CHINA LIGHT & POWER CO LTD AND ANOTHER v. MICHAEL EDWARD ASHTON FORD
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Civil Appeal No. 108 of 1995
Headnote
Confidentiality - legal professional privilege - whether barrister entitled to disclose and use documents and communications received as part of his instructions without client's consent. Held: on the facts no entitlement shown. Relevant authorities reviewed.
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
1995, No. 108
(Civil)
| BETWEEN | ||
| CHINA LIGHT & POWER COMPANY, LIMITED | 1st Plaintiff | |
| CASTLE PEAK POWER COMPANY LIMITED | 2nd Plaintiff (Appellant) (Respondent to Cross-Appeal) | |
| AND | ||
| MICHAEL EDWARD ASHTON FORD | Defendant (Respondent) (Cross-Appellant) |
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Coram: Hon Nazareth, V.-P., Mayo and Leong, JJ.A.
Dates of Hearing: 12, 13, 14, 15, 16, 17, 18 and 19 December 1997
Date of handing down Judgment: 15 January 1998
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J U D G M E N T
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Nazareth, V.-P. (giving the judgment of the Court) :
Introduction
1. Mr Ford, the "cross-appellant", is a barrister who was in practice in Hong Kong. On 16 February 1993 he received instructions to act for the China Light & Power Co Ltd ("CLP", the 1st plaintiff/appellant) in an inquest into the death of two persons killed in an explosion at one of CLP's power stations managed by the Castle Peak Power Company Limited (CAPCO, the 2nd plaintiff/appellant). The explosion occurred on 28 August 1992. The inquest opened on 19 April 1993. On 15 May 1993 Mr Ford's instructions were withdrawn and another counsel took his place. On 27 May 1993 the inquest concluded with the jury returning a verdict of accidental death and no fault attributable to CLP.
2. Mr Ford claimed that his professional reputation was damaged by the circumstances in which his instructions were withdrawn and he was replaced as counsel. He took legal advice and also consulted the Bar Council in England having earlier consulted the Bar Council in Hong Kong. He also retained some of the documents he had been given by CLP. In May and June 1993 Exxon Corporation ("Exxon") in Texas received letters before action in respect of Mr Ford's dismissal. Exxon, a US corporation, is the ultimate parent of the majority holder in CAPCO.
3. On 17 July 1993 CLP and CAPCO commenced proceedings in Hong Kong against Mr Ford, who by then had left Hong Kong, and obtained an injunction restraining him from making further unauthorised disclosure of the documents and requiring them to be delivered up. On the following day, they took out a writ against Mr Ford claiming breach of confidentiality and seeking an injunction to restrain him from disclosure, an order to deliver up copies or extracts from their documents, damages and an account and delivery up of any profits made by him. It was CLP that made the running in the proceedings so far as the plaintiffs were concerned, and following the convenient practice adopted by counsel and in the earlier proceedings, we use the initials CLP to refer to both plaintiffs.
4. Mr Ford had left Hong Kong earlier in July and apart from a short visit to Hong Kong about the end of that month and early August, he has been out of Hong Kong and mostly in England ever since. He originally had solicitors acting for him in Hong Kong and they filed a defence to the writ with the advice of experienced counsel. However, Mr Ford apparently found himself unable to pay his legal adviser's fees, and on 22 February 1994 his solicitors ceased to act for him. He thereafter remained unrepresented until after the order of the Privy Council to which we will come. He applied for legal aid on 28 February 1994. This was refused on the same day. On 3 March 1994 Mr Ford petitioned for his own bankruptcy in England, and on 5 March 1994 he lodged an appeal against the refusal of the Director of Legal Aid.
5. On 7 March 1994 Sears J, before whom CLP's action came, refused to await the result of Mr Ford's legal aid appeal and commenced hearing the action. On 9 March 1994, after he received information of the rejection of Mr Ford's legal aid appeal, Sears J gave judgment against Mr Ford on the issue of his liability to CLP for misuse of their confidential documents. Almost a year later, on 8 February 1995, Sears J assessed damages and gave judgment against Mr Ford in the amount of HK$321,270.13, but refused exemplary damages which CLP sought pursuant to an amendment they had made to the statement of claim.
6. On 21 April 1995 CLP appealed to the Court of Appeal against the refusal of exemplary damages by Sears J. On 11 September 1995 by a letter to the Registrar, Mr Ford submitted his notice of cross-appeal. On 30 January 1996, the Court of Appeal dismissed CLP's appeal against dismissal of their claim for exemplary damages and also struck out Mr Ford's cross-appeal. On 14 April 1997 the Privy Council heard the appeal to them by Mr Ford. Upon the concession of Mr Beloff, QC for CLP, the Privy Council held that the Court of Appeal were wrong in declining to hear Mr Ford's appeal to them simply because the grounds were submitted only in writing. The Privy Council remitted the matter to the Court of Appeal to hear Mr Ford's cross-appeal. It is thus that the matter comes to this Division of the Court of Appeal.
