Kwong Yuk Ngor v Vocational Training Council
District Court
Employees’ Compensation Case No 189 of 2002
Master David Chan in Chambers
17 August, 26 October 2017, 23 February, 7 November 2018

Civil procedure — costs — taxation — stale employees’ compensation claim — legal aid certificate of applicant discharged — former solicitors seeking taxation of costs — construction of “upon determination of proceedings under this regulation” in Legal Aid Regulations (Cap. 91A, Sub.Leg.) reg. 9(3) — referred to determination of main proceedings, not discharge or revocation of legal aid certificate or determination of retainer — — whether discretion under Rules of the District Court (Cap. 336H, Sub.Leg.) O. 62 r. 4(1) or r. 9D(4) to be exercised to allow taxation before determination or conclusion of proceedings

In 2002, K was granted legal aid certificates in a personal injury action (the “PI Case”) and employees’ compensation proceedings (the “EC Case”) (the “Certificate”) against R. The PI Case was settled. The Certificate was discharged in February 2008 and the EC Case had remained stale for over 9 years. From April 2009 to April 2011, the three solicitors’ firms assigned to represent K, including M&C (the “Firms”), agreed to the assessment of their costs by the Director of Legal Aid (the “Director”). However, K disagreed on the costs so assessed. In 2017, M&C filed a notice of commencement of taxation and served a bill of costs due to the Firms on the Director and K (the “Bill”) (the “Taxation Proceedings”). The Director objected to taxation, arguing that the EC Case had not been concluded. The Master stayed the Taxation Proceedings (the “Order”) under O. 62 r. 9D of the Rules of the District Court (Cap. 336H, Sub.Leg.) (“RDC”). M&C applied to vary or revoke the Order (the “Application”) and the Director, in support, contended that the applicable provision was not O. 62 r. 9D of the RDC, but reg. 9(3) of the Legal Aid Regulations (Cap. 91A, Sub.Leg.) (“LAR”). Under reg. 9(2) of LAR, on the discharge or revocation of the legal aid certificate, the retainer of the assigned solicitors or counsel would be determined forthwith; and under reg. 9(3), upon determination of the proceedings, the assigned solicitors could proceed to have their bills of costs taxed as soon as practicable. The Director argued that reg. 9(2) and (3) should be read together so that the words “upon determination of proceedings under this regulation” in reg. 9(3) referred to the discharge or revocation of a legal aid certificate; and after the determination of the retainer as a result of a legal aid certificate being discharged or revoked, the costs of the assigned solicitor should be taxed as soon as possible.

Held, dismissing the Application and affirming the Order, that:

1) The general rule was to debar taxation of costs until the conclusion of the action unless the exceptions under O. 62 r.4(1) or r. 9D(4) of the RDC applied. (Dyson Technology v German Pool Group Co Ltd(HCA 838/2011, [2014] HKEC 1557) applied). (See paras. 70–71.)

2) The words “upon determination of proceedings under this regulation” under reg. 9(3) of the LAR referred to the determination of the main proceedings. To read the phrase as meaning “upon discharge or revocation of the legal aid certificate” or “upon determination of the retainer” would be inconsistent with the purpose of the LAR (Ng Cho Chu Judy v Chan Wing Hung [2016] 1 HKLRD 1073 applied). (See paras. 72, 75, 78, 93.)

3) Inter alia, first, given the LAR was based on counterpart legislation in England, the departure of the wording of reg. 9(3) from that of its English equivalent, ie “upon determination of a retainer” must reflect an intention that reg. 9(3) carry a different meaning or effect, namely to defer taxation until the conclusion of the main proceedings. (See paras. 79, 87.)

4) Second, “proceeding” involved an action commenced in a court or an act of a judge or judicial officer. It did not include the Director’s decision to discharge or revoke a legal aid certificate under reg. 8 ,or the automatic determination of the assigned solicitor’s retainer under reg. 9(2), which did not fit into these definitions. (See paras. 83–86.)

5) Third, while the Director’s power to recover costs from a formerly aided person was subject to a six-year limitation period from the revocation or discharge of the legal aid certificate, taxation was a mere procedural requirement and not a condition precedent to recovery. Here, the Director could seek declaratory relief under reg. 9(5) to protect its claim for costs against K from becoming time-barred (Legal Services Commission v Rasool [2008] 1 WLR 2711 applied). (See paras. 90–91.)

6) As such, reg. 9(3) did not allow taxation of costs on the discharge or revocation of the legal aid certificate and the consequential termination of M&C’s retainer, before conclusion of the EC Case. The Court therefore would not exercise its discretion under O. 62 r. 4(1). (See para. 93.)

7) There was also no reason to exercise the discretion under O. 62 r. 9D(4) so as to allow the taxation of the Bill before the conclusion of the EC Case. Neither of the parties had indicated its intention or applied to proceed with or conclude the EC Case. Thus, the Court could not accept the suggestion of non-parties (M&C and the Director) that it should be deemed to be concluded (JT Stratford Ltd v Lindley [1969] 1 WLR 1547 distinguished). (See paras. 97, 99.)

8) Further, given the EC Case was extant, at its conclusion, it was possible R might be held liable for the costs claimed under the Bill. However, if such costs were taxed now under the Taxation Proceedings, R would be denied the opportunity to argue the quantum of costs and this would be utterly unfair (Big Boss Investment Ltd v So Lai Kei [2010] 1 HKLRD 793 considered). (See para. 98.)

Application

This was an application by a solicitors’ firm which had represented a formerly legally aided applicant in employees’ compensation proceedings to vary or revoke the order made by Master Lee Siu Ho staying common fund taxation proceedings. The facts are set out in the judgment.

Jurisdictions: 

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