller (1875) L.R. 19 N
E.Q. 475).”
O O
16. As such, I stick to my ruling at taxation.
P P
Q (3) Brief fee of both the Senior and Junior Counsel (Items 1094 and 1096) Q
R R
17. Counsel charged their respective brief fee at $570,000
S ($500,000 + $70,000) and $350,000. In dealing with them, I could locate S
useful assistance at paragraph 62/App/31 at p.1154-1155 in HKCP 2010.
T T
U U
V V
由此 - 9 -
A “Brief fee—A proper measure for counsel’s fees was to estimate A
what fee a hypothetical counsel, capable of conducting the case
B effectively, but unable or unwilling to insist on the high fees B
sometimes demanded by counsel of pre-eminent reputation, would
be content to take on the brief; but there was no precise standard of
C measurement, and the taxing master or the judge must, using their C
knowledge and experience, determine what was the proper figure
(Simpsons Motor Sales (London) Ltd v. Hendon Borough Council
D D
[1965] 1 W.L.R. 112; [1964] 3 All E.R. 833, per Pennycuick J.).
E It was not a sound principle on party and party taxation to treat the E
fee paid by the other party as a yardstick (Simpsons Motor Sales
(London) Ltd v. Hendon Borough Council (above) adopted in
F F
Ngan Wun Yeung v. Lok Sin Tong Benevolent Society, Kowloon &
Others [2000] 2 H.K.C. 404. Cf. Lord High Chancellor v. Wright
G [1993] 4 All E.R. 74 (a criminal legal aid case), where the Queen’s G
Bench Division approved the practice of first assessing counsel’s
fees and then having regard to the amount paid to the opposing
H counsel before coming to a final conclusion; distinguished and not H
followed in The Lok Sin Tong case).
I I
In assessing counsel’s fee it is always relevant to take into account
what work the fee, together with any refreshers, has to cover. The
J brief fee covers all the work done by way of preparation for J
representation at the trial and attendance on the first day of the
trial: Loveday v. Renton (No. 2) [1992] 3 All E.R. 184, per
K K
Hobhouse J., followed in Yeung Shu & Another v. Alfred Lam &
Co. (a firm) & Chang Pao Ching (third party) [2000] 1
L H.K.L.R.D. 231, CA). L
Preparation by counsel of his examinations-in-chief and
M cross-examinations and of his final submissions is an ordinary part M
of his conduct of a trial on behalf of his client being all part of the
N work which counsel accepts an obligation to perform by accepting N
the brief and for which he is remunerated by the brief and the
refreshers. They also cover:
O (a) Preparation work before the delivery of the brief on the faith O
of a solicitor’s statement that it will be delivered;
(b) Preparatory work in counsel satisfying himself that he
P P
should accept the brief;
(c) Evening preparation;
Q (d) Any consultation between members of the team of counsel; Q
(e) Advising experts at weekends;
(f) Conferring with experts without separate instructions;
R R
(g) Lost opportunities;
(h) Chronologies, etc.;
S (i) Skeleton arguments; S
(j) Dramatis personae;
(k) Opportunities to prepare further when the court is not sitting;
T (l) Preparation of draft terms of collateral agreements. T
U U
V V
由此 - 10 -
A (See Loveday v. Renton (No. 2) (above)) A
B Counsel is not normally entitled to be remunerated separately for B
necessary work which is an incident of the proper representation o
the client; rather, in a privately funded case a barrister must
C negotiate a brief fee sufficient to cover such work while in legal C
aid work the barrister may, on the legal aid taxation, require that
the brief fee and the refresher rate properly reflect the amount of
D D
work that actually had to be done (Din (Tai) v. Wandsworth LBC
(No. 3) [1983] 1 W.L.R. 1171; Loveday v. Renton (No. 2) (above).