Whether leave to appeal required
7. Lord Thomas QC who with Mr Johnny Mok, appeared for Mr Ford, assumed that it was simply Mr Ford's appeal that he had to present and that it was not necessary for Mr Ford to secure leave to appeal out of time. However, even from the abbreviated chronology we have outlined, it is apparent that Mr Ford's notice of appeal was out of time by a very substantial period indeed. The judgment on liability being sealed on 15 March 1994, Mr Ford had until 26 April 1994 to serve a notice of appeal against the judgment on liability, i.e. 6 weeks from 15 March under O59 r4(1)(c) of the Rules of the High Court. It was nearly a year and a half later that his notice of cross-appeal arrived.
8. Lord Thomas, however, contended that it was implicit in the order of the Privy Council that there would be no time questions raised, alternatively that this was the understanding of counsel in their discussions with the Registrar of the Privy Council. Both contentions were disputed by Mr Michael Thomas SC who, with Mr Clifford Smith, appeared for CLP. However, having heard the submissions and ascertained the position as far as possible, we found nothing that would sustain Lord Thomas' submission. On the contrary, the consistent stance of CLP and Mr Beloff's submissions before the Privy Council, makes it clear that they would not have agreed to what is suggested. Nor is there anything in their Lordships' observations to support Lord Thomas' contentions. Finally, it is apparent that neither their Lordships, nor the Court of Appeal at their first and adjourned hearing of the appeal, addressed the matter of leave to cross-appeal out of time.
9. In these circumstances we had no difficulty in concluding that Mr Ford's notice of cross-appeal was out of time and accordingly that leave was required. Needless to say, no formal application for leave to appeal out of time had been filed. However, curiously, the relief sought in Mr Ford's notice of appeal included leave to appeal. Upon that basis, we permitted Lord Thomas to make an application for leave to appeal out of time.
10. We also mention that for the purposes of such application, Lord Thomas applied for leave to adduce a considerable volume of additional evidence. Helpfully Mr M. Thomas objected to only a few items, which it was agreed we could receive de bene esse for the purpose of the application. Needless to say, we have given due consideration to that evidence in arriving at our decision.
Extension of time to appeal - factors
11. It is not in dispute that the legal position in point is correctly stated in para. 59/4/4 of the Supreme Court Practice 1997, Vol 1 p. 972, 973. It is entirely within the discretion of this Court to grant or refuse an extension of time. The factors normally taken into account are:
(1) the length of the delay;
(2) the reasons for the delay;
(3) the chances of the appeal succeeding if time for appealing is extended; and
(4) the degree of prejudice to the potential respondent if the application is granted; (see C.M. Stillevoldt BV v. El Carriers Inc [1983] 1 WLR 297; Mak Hau-shing v. Oriental Press Group [1996] 3 HKC 12).
12. We turn then to address those factors.
The delay and explanations therefor
13. There was some controversy as to how this topic should be dealt with.
14. Lord Thomas based his submissions on a wealth of material extracted from the various affidavits and statements which had been made by Mr Ford. He drew from this material eight reasons why indulgence should be granted to his clients.
15. Mr M. Thomas' approach was rather different. He placed reliance upon the requirement in the rules that an affidavit should be filed in support of the application. Such an affidavit should contain a coherent and cogent explanation for the delay which had occurred.
16. This was entirely different to the selective approach adopted by Lord Thomas. To illustrate this difference, Mr M. Thomas referred to the fact that notwithstanding all of the difficulties and excuses which had been referred to by Mr Ford, he had in August and September 1995 been able to overcome his various problems and prepare the necessary documentation and take the necessary steps to enable the cross-appeal to be commenced. Manifestly this was a matter which required some sort of explanation, not least of why this had not been possible earlier.
17. We have no doubt that Mr M. Thomas is correct in his contention that the approach adopted by Lord Thomas was seriously flawed in not providing an acceptable explanation for the delay. It is however necessary to consider shortly the various reasons which were advanced by Mr Ford in an attempt to excuse the very considerable delay of about 17 months which occurred in this matter, i.e. some 15½ months in excess of the 6 weeks permitted.
18. The first question which has to be addressed is the date from which the delay begins to run. Here, there can be no doubt that time began to run from the date of the order of Sears J when he entered judgment on liability. This was in March 1994. We reject Lord Thomas's submission that time should run from the date of the assessment of damages, which we are satisfied cannot be right (see Supreme Court Practice 1997 Vol. 1, p. 971, para. 59/4/2).
19. The first matter relied upon by Lord Thomas to justify the delay was the somewhat parlous financial situation of Mr Ford. He referred to the fact that when Mr Ford left Hong Kong his income as a barrister dried up. It was also apparent that other than a minority interest in a house in the UK, Mr Ford did not have any substantial assets. He complained that his attempts to sell the house had been frustrated as a consequence of the court orders which had been obtained by CLP. However, it is clear from the orders which had been obtained that there was no restriction on the sale of the house, but only upon the disposal of the proceeds of sale.
