Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Chan Yin Na v Chiu Pak Wang Leo

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
Judgment Date05 August 2011
Year2011
Judgement NumberHCPI805/2003
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI804B/2003 CHAN YIN NA v. UNION MEDICAL CENTRE LTD

HCPI 804 & 805/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 804 OF 2003

---------------------------------

BETWEEN

CHAN YIN NA Plaintiff
and
UNION MEDICAL CENTRE LIMITED 1st Defendant

---------------------------------

AND

PERSONAL INJURIES ACTION NO. 805 OF 2003

---------------------------------

BETWEEN

CHAN YIN NA Plaintiff
and
CHIU PAK WANG LEO 2nd Defendant

---------------------------------

(Consolidated pursuant to the Order of the Honourable Mr Justice Suffiad on 24 January 2005)

Before : Hon Bharwaney J in Chambers (Open to Public)

Dates of Hearing : 23 February and 13 June 2011

Date of Judgment : 5 August 2011

-----------------------

J U D G M E N T

-----------------------

1. The plaintiff in this case has applied for a review of taxation before a judge pursuant to the provisions of O. 65, r. 35 of the Rules of the High Court (“RHC”). In the proceedings, the plaintiff had claimed from the defendants damages for negligence in failing to prevent her suicide attempt when she was suffering from post-partum depression. The plaintiff suffered serious injuries as a result of the suicide attempt and was rendered paraplegic. The plaintiff has been on legal aid from the commencement of these proceedings. The trial, which lasted some 19 days in January 2008, was part heard and adjourned to be resumed from 27 May 2008. On 23 May 2008, just before the resumption of the trial, the parties reached a settlement in the sum of $11m, inclusive of interests. The defendants agreed to pay the plaintiff’s costs and there was an order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

2. The plaintiff sought costs of about $11m against both defendants. The plaintiff’s costs were taxed by Master J Wong on a party and party basis. After the taxation, the plaintiff and the Director of Legal Aid sought a review of taxation of counsels’ fees pursuant to O. 62, rr. 33 and 34. Master J Wong heard the review on 4 and 10 October 2010 and, on 29 October 2010, refused the review giving reasons for his refusal. On 11 November 2010, the plaintiff issued a summons seeking a review, by the judge, of the decision of the taxing master pursuant to O. 62, r. 35.

IS THE REVIEW OF TAXATION BY A JUDGE A HEARING DE NOVO?

3. The first point that was raised before me was whether a review of taxation by a judge, pursuant to O. 62, r. 35, was a hearing de novo or whether the judge would only interfere with the decision of the taxing master if he has made an error of law, or taken into account irrelevant matters, or failed to take into account relevant matters. The latter view can be found in many judgments, including the recent judgments of Chung J in China Property Development (Holdings) Limited v Mandecly Limited (HCMP436/2005, 7 July 2008) and of Deputy Judge To, as he then was, in Lin Zhen Man t/a Yet Chong Electric Company v Topfine Machinery Company Limited [2010] 1 HKLRD 135. However, Mr Raymond Leung, counsel for the plaintiff, contended that the former view was correct.

4. The starting point must, of course, be the provisions of O. 62, r. 35 which I reproduce as follows :

“(1) Any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under rule 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item if, but only if, one of the parties to the proceedings before the taxing master requested that officer in accordance with rule 34(4) to state the reasons for his decision in respect of that item or part on the review.

...

(4) Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on the review by the taxing master but, save as aforesaid, on the hearing of any such application the judge may exercise all such powers and discretion as are vested in the taxing master in relation to the subject-matter of the application.

...

(6) On an application under this rule the judge may make such order as the circumstances require, and in particular may order the taxing master’s certificate to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the same or another taxing master for taxation.”