E E
What was necessary and incidental to the preparation for
representation at trial, and hence not chargeable separately,
F F
depended on the circumstances of the case. Where counsel was
duly instructed to perform other work, in other words, work which
G was quite separate from the preparation for representation at trial G
and which was ‘necessary or proper’ within the meaning of O.62,
r.28(2), such work could be claimed as a separate and discrete item
H of costs. Counsel’s fees were plainly separate and discrete from H
the brief fee when they involved work done many months before
I the trial of the preliminary issue and the full trial. At that stage, it I
would not have been clear whether the matter was to go to trial at
all. Such work, if properly done at an early stage was important for
J establishing the future decision and conduct of the case for the J
benefit of the party concerned. It was therefore quite necessary or
proper to instruct Counsel to advise at that stage and for a properly
K K
itemized fee note to be presented for such work. (Yeung Shu &
Another v. Alfred Lam & Co. (a firm) and Chang Pao Ching
L (above)).” L
M 18. By applying these principles, I noted the followings. M
N N
(a) Junior Counsel’s assistance was brought from the
O commencement of the proceedings, Senior Counsel, in the O
middle of the same.
P P
Q Q
(b) Their assistance were indeed intensive and extensive in all
R
aspects of the proceedings, including pleadings, quantum of R
damages, discovery, witness statements, expert evidence,
S S
attending PTRs and advices as well as joint conferences from
T time to time. T
U U
V V
由此 - 11 -
A A
B
(c) Before the delivery of the brief, both Counsel had incurred quite B
some fees, $550,000 for the Senior Counsel, and over $360,000,
C C
for the Junior Counsel.
D D
(d) Both Counsel did not levy their brief fee in the way as contained
E E
in the said paragraph/App/31. They indeed charged individual
F items for quite some preparation for the trial, including F
reviewing documents, meeting witnesses and experts. Senior
G G
Counsel charged $384,000 and the Junior, $155,250.
H H
(e) There was division of work between the Senior and Junior
I I
Counsel, in handling argument on law, facts and examination of
J witnesses. J
K K
19. With the above in mind, and upon perusal of all the
L chronologies, skeletons, authorities, and so forth prepared by Counsel for all L
the parties, I allowed the brief fee at $406,000 and $225,000.
M M
N N
O O
Senior Counsel Junior Counsel
P Research/Authorities 5 hours 5 hours P
Preparation for Examination of 10 hours 10 hours
Q Q
Witnesses
R Drafting Opening Submission 5 hours 10 hours R
Reading Opening, documents and 10 hours 20 hours
S S
Authorities prepared by Defendants’
T T
Counsel
U U
V V
由此 - 12 -
A A
Internal Discussion 3 hours 3 hours
B
Preparation for 1st day trial 2 hours 2 hours B
st
Hearing at 1 day trial 5 hours 5 hours
C C
42 hours 50 hours
D x $8,000 x $4,500 D
$336,000 $225,000
E E
+ $70,000
F $406,000 F
G G
20. At the Review, Mr. Leung drew my particular attention to a
H number of notes prepared by Senior Counsel for cross-examination of the H
Defendant’s witnesses. They were detailed notes setting out lines of
I I
cross-examination for several witnesses with specific questions written
J down. Having carefully re-considered the matter, as a whole, under J
party-and-party taxation, I remained of the view that the preparation for
K K
examination of witness should take about 2 days work or 10 hours. It was
L reasonable time in light of the expertise of the Senior Counsel. Mr. Leung L
also took me through the Summary of Literature prepared by him for the
M M
experts. It was a succinct summary of the textbooks and materials referred to
N by the experts in their reports. Such summary was however not deployed at N
the trial. It was only kept within the Plaintiff’s team. Such work done was
O O
impressive, but was persuasive enough for me to change my assessment on
P the brief fee. P
Q Q
(4) All Refreshers for both the Senior and Junior Counsel
R R
21. The estimated length of trial was 16 days. There were 14
S S
st nd
factual witnesses, 2 for the Plaintiff, 11 for the 1 Defendant and the 2
T T
Defendant himself. There were 8 experts from both sides. On top of the 5
U U
V V
由此 - 13 -
A A
hours’ court time each day, Counsel had to work in the evening. Upon
B
considering fees having been levied, including the preparation and brief, I B
allowed 2 extra hours on average on each day. It would be reasonable
C C
throughout the whole trial.