20. The other aspect of Mr Ford's financial situation which was pursued at length was his bankruptcy. However, Mr Ford was adjudicated bankrupt upon his own petition. Moreover in that petition Mr Ford had represented that CLP were claiming HK$25 million from him. He failed to mention or take account of the fact that the amount specified in the subsequent Mareva order had been reduced from HK$25 million to HK$5 million.
21. He also made no provision for the receipt of any fees in respect of work he had undertaken as a barrister in Hong Kong, for which payment had not yet been received.
22. Another matter which arose out of the bankruptcy proceedings was that after he had been adjudicated bankrupt, he was advised by the Official Receiver that he should not continue with the present proceedings. If he did so, he might be committing a bankruptcy offence. Here, too, it needs to be borne in mind that it was Mr Ford himself who filed the petition in bankruptcy shortly before the case was due to be heard and any impediment arising as a consequence of the bankruptcy was to that extent self inflicted.
23. Lord Thomas also called in aid the fact that Mr Ford had been unable to obtain legal aid so as to enable him to be represented at the trial. He submitted that one of the reasons for this was that although Mr Ford had appealed against the refusal, CLP's legal advisers had presented false information to the Director of Legal Aid which may have been one of the reasons for the appeal being dismissed. There was however no evidence that this was likely to have been the case.
24. The material which had been supplied by CLP's lawyers had been notification that Mr Ford had been practising as a barrister in England. This was not correct as the barrister to whom the lawyers had referred was in fact another Mr Michael Ford. It seems most likely that this was all an unfortunate case of mistaken identity, albeit one which could have been avoided had CLP's lawyers been more careful.
25. However, what has to be borne in mind is that not every litigant appearing in these courts has the advantage of legal representation. It would have been quite possible for Mr Ford to conduct this case on his own behalf. This is particularly so as he was a qualified and experienced barrister. In any case, there is no indication that he has in the end suffered any injustice by not having been represented at the trial.
26. Another matter which was referred to by Lord Thomas was that as a consequence of his residence outside the jurisdiction he might have been required to make a payment into court to secure CLP's costs as a condition to continuing with the litigation. The first point which has to be made is that this was by no means inevitable. It may have been the case that CLP would not have made such an application as they may have wished to have the matter disposed of without further delay rather than having it continue to remain outstanding. This is clearly a matter of speculation.
27. What is however clear is that it was Mr Ford's own decision to leave Hong Kong during the currency of the litigation. Had he not done so these difficulties would not have arisen. In this connection the evidence given to the effect that he had received threats was unsatisfactory and inconclusive. It has not been revealed who made these threats or what exactly these threats were. Certainly there is no evidence whatever before us that any threats emanated from CLP or anyone acting at their behest.
28. Some of the other reasons advanced by Lord Thomas to justify the delay were unconvincing. He referred to the fact that Mr Ford did not know how much the damages would be until they were assessed. That would not appear to be any justification for failure to comply with the requirements laid down in the rules for lodging an appeal within the prescribed time.
29. It is perhaps relevant to add that it may have been CLP's appeal against Sears J's determination that exemplary damages were not recoverable that prompted Mr Ford to resuscitate his participation in the litigation.
30. Lord Thomas also suggested that Mr Ford's engagement in petitioning the Governor and Members of the Legislative Council amounted to some justification for the delay. Clearly it does not; nor do other activities to which Mr Ford has pointed in this respect in his affidavit and documents, which are equally irrelevant.
31. What this all boils down to is that there has been inordinate delay which has not been justified. The reasons advanced do not seem to us to be an acceptable explanation for the delay. Plainly, therefore, the delay would of itself warrant the dismissal of Mr Ford's application for leave to appeal out of time (absent potent countervailing factors relevant to the exercise of this Court's discretion, a matter to which we shall come).
The pleadings
32. As to the other factors and matters that remain to be considered, a mass of amorphous material was placed before us. To enable all of that to be considered in any intelligent way, it is essential to have close regard to the pleadings and more particularly the pleadings which were before Sears J when he heard the case.
33. CLP's case is that during the period Mr Ford was instructed to represent them at the inquests, he was provided with instructions, information, documents, reports etc, which were the property of CLP, in connection with the retainer in circumstances giving rise to a duty of confidentiality. The duty was defined in para. 8 of the Statement of Claim in this way:
"8. The Defendant owed a duty to the Plaintiffs :
(1) not to part with (except by delivery up to the Plaintiffs or their solicitors) any of the Property or any copies of or extracts from or summaries of any of the Property or the information contained therein;
(2) not to publish or to disclose to anyone or make any use of the Property or any copies of or extracts from or summaries of any of the Property or the information contained therein;
(3) to return and deliver up to the Plaintiffs the Property or any copies of or extracts from or summarises of any of the Property forthwith upon the withdrawal of the Defendants' instructions or upon demand;
(4) of confidentiality in relation to the Property and the information contained therein, which duty continued after the withdrawal of the Defendant's instructions;
(5) of a constructive trustee in respect of the Property or any copies of or extracts from or summaries of any of the Property or the information contained therein."
