Chow Mee Yee Millie v Hong Kong Mediation Services Ltd, HCSA 17/2011, Au J, 16 February 2012
The Small Claims Tribunal (“the SCT”) had dismissed the Claimant's claim against the Defendant for HK$13,440.00, being her fee as mediator, for perusing documents in preparation for an intended mediation (“the Perusal Fee”). The SCT's Order was upheld on review and the Claimant now appealed to the Court of First Instance.
By an “Application for Mediation Services” (“AMS”), two parties (“A & B”), each represented by solicitors, applied to the Defendant (a company providing mediation services), for the appointment of a mediator and other mediation services, to help them resolve a dispute.
The Defendant provided a draft agreement, “Agreement to Mediate” (“ATM”) to A & B's solicitors, to be signed by A & B with the mediator, to engage the mediator.
The Claimant, a barrister and mediator, signed a Mediator Agreement (“the MA”) with the Defendant, which provided that she appointed the Defendant to assist her in providing mediation services to mediate the dispute between A & B. The MA provided that the Claimant's hourly rate would be HK$2,800 and that she would submit to the Defendant an itemized statement, detailing the time spent and services rendered to A & B and that the Defendant would charge her 20% of the Mediator's fees, within ten days after A & B had settled the Defendant's bill.
On the date of the intended mediation, the Claimant explained the content of the ATM to A & B, but after mentioning the Perusal Fee already incurred, A & B refused to sign it and the intended mediation did not take place.
The Claimant subsequently rendered an itemised bill to the Defendant, including the Perusal Fee. The Defendant paid an amount (on a without prejudice basis) and the Claimant eventually issued proceedings in the SCT for the Perusal Fee.
The SCT dismissed the claim, holding that on a proper construction of the MA, it did not provide any express terms requiring the Defendant to pay the Claimant the Perusal Fee and that the Defendant's obligation was only to pay the Claimant after, and if, A & B had settled the fees due.
On the Claimant's application for review, the SCT confirmed the Order. On appeal, the Court of First Instance dismissed the Claimant's application for leave to appeal. It held that the meaning of the MA was clear, namely that the Defendant's contractual payment obligation was to pay the Claimant 80% of the fees she was entitled to charge within 10 days after the Defendant had collected the same from A & B. It did not, impose any independent contractual obligation on the Defendant to pay the Claimant.
This case raises an interesting issue, namely whether a barrister-mediator can share fees, as paragraph 126 of the Hong Kong Bar Association Code of Conduct prohibits a barrister from sharing or agreeing to share his fees by paying commission or otherwise a percentage of his earnings with any person. Similarly, Rule 4 of the Solicitors' Practice Rules, prohibits solicitors from sharing or agreeing to share with any person, not being a solicitor practising in Hong Kong, his profit costs in respect of any business, whether by agreeing to pay a commission on business introduced or otherwise.
Although it appears that mediators are not prohibited from fee-sharing with third parties, such as mediation service providers, barristers and solicitors are prohibited from doing so. However, it is unclear whether when barristers and solicitors act as mediators, the prohibition still applies. There is a need for the Hong Kong Bar Association and Hong Kong Law Society to clarify such.