D D
22. The hourly rates of both Counsel were allowed at $8,000 and
E E
$4,500. By applying 7 hours per day, I allowed their respective refreshers at
F $56,000 and $31,500. Maybe, sometimes Counsel would be paid “less” if F
the Court sat longer than 5 hours and more than 2 hours preparation was
G G
required. However, as the trial would took place for a period of time,
H Counsel might also be paid “more” if the hearing lasted only 2 to 3 hours on H
a particular day or indeed, no particular evening work was needed. On
I I
average, 7 hours was indeed reasonable in the circumstances.
J J
(5) Counsel fees for advising an offer (Item 1175 and 1176)
K K
L 23. On 31 January 2008, the trial was adjourned part-heard for L
about 4 months to 27 May 2008. During the adjournment, the Defendants
M M
put forward without prejudice offer to the Plaintiff. Both Counsel were
N asked to advise on the same. They charged for $240,000 and $70,000 N
respectively for a letter of advice for 4 pages.
O O
P “ 10 to 16.4.08 Considering without prejudice P
offer of Defendant’s in the sum
of $7 million inclusive of interest
Q Q
and costs. 12th April 2008,
considering legal and factual
R problems of case in depth and R
14th and 16th April 2008, Letter of
Advice, 4 pages, in consultation
S with Raymond Leung, Junior S
Counsel, total time about 3 days
T engaged, charged as refreshers. $240,000” T
U U
V V
由此 - 14 -
A A
“ 11.04.08 - Perusal of typed notes )
B 16.04.08 off proceeding, ) B
considering WP offer )
under cover of Ds’ letter )
C dd. 10.04.08, ) C
consultation with Mr. )
D Ruy Barretto, S.C. & ) D
Fax Advice dd. )
16.04.08 ) 2 days $70,000.00”
E E
F F
24. I reminded myself that, by that time, both Counsel had been
G
handling the matter for quite some time, including rendering advice on G
liability and quantum as well as the 19 days at trial. Time was needed for
H H
them to review the development and revise the quantum for the purpose of
I settlement. 2 refreshers or 14 hours of work would be reasonable in the I
circumstances. I so allowed accordingly.
J J
K (6) Counsel fees for resumed trial (Item 1177, 1178 and 1179) K
L L
25. Parties only settled the cases 3 days before the resumed trial.
M To equip them for the resumed trial to finish its remaining witness for the 1st M
Defendant, both the Senior and Junior Counsel spent 8 and 5 days
N N
respectively for preparation. They therefore asked for $640,000 and
O $175,000 respectively. O
P P
“ 6.5.08 Receipt of instructions to
proceed with preparation for
Q resumption of trial in absence of Q
response from Defendants.
R R
7.5.08 Considering letter from Director
of Legal Aid 30th April 2008 and
S consultation with Junior Counsel S
Preparation for resumption of
case, reading previous papers,
T T
opening, advice, pleadings, in
U U
V V
由此 - 15 -
A total 1 day engaged A
B 12.5.08 Reading and noting Witness B
Statement Bundle with Notes on
Cross examination of 8
C Defendant witnesses. C
Further work on
cross-examination of Dr
D D
Anthony Lee and contradictions
on suicide precautions, all day
E engaged. E
14, 15, and Reading and updating notes with
F F
16.5.08 reference to Witness Statements
and notes of evidence and
G transcript. G
Work on Notes on different
Suicide Precautions at each
H handover, and shift and Nurse, H
with references to duties per Dr
I Anthony Lee 9 pages, about 2.5 I
days engaged.
J 16, 17 and Note on Causation and J
19.5.08 Consequences and the Crux of
the case on no suicide
K K
precautions order and Other
issues, 9 pages.
L Various notes and considering L
new House of Lords authority,
over 2.5 days engaged.
