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Most of the respondents to the consultation were alive to the difficulty of compiling
fair and reasonable benchmarks. Some thought them a potentially attractive
mechanism to increase predictability and consistency in costs awards, but expressing
reservations as to whether it would be possible to arrive at realistic benchmarks.
Other respondents thought the Proposal objectionable because benchmark costs were
likely to interfere with market forces.
The difficulties in compiling benchmark costs for general use are therefore daunting.
Moreover, some members of the Working Party considered use of the words
"benchmark costs" was undesirable as it might encourage lawyers to regard stated
levels of costs as a minimum. It was agreed that use of the term "costs indications"
was preferable. Accordingly, where the compilation and use of costs indications may
be feasible, for instance, in the context of a specialist list in relation to well-understood
and frequently recurring events in the operation of that list, such compilation and use
should be attempted. This accords with the BSCPI's response in relation to personal
injury cases, where, it was stated that a similar approach has in fact already been
adopted in that context:-
"The most practical approach was proposed and agreed and tabulated from material supplied
in relation to standard or ordinary straightforward PI cases from PI practitioners at the Bar,
Law Society, Department of Justice and Legal Aid Department in an extensive consultation
exercise in 1999. These were tabulated by Mr Justice Peter Cheung under cover of his letter
of 22nd July 1999. There was a considerable measure of agreement between the practitioners
as to the appropriate level of fees. It is thought this could save costs and time in taxation in
future. Market rates could be updated by regular reviews between practitioners in the
relevant field."
The Working Party would therefore encourage the development of costs indications as
a mechanism for fixing or providing guidance as to costs in relation to particular
procedures within the relevant specialist list as part of the procedural autonomy
accorded to such lists.
Notes
These included the Bar Association, the Law Society, the DOJ, the APAA, one set of barristers'
chambers and a solicitors' firm. The High Court masters and the District Court judges thought the
idea workable, as did the BCC and the HKFI.
Including the Consumer Council (with whom the Hon Mr Andrew Cheng agreed), the HKMLA and
two firms of solicitors.
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