It was averred in paragraphs 9 and 10 that he was in breach of this duty:
"9. In breach of the duties set out in paragraph 8 above the Defendant has failed and/or refused to return and deliver up to the Plaintiffs the Property and all copies of or extracts from or summaries of the Property.
10. In further breach of the aforesaid duties the defendant has :
(1) parted with or disclosed to Messrs Speiser Krause Madole & Nolan, Attorneys-at-Law ("SKMN") the Property or copies of or extracts from or summaries of the Property and/or the information contained therein for use in the proceedings described below to which end SKMN have made use of the information contained therein;
(2) caused SKMN to commence proceedings on his behalf against Exxon Corporation and others in the State of Texas in the United States of America ("the Texas proceedings'), some of the documents filed in which proceedings are copies of or extracts from or summaries of the Property.
By reason of the matters aforesaid the Plaintiffs have suffered loss and damage."
34. In paragraph 5 of his defence, Mr Ford conceded that he "received the property referred to in the Statement of Claim from his instructing solicitors, Holman Fenwick & Willan ("HFW"), in his capacity as counsel for CLP and in consequence owed a duty of confidentiality ...".
35. Mr Ford does not dispute the claim that he did owe a duty of confidentiality.
36. However, he avers that this duty was a qualified duty. He deals with the way in which the duty is qualified in paragraphs 7 and 8 of his defence.
"7. Save that it is admitted that the Defendant owes a duty of confidentiality to the Plaintiffs as referred to in paragraph 8(4) of the Statement of Claim, qualified as mentioned in paragraph 8(3) and 8(4) hereof, paragraph 8 of the Statement of Claim is denied.
8. With regard to paragraph 9 of the Statement of Claim, as averred in paragraph 6 hereof the Defendant has returned the Property to his Instructing Solicitors, HFW. The Defendant admits that he made copies of certain documents comprising part of the Property at his own expense ("the Copies"). The Copies:-
(1) are the property of the Defendant;
(2) further and/or alternatively the Plaintiffs are not entitled to possession of the Copies;
(3) further and/or alternatively, by reason of the conduct of the Plaintiffs and HFV the Defendant is entitled to retain the Copies and to use the same in protection of his professional interests, reputation and integrity.
PARTICULARS OF PLAINTIFFS' CONDUCT
(a) The Plaintiffs' conduct, by acts and omissions, of themselves, the legal advisers (other than the Defendant) and their solicitors ('the Plaintiffs and their advisers') has been iniquitous, illegal, unlawful and fraudulent, since the fatal explosion on 28th August 1992 at the Plaintiffs' premises ('the fatal explosion').
(b) In particular the Plaintiffs and their advisers attempted to pervert the course of justice or further and alternatively conspired amongst themselves to pervert the course of justice or further and alternatively wilfully deceived or misled the Coroner in the execution of his powers and duties pursuant to and under the Coroners Ordinance, by suppressing, withholding or secreting and concealing the existence of the full report of the Plaintiffs' Board of Inquiry into the fatal explosion and all associated documents, reports and appendices forming part of that report or otherwise germane to or in relation to it ('the concealed Documents'), despite a specific direction in writing by the Coroner to the Plaintiffs to disclose, produce and make available the same to him prior to the commencement of the Inquests ('the Coroner's Direction').
(c) Further in pursuance of the said attempt or conspiracy referred to in paragraph 8(3)(b) above, the Plaintiffs in response to the Coroner's Direction submitted a report purporting to be the only report of the Plaintiffs' Board of Inquiry, the conclusions of which were generally uncritical of the acts and omissions of the Plaintiffs, their servants or agents in respect of the fatal explosion. The Concealed Documents were highly critical of the acts and omissions of the Plaintiffs, their servants or agents in respect of the fatal explosion.
(d) At no time thereafter, despite the repeated and unequivocal advice of the Defendant, both oral and written, did the Plaintiffs and their advisers ever reveal the existence of, disclose, produce or make available the Concealed Documents to the Coroner.
(e) The Coroner's Inquest concluded on 27th May 1993 with the Coroner's Jury delivering a verdict that exonerated the Plaintiffs from responsibility for the fatal explosion.
(f) On 6th August 1993 the Plaintiffs admitted publicly, for the first time, that the Concealed Documents existed prior to the commencement of the Inquests.
(g) In the premises, the proceedings and verdict of the Inquests were vitiated by the fraud, illegality and misconduct of the Plaintiffs and their advisers.
(4) Further and/or alternatively, by reason of the conduct of the Plaintiffs and their advisers referred to in paragraph 8(3) above, the Defendant was entitled to retain the Copies against a reasonable apprehension of a duty of public disclosure of the conduct of the Plaintiffs and their advisers.
(5) Further and/or alternatively the Defendant was and is entitled to a lien on the papers and/or to retain the Copies against payment of his fees for his services to the Plaintiffs during the course of his retainer, part of which remain unpaid."
37. Mr M. Thomas submitted that the duty of confidentiality on the part of a barrister and a solicitor, misleadingly referred to as legal professional privilege, is an absolute duty. His main authority for this proposition was the House of Lords judgment in R. v. Derby Magistrates' Court, Ex., p. B. [1996] 1 AC 487.
38. The findings of the court are conveniently and accurately encapsulated in the headnote to the report:
"(2) That, in any event, a witness summons could not be issued under section 97 of the Magistrates' Courts Act 1980 to compel the production of documents subject to legal professional privilege which had not been waived, since the principle that a client should be free to consult his legal advisers without fear of his communications being revealed was a fundamental condition on which the administration of justice as a whole rested; that notwithstanding the public interest in securing that all relevant evidence was made available to the defence, legal professional privilege was to be upheld in all cases as the predominant public interest, even (Lord Nicholls of Birkenhead dubitante) where the witness no longer had any recognisable interest in preserving the confidentiality; and that, accordingly, the applicant had been entitled to claim legal professional privilege ..."
39. Mr M. Thomas placed particular reliance upon Lord Taylor's summary of the position at p.507:
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
40. Mr M. Thomas also referred to the Australian High Court case of Carter v. Northmore Hale Davy & Leake 183 CLR 121, which was heard at almost exactly the same time as the Derby Magistrates case where the Court reached a similar conclusion in a claim for privilege.
41. Mr M. Thomas contended that on the basis of these authorities Mr Ford's defence did not amount to a defence and could have been struck out in limine.
42. Lord Thomas' response was that the privilege was qualified where the documents in question had been made or brought into existence for some fraudulent purpose. For this proposition he placed reliance upon the following a passage from the judgment of Deane, J. at p. 134 of Carter v Northmore Hale Davy & Leake cited above:
"The point that legal professional privilege is itself the outcome of a balancing process and is conclusive when it attaches has also been made in a number of recent judgments in this Court. Thus, in Waterford v The Commonwealth, Mason and Wilson JJ said:
'If the conditions giving rise to legal professional privilege are satisfied, and the privilege is not waived, then the document is not disclosed ... Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception (cf R. v. Bell; Ex parte Lees), the public interest in "the perfect administration of justice" (per Earl of Halsbury LC in Bullivant v. Attorney-General (Vict)) is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required.'
To the same effect is the following extract from the judgement of Dawson J in Attorney-General (NT) v. Kearney:
'More importantly, once it [i.e. legal professional privilege] is claimed it is conclusive, provided that the relevant communication does not fall within the recognised exceptions. It is not for the court to enter upon a balancing exercise as in the case of Crown privilege in order to determine where the public interest lies in the individual case. It is established that as a matter of principle the public interest lies in preserving the confidentiality of those communications falling within the ambit of the doctrine.'
As Dawson J's reference in the above passage to 'the recognised exceptions' suggests, legal professional privilege is subject to a number of established and settled 'exceptions'. In particular, the privilege does not extend to communications or documents made or brought into existence for the purpose of, or as part of the process of, crime, fraud, abuse of statutory powers or, in some circumstances, defeating or frustrating the administration of justice by the courts. For present purposes, a critical characteristic of those 'exceptions' is that they are exclusions from the reach of legal professional privilege rather than exceptions to the scope of the protection which it affords. They are directed to circumstances in which the privilege does not attach with the result that the particular communication or document is not protected by legal professional privilege at all. They are not directed to circumstances in which, notwithstanding that legal professional privilege does attach, the courts will override the privilege and order that the privileged document be produced for inspection or that the privileged communication be disclosed. Nor, in accordance with what has been said above, are they directed to identifying circumstances in which the courts will embark upon a balancing circumstances in which the courts will embark upon a balancing process to determine whether the considerations favouring disclosure outweigh the considerations favouring confidentiality. In that regard, the established position in this country is that, in the absence of waiver or loss of confidentiality and subject to one apparent (and, in my view, anomalous) qualification in relation to wardship or custody proceedings, the protection which legal professional privilege accords to the communications or documents to which it actually attaches is, for so long as that attachment persists, unqualified. And there is a powerful reason why that is so. I turn to identify it."
