Hong Kong Lawyer

JANUARY 2018

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INDUSTRY INSIGHTS 業 界 透 視 CIVIL PROCEDURE Recovery of Solicitor Hourly Rates When the increase in the solicitors' hourly rates for party and party taxation in the civil courts in Hong Kong was announced in December 2017 there was little or no fanfare. The "benchmark" hourly rates by which claims for costs are referenced had been frozen for years and were long overdue an increase. In this context, the percentage increases are fully justified when (for example) taking into account inflation over the years. Of course, the principal justification for the rate increases is the widening "recoverability gap"; namely, the difference between what clients pay their lawyers and what they recover on a party and party taxation (assessment) of their costs by the courts. Solicitors get paid their contractual rates (in a free market) and these rates increase with inflation (particularly, with respect to commercial rents and salaries – ask any managing partner of a law firm). The longer the benchmark hourly rates stood still, the greater the "recoverability gap". In a jurisdiction where an unsuccessful party is generally ordered to pay a successful party's costs it was becoming increasingly incongruous to see the "recoverability gap" widen (while accepting that there are usually winners and losers in matters of costs). In short, the increase in the costs recovery rates is justified as a matter of principle and on commercial grounds. Much has been said about this development but a number of points are worth emphasizing: • the new rates take effect with respect to work done on or after 1 January 2018 (not before); • the new band for solicitors practising in Hong Kong with more than fifteen years' post-qualification experience is welcome; experience counts and comes at an extra cost; • the solicitor hourly rates are not set in stone. They are for guidance and going forward (as in the past) there will be cases where parties recover hourly rates that are more or less than the benchmark rates; • the increase in the hourly rates applies in the District Court and is timely in light of plans to increase its monetary jurisdiction in 2018. Costs recovery as between parties in the District Court is limited to no more than two-thirds of the costs allowed in the High Court (RDC O. 62, r. 32(1A) (Cap. 336H)). While this rule appears to be sacrosanct (for now) there is an argument it is no longer appropriate given that (leaving aside certain specialist cases) litigation in the District Court and in the High Court is essentially the same; • attention now turns to the review mechanism for the next adjustment, expected to take effect in three to four years' time. The recently adjusted hourly rates are close to the rates recommended by the Law Society of Hong Kong in 2013–14. Therefore, if history is anything to go by, there is no time to lose with the next review. - David Smyth, Senior Partner (Hong Kong), RPC 民事訴訟程序 追回律師每小時收費率 在香港民事法庭中,按「訴訟各方對評基 準」評定訟費時適用的律師每小時收費率 將會提高,消息在2017年12月公布的時 候,幾可說完全沒有大鑼大鼓的張揚一 番。訟費申索所參考的每小時收費率「基 準」凍結多年不變,早就該提高的了。 在 這 方 面 , 當 ( 例 如 ) 考 慮 到 多 年 來 的 通 脹,提高百分率就會完全合情合理。當 然,「追討的差額」不斷擴大才是提高律 師收費率的主要理由;「追討的差額」就 是當事人支付給本身律師的費用和他們討 回的訟費之間的差額,而討回的訟費是由 法庭按訴訟各方對評基準評定(評估)的。 (在自由市場)律師費用是按合約費率支付 的,費用跟隨通脹(尤其是商廈租金和薪 酬――隨便問一位律師行的管理合夥人 就清楚)增加。每小時收費率基準企穩不 增,時間越長,「追討的差額」也越大。 在敗訴方通常被命令支付勝訴方訟費的司 法管轄區裡,「追討的差額」擴大是眼前 所見越來越與令人感覺格格不入的事(同 時接受在訟費的問題上,通常是有人贏也 有人輸)。 簡而言之,提高訟費收回率在原則上是合 理的,基於商業理由也是合理的。 關於這方面的發展已經說了很多,不過還 有幾點值得特別一提: • 新收費率適用於2018年1月1日或之後 (不是之前)完成的工作; • 增設執業經驗(指香港執業律師在取得 執業資格後的經驗)達15年以上的組別 是件好事;經驗有價,經驗越多,費 50 www.hk-lawyer.org •  January 2018

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