5. Mr Leung pointed me to the provision in r. 35(4) that on the hearing of any such application, the judge may exercise “all such powers and discretion as are vested in the taxing master in relation to the subject-matter of the application”, the only limitation being that, unless the judge otherwise directed, no further evidence was to be received on the hearing of the review, and that no ground of objection was to be raised which was not raised on the review by the taxing master. He submitted that it was plain from a literal construction of these provisions that the judge had a wide and unfettered discretion. The judge had to take into account the reasons given by the taxing master; however, he was not bound by those reasons, or by the decision of the taxing master. He submitted that I ought not to follow the decisions of Chung J and Deputy Judge To as those decisions were based on old authorities, including White v Altrincham Urban District Council [1936] 2 KB 138, which had not been followed by more recent English Court of Appeal authority, namely, Madurasingh v Penguin Electronics (a firm) [1993] 1 WLR 989 and Kawarindrasingh v White [1997] 1 WLR 785. Mr Leung embarked on a review of the English provisions and authorities to make good this point.

6. White v Altrincham Urban District Council [1936] 2 KB 138 had been decided under the old rules of the Supreme Court (“RSC”), O. 65, r. 27(38) and (41), and the equivalent County Court Rules. These provisions were replaced by the Supreme Court Costs Rules 1959, prior to their re-enactment in 1965 to become RSC O. 62 (SI No. 1776 of 1965). In due course, a new O. 62 was published in 1986 (SI No. 632 of 1986) which remained in force until the Woolf Reform in 2000. The wording of RSC O. 62, r. 35(4), providing for the jurisdiction of the judge on a review of taxation, has not changed since 1959. Our O. 62, r. 35(4) of RHC is identical to O. 62, r. 35(4) of the RSC.

7. The orthodox view, that the judge would only interfere with the decision of a taxing master in limited circumstances, which has prevailed in Hong Kong and, until recently, in England, was expressed by Slesser LJ in White v Altrincham Urban District Council [1936] 2 KB 138 at p.143 in these terms :

“In my opinion the judge had no power to disturb the discretion of the registrar expressly given him by the rule on a mere question of quantum unless the registrar has purported to exercise that discretion in a way not warranted by law. That such a view has long been held in proceedings in the Supreme Courts cannot be disputed. In Alsop v Lord Oxford the Master of the Rolls said : ‘General speaking, the decision of the Master on taxation is final; he is the sole judge of the fact, whether the business has been done, and of the proper charge to be made for it … The Court will only interfere where the Master acts upon some mistaken principle.’ Of cases since the Judicature Act it is sufficient to cite what Buckley L.J. said in In re Ogilvie’s Estate and quoted with approval by Swinfen Eady L.J. in Slingsby v Attorney-General to the effect that ‘on questions of quantum the decision of the taxing Master is generally speaking final. It must be a very exceptional case in which the Court will even listen to an application to review his decision.’”

8. Consistent with this approach, Deputy Judge To said in Lin Zhen Man t/a Yet Chong Electric Company v Topfine Machinery Company Limited [2010] 1 HKLRD 135, that :

“Generally speaking, to allow or disallow any item on a bill of costs, or to fix the amount allowed in respect of any item is a matter of discretion for a taxing master. Unless the taxing master made an error of law, took into account irrelevant matters or failed to take into account relevant matters, the court hearing the taxation review will not interfere with the decision of the taxing master: see FACV 4/2004 Yue Kwok Ying v Mak Shiu Tong and White v Altrincham Urban District Council [1936] 2 KB 138. It is also inappropriate for the court to re-assess individual items on a bill of costs: see Bank of China (Hong Kong) Limited and Villa King Enterprises Limited, HCMP 5727/1999 and HCA 15005/1999 (consolidated).”

9. In the case Deputy Judge To referred to, Bank of China (Hong Kong) Limited v Villa King Enterprises Limited, HCMP5727/1999, Waung J had said :

“Order 62, rule 35 giving the judge of the High Court a final chance to review can only arise if there is a situation when reasons have been given pursuant to a request. The judge of the High Court is therefore in a position to look at the reasons and then to see whether the reasons are valid. He is really not competent to do another taxation or to look at the taxation generally. That is the reason, for example, why Order 62, rule 35(5) provides for the court in a suitable position to appoint assessors to sit with him to deal with this review arising out of reasons given in respect any particular problem about taxation, or particular item.”

10. Mr Leung submitted that I ought not to follow these decisions and the decision of Chung J in China Property Development (Holdings) Limited v Mandecly Limited, HCMP436/2005 in which the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT