Civil procedure — costs — summary assessment — litigant in person — principles — whether overall costs of appeal sought disproportionate — if so, whether each item necessary and its cost reasonable — Rules of the High Court (Cap. 4A, Sub.Leg.) O. 62 r. 28A — Practice Direction 14.3 paras. 13–14
The Court of Appeal dismissed P’s appeal and ordered her to pay D1–2’s costs of the appeal. Ds claimed costs of $277,817, which P disputed and suggested $1,973 instead. The Court made a summary assessment of the costs on paper.
Held, assessing Ds’ costs of the appeal at $38,482, that:
- As Ds were unrepresented, O. 62 r. 28A of the Rules of the High Court (Cap. 4A, Sub.Leg.) (‘RHC’) applied and the relevant principles were that (Fok Siu Wing v. ICAC (unrep., CACV 341/2005,  HKEC 746) applied):
(a) If a litigant in person who was gainfully employed needed to do work relating to the litigation during his working hours, the maximum costs allowed was two thirds of the sum which would have been allowed if a solicitor had done that work.
(b) If a litigant in person was unemployed or did work relating to the litigation in his spare time, he suffered no pecuniary loss and was not entitled to costs under the indemnity principle at common law. However, under O. 62 r. 28A(3), he might be allowed costs not exceeding $200 per hour based on the time a solicitor would have taken to do such work.
(c) If a litigant in person was unemployed but claimed to have suffered pecuniary loss, he would need to prove his claim by affirmation, including providing proof of his academic qualifications, working experience, loss of income etc. (See para. 4.)
- Pursuant to paras. 13–14 of Practice Direction 14.3, the Court would adopt a broad-brush approach to summary assessment and ensure that costs were not disproportionate and/or unreasonable given the nature and circumstances of the case and proceedings and the underlying objectives in O. 1A of the RHC. The court would assess costs on a global approach and an item-by-item approach. If the costs as a whole were not disproportionate, the court would accept all those items that were reasonably incurred and allow a reasonable sum. If the costs as a whole appeared to be disproportionate, then the court must be satisfied that each item of work was necessary and its cost was reasonable (Poon Shu Fan v. Wong Tin Yan  5 HKLRD 512 applied). (See para. 5.)
- Here, the issues in the appeal were not complicated. Ds’ overall costs were disproportionate and were assessed at $38,482. Inter alia:
(a) Ds’ costs of preparing for the appeal were allowed at the rate of $100 per hour as sought.
(b) Ds’ claim for photocopy charges of $2,835 was excessive and allowed at only $1,200 as submissions and attachments of not more than 300 pages must be submitted in quadruplicate (300 pages x 4 sets x $1).
(c) The claim for attendance on Ds of 100 hours was plainly excessive. Ds were father and daughter and it was unnecessary and unreasonable for them to have spent 100 hours communicating about the appeal. Given that it spanned over three years, 40 hours would be reasonable and thus the amount was $4,000. As for attendance on P based on the correspondence between the parties, three hours and so $300 was reasonable.
(d) Ds’ claim for attendance on their solicitors totalling 73 hours at $146,000 was disallowed, as no Notice to Act had ever been filed by Ds or their solicitors; and only 10 hours of Ds’ time for consulting their lawyers was allowed at $100 per hour, amounting to $1,000.
(e) Ds’ claim for $59,200 for 592 hours for the preparation and perusal of documents and preparation for the hearing was manifestly excessive and was reduced to $25,000.
(f) Ds’ bare claim for $57,400 for travel expenses was excessive and only $5,000 was allowed. (See paras. 6–17.)
Assessment of costs
This was a summary assessment of the defendants’ costs following the dismissal of the plaintiff’s appeal in a probate action. The facts are set out in the judgment.