M M
19 & 20.5.08 Reading typed transcript
N evidence of case, over 300 pages N
and annotations together with
notes and Documents bundle, 1
O day engaged. O
Totally about 8 days engaged,
charged as refreshers. $640,000”
P P
“ 06.05.08 Receipt of instruction to )
Q proceed with further ) Q
preparation )
)
R R
07.05.08 – Further perusal of notes )
10.05.08 of proceeding, )
S considering letter from ) S
DLA & consultation )
with Mr. Ruy Barretto, )
T T
S.C. (inclusive of )
U U
V V
由此 - 16 -
A reading previous papers, ) A
opening, advices, )
B pleadings & witness ) B
statements) & further )
preparation for )
C cross-examination on ) C
the remaining nurses )
with reference to the )
D D
oral evidence thus far ) 4 days $140,000.00
E 20.05.08 Further preparation for ) E
cross-examination )
Consultation with Mr. )
F F
Ruy Barretto, S.C. )
Perusal of notes on )
G Plaintiff’s case revised ) G
by Mr. Ruy Barretto, )
S.C. ) 1 day $35,000.00”
H H
I
26. I took the view that, in light of the substantial involvement and I
expertise of both Counsel, 2 refreshers or a total of 14 hours would be
J J
sufficient to them to pick up the resumed hearing.
K K
(7) Taxation costs (Item 1211)
L L
M 27. At the end of the taxation, upon hearing from the parties I M
allowed the taxation costs under party-and-party column at $64,400.
N N
O
$ O
(a) (i) Preparation of taxation bundles
P (10 hours x $1,600 LCD + 2 hours x $4,000 Solicitors) 24,000 P
Q Q
(ii) Preparation for hearings
R (4 hours x $1,600 LCD + 3 hours x $4,000 Solicitors) 18,400 R
S S
(b) Attending taxation
T (14 hours x $1,600 LCD + 10.5 hours x $4,000 Solicitors) 64,400 T
U U
V V
由此 - 17 -
A A
B
28. One day after the conclusion of the taxation, the Plaintiff’s B
solicitors wrote to me informing his omission to bring to my attention the fee
C C
for Senior Counsel’s fees of the sum of $134,000 for assisting in taxation.
D Upon considering parties’ submissions in writing, I directed that: D
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“A hypothetical approach is to be adopted, namely, either the
Senior or Junior Counsel will spend 3 hours, at the hourly rate of
F $4,000, preparing a note explaining to the Court the special F
features of the present case, the task undertaken by them and the
way that Counsel levied their fees, in particular the Brief, the
G Refreshers and the rending of advice. G
H Hence, a further sum of $12,000 will be added to item 1211(a) of H
the disbursement column under party-and-party taxation at p.283
of the Bill.”
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29. Taxation is usually handled by LCDs at $1,600 per hour. They
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draft the bill, prepare the bundles and conduct the taxation. Solicitor
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sometimes will be allowed to attend the taxation to explain and argue on law
L
point. They will then be allowed to earn their usual hourly rate as in the L
capacity as a solicitor. If a solicitor will choose to draft the bill or conduct
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the taxation when a LCD should have been asked, he or she will only be
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remunerated at $1,600 per hour. Counsel’s assistance in taxation is indeed N
very rare and requires very good justification.
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P 30. While appreciating the detailed tables and submissions P
prepared by both the Senior and Junior Counsel to assist me, with respect, I
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did consider them very “luxury” indeed. These documents could have been
R prepared by a solicitor. Further, they should not go to the extent of 44 pages. R
By adopting a hypothetical approach, $12,000 was further allowed (3 hours
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x $4,000 Solicitor). In my view, it was the reasonable sum to be awarded.
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由此 - 18 -
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Costs
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31. I see no reason why costs should not follow the event. There
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will be an order nisi that the Defendants’ costs in the Review, including all
D costs reserved, shall be borne by the Plaintiff and the Director of Legal Aid, D
to be taxed by me (1 hour reserved) if parties cannot agree on the same
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within 21 days from the date hereof. The Plaintiff’s own costs are taxed in
F accordance of Legal Aid Regulations. F
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H H
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J (J. Wong) J
Master of the High Court
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Mr. R. Leung instructed by Messrs. Ching & Co. for Plaintiff.
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Mr. Sean Frost of Law Costs Draftsman and Mr. Kan of Messrs. Richards
N Butler for 1st Defendant. N
Ms. C. Yeung of Messrs. Mayer Brown JSM for 2nd Defendant.
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Ms. C. Chan of Director of Legal Aid.
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