43. Lord Thomas also submitted that the law was accurately summarised in para. 18.05 of the recent work entitled "Confidentiality" by R.G. Toulson and C.M. Phipps:
"Crime or fraud
Privilege does not attach to communications between a client and legal adviser, or documents brought into existence, as a step in a criminal or fraudulent enterprise, or for the purpose of stifling or covering up a crime or fraud, whether the legal adviser is himself a party to the plot or innocent R. v. Cox and Railton (1884) 14 QBD 153; Bullivant v Attorney-General for Victoria [1901] AC 196 at 201, per Lord Halsbury; 206, per Lord Lindley; O'Rourke v. Darbishire [1920] AC 581; Gamlen Chemical Co. (UK) Ltd v. Rochem (unreported) December 7 1979, CA (Civil Division) Transcript No. 777 of 1979; Finers v. Miro [1991] 1 WLR 35, for, as Stephen, J. said in R. v. Cox and Railtorn (1884), a communication in furtherance of a criminal purpose does not 'come into the ordinary scope of professional employment' and 'the protection of such communications cannot possibly be otherwise than injurious to the interests of justice.'
In Bullivant v Attorney-General for Victoria [1901] AC 196, Lord Halsbury LC said:
'... for the perfect administration of justice and for the protection of confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production. But to that, of course, this limitation has been put, that no court can be called upon to protect communications which are in themselves part of a criminal or unlawful proceeding.'
A serious problem for an honest solicitor is what to do when the facts are not clear. Drawing a line between proper defence of a client and improper concealment of wrongdoing may be difficult. So is the position of a solicitor who begins to suspect that a transaction in which he has been retained involves fraud. Terminating his retainer may be a solution in some cases, but not in others, particularly where the solicitor is in possession of funds which may represent the proceeds of fraud. This problem arose in Finers v. Miro [1991] 1 WLR 35 ..."
44. It can be seen from the Derby Magistrates case that although Lord Taylor's opinion adopted by the majority (including Lord Nicholls in this respect) was that "no exception should be allowed to the absolute nature of legal professional privilege, once established" (at pp. 508H-509A) he did not say that communications or documents made in furtherance of a criminal purpose (i.e. falling within the exception recognised in R. v. Cox and Railton (1884) 14 QBD 153) were subject to legal professional privilege or professional confidence, noting that the argument (which was abandoned) was not that the privilege had to be balanced against some other public interest, but rather that the communications were never privileged at all.
45. Likewise the High Court of Australia in the Carter v. Northmore case (at e.g. p. 134) appears to have regarded communications and documents in furtherance of crime as one of a number of established and settled "exceptions" excluded from the reach of legal professional privilege, rather than exceptions to the scope of the protection which it affords.
46. In the result, it would seem that if communications and documents are made in furtherance of a criminal purpose their disclosure is not wholly restrained by legal professional privilege or confidentiality. As will be seen, we do not find it necessary to take the matter beyond that.
47. It remains to touch upon the Hong Kong and English Bar codes of conduct, upon a former version of the latter of which Lord Thomas relied. That former version provides in effect that counsel may disclose matters otherwise subject to legal professional privilege to defend himself against his clients' claims for misconduct, negligence and the like. The Hong Kong code, however, does not contain such provision; nor does the current English code.
48. We only find it necessary to observe that neither code has the force of law nor can either change the established position in law, lacking, as they do, the necessary statutory sanction. That legal position, which accords more with the former version of the English code rather than the Hong Kong code, is set out in Lillycrap v Nalder & Son (CA) [1993] WLR 94; 98, where Dillon LJ said:
"Thus, the client has the right to insist on his professional legal privilege and it is for him to choose whether or not to waive it. But it is accepted that the waiver may be implied, and that there is an implied waiver where the client brings proceedings for professional negligence against the solicitor."
The Court of Appeal there also endorsed the following dictum of May, J. below:
"A client who sues his solicitor invites the court to adjudicate the dispute and thereby, in my judgment, waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law including the law of evidence."
49. It is not suggested on CLP's behalf that Lillicrap is not good law or should not be followed in Hong Kong. Mr M. Thomas' position is simply that it is not engaged by the facts here - a matter to which it is convenient to now turn.
Whether legal professional privilege impliedly waived
50. Lord Thomas' submission here is that Mr Ford disclosed to his attorneys in the United States only such material as was necessary to defend himself - against what precisely, we confess is not wholly clear to us. It will have been seen from our introductory chronology that it was only after the partner and parent companies of CLP and CAPCO received letters before action from Mr Ford's solicitors that they commenced the Hong Kong action to restrain Mr Ford from breaching the confidentiality of documents, confidentiality which he subsequently admitted unequivocally in his pleaded defence. Prior to that CLP had gone out of their way not to damage Mr Ford's reputation or professional position. The partner concerned, of HFW, CLP's solicitors, Mr Hardaker, in fact told the coroner that the withdrawal of instructions was "no reflection on Mr Ford's ability or, in the way he has conducted the case in Court".
51. Mr Ford's own explanations for retaining the printed documents and the initiating proceedings in the US are illuminating. Stripped of their tendentious content, they amount to little more than suspicion of conspiracy to withhold the Blue Report and other unspecified documents from disclosure to the coroner, to fear that he might be blamed and become involved in a serious criminal matter, and be subjected to public humiliation; also that CLP's lawyers were falsely implicating and accusing him and simultaneously prohibiting him from defending his reputation when his career was systematically being destroyed. He added that he had never before been in the position where he believed that a number of matters positively indicated criminal misconduct if not a conspiracy to pervert the course of justice. He says that it further seemed quite possible to him that the allegations of one of the CLP officers, Mr Rhys, were after all correct and that there had been a perversion of the course of justice but that Mr Rhys had falsely implicated him (Mr Ford) for his own purposes. Mr Ford also says that he formed the conclusion that there was very likely to be some criminal investigation into the cover-up rumours or the Rhys' allegations. His explanation in para. 48 et seq of his draft affidavit was this:
"If I then parted with the papers, I would no longer have the very proof I required to establish my own innocence. I had no other means to do so. My instructing Solicitor had at some point ceased supporting my views on ethical matters. If in any criminal investigation my word was to be weighed against the others instructing me and those at CLP, I would be in obvious difficulty. The papers were and still are my only protection.
It is my belief that a criminal investigation is the means to determine if there has been a conspiracy to conceal evidence and who has been responsible.
After my dismissal I considered all these and other factors. I had been defamed and falsely accused of a fraud on the Court. I consulted the Bar Code of Conduct which gives a Barrister the right to defend his professional standing. I considered my entire professional life to be gravely at risk, especially as people who knew me were amazed at my dismissal from the Inquest and I could not explain the reasons.
I concluded that I did not have the financial means to mount a civil action against Exxon Corporation and China Light Company in Hong Kong. It was also clear to me that Exxon, United States, through Mr Brown their Attorney, had largely been responsible for what had occurred. I therefore sought the advice of Mr Stuart Speiser, an American attorney. He advised me I had a cause of action in the United States and jurisdiction could be founded there."
52. On 16 July Mr Ford telephoned Mr Speiser and was told that a settlement out of court was unlikely and that if he wished to proceed he should fax a letter of instructions. Mr Ford did so.
53. Disregarding the fact that the foregoing consists all of suspicions, speculation, unfounded fears and the like, it simply does not begin to found the requisite factual basis of the exception to legal professional privilege contended for. Far from the confidential material being utilised as a defence to any legal action by CLP or to defend his professional reputation, it was used by Mr Ford in attacking CLP by threatening and commencing proceedings. CLP's action was, in response, to defend themselves.
54. This ground also has no real prospect of success, to say the least.
Whether the communications were in furtherance of a criminal purpose
55. We return them to the other legal exception to legal professional privilege relied upon by Lord Thomas. This was in substance that CLP's instructions and documents in point were given to Mr Ford in furtherance of a criminal purpose i.e. a conspiracy presumably to withhold the Blue Report and other material from the coroner.
56. As already seen, there is authority that such communications and documents are an exception or beyond the reach of legal professional privilege. Without deciding that as the legal position, we assume that it is, for the purpose of determining whether the facts would sustain their application. The necessary factual basis would have to be that the communications were made and documents were created and communicated to Mr Ford in furtherance of the conspiracy alleged.
57. One of the difficulties of addressing Mr Ford's allegation of a conspiracy is that it has never been properly pleaded and particularised. The submissions made on Mr Ford's behalf have simply been pursued upon the allegation of a cover-up. To that we now turn.
The alleged "cover-up"
58. Mr Ford's case in this respect is that CLP conspired to mislead the coroner by withholding or concealing documents and information. This essentially relates to his allegation that there was an attempt to conceal an internal CLP Advisory Report (the Blue Report) which contained a reference to an adverse Exxon Report. This reference, he claims, was deleted from a revised Blue Report. To understand this, it is necessary to go back into the history of those matters. And since it is this allegation that forms the core of Mr Ford's case, we address it in some detail.
59. The explosion on 28 August 1992 at the power plant led to the setting up by CLP of a Board of Inquiry and an Advisory Board under the standing instructions of the company. The Board of Inquiry was to investigate the circumstances and causes of the explosion to enable the company's advisers to determine the potential liability of the company, and the Advisory Board was to make recommendations to prevent a recurrence of such an accident. Under the relevant CLP Standing Instructions different criteria applied to the inquiries conducted by each Board. The persons constituting the two Boards were the same but they acted in different capacities.
60. It is not difficult to understand why this should be the case. When inquiries are made of those who may have been responsible for an occurrence it is essential that everyone concerned in the investigation should feel free to express their opinions without restraint. This particularly applies where professional advisers are giving opinions on the subject. The conclusions which are reached by a board of inquiry will not include some of the confidential opinions which have been expressed. It is this that accounts for the differences between the contents of the Red Report and the various versions of the Blue Report.
61. The Government Fire Services Department on 10 September 1992 conducted their own investigation with the assistance of a Government team. The Board of Inquiry and the Advisory Board completed their reports in October 1992 (the Red Report and the Blue Report). Copies of the Blue Report were serially numbered. The Blue Report had the same title as the Red Report: "Report of the Board of Inquiry into an Explosion at Castle Peak 'B' Power Station on 28 August 1992". As mentioned, there was a reference to the Exxon Report in its contents. In addition, the Board of Inquiry was referred to as the Board which considered the circumstances and made the recommendations. On its front sheet were the words "Advisory Report". CLP claimed legal privilege in respect of these reports.
62. On 7 October 1992, CLP received a report by Exxon Research and Engineering Company (the Exxon Report). The latter, as will be seen, was claimed by CLP to have been completed before the Blue Report.
63. On 29 October 1992, CLP waived legal privilege in respect of the Red Report and released copies to the Government team but not to the police. On 2 December 1992, the coroner through the police informed CLP that the police were acting on behalf of the coroner and that "if a Board of Inquiry Report is not forthcoming" he would "order production of the Report pursuant to the Coroners Ordinance." On 10 December 1992, CLP provided a copy of the Red Report to the coroner.
64. CLP was summonsed for offences contravening the Factory and Industrial Undertakings Ordinance. On about 19 February 1993, Mr Hardaker spoke to Mr Ford on the phone and instructed him to represent CLP. Mr Ford accepted the instructions.
65. On 26 February 1993, Mr Hardaker met Mr Ford personally and handed over to him a bundle of documents which included a copy of the Red Report. Mr Ford commented on the inadequacy of information. On 3 March 1993 or about the first week of March 1993 Mr Ford was given a copy of the Blue Report (No. 6) and other documents relevant to the inquest. Mr Ford noticed in the Report the reference to the Exxon Report, and asked Mr Hardaker about it. As a result, Mr Hardaker provided him with a few pages which Mr Hardaker referred to as a synopsis of the Exxon Report.
66. Sometime before 8 April 1993, Mr Parry, CLP's legal adviser, says he discovered that the Blue Report was wrongly titled, and that the following remark made in the report with reference to the Exxon Report: "Many detailed recommendations will be made by Exxon in a separate report. They will need to be reviewed when the final version is available, ...", was incorrect since the final version of the Exxon Report was already in existence when the Blue Report was completed. Amendments were necessary and were therefore made to the Blue Report. These included properly re-titling it and amending the terms of reference to put them in the proper perspective of an advisory report. All references to Board of Inquiry were changed to Advisory Board. The words "Advisory Report" on the front sheet and the substance of the report remained unchanged.
67. On 13 April 1993, Mr Ford, having considered the Red Report and the Blue Report and other documents, advised CLP that although there was no obligation to disclose to the coroner the Blue Report, disclosure of internal documents relevant to the inquest was necessary subject to the claim of legal privilege but much of the evidence in the report could be given by way of oral evidence. It should be noted that at an inquest, evidence is normally taken orally. Moreover, coroner's proceedings are inquisitorial in nature. There is no prescribed requirement for discovery as in ordinary civil proceedings. It was for the coroner to order production of documents he thought might be of assistance to him. Mr Hardaker responded to Mr Ford's advice without agreeing or disagreeing to it, but he had this comment in relation to the Blue Report: "... we are damned if it is disclosed and damned if it is not." At that stage, CLP appeared to be in a dilemma with regard to the Blue Report. Be that as it may, neither that nor their indecision as to what to do is evidence of any intention to conceal the Blue Report.
68. On or about 8 April 1993, two copies of the revised Blue Report (No. 11 and No. 14) were given to Mr Hardaker. Mr Hardaker says that on 14 April 1993, at a meeting at the head office of CLP, he gave a copy of the revised Blue Report (No. 11) to Mr Ford. He did not ask Mr Ford to return his copy of the original Blue Report (No. 6).
69. The inquest opened on 19 April 1993. There was nothing to show that CLP refused to act in accordance with Mr Ford's advice. On 20 April 1993 and 4 May 1993, Mr Ford informed the coroner in chambers that CLP was in possession of documents not disclosed but he indicated to the coroner that if disclosure was required, legal privilege would be claimed.
70. The inquest was adjourned from 5 May 1993 to 17 May 1993. During this period, Mr Ford wrote to HFW that he had assumed responsibility for the matter of disclosure. He said he was clear that CLP had given him a mandate to disclose the Blue Report if he deemed it necessary but he wanted express instructions in that regard for his protection. CLP's instructions were that Mr Ford should consult CLP's legal team before disclosing any document and Mr Ford accepted this as a satisfactory arrangement.
71. If Mr Hardaker's evidence is right, prior to the opening of the inquest, Mr Ford had all the reports with him and he was aware of the changes made to the Blue Report. In his advice to CLP on 13 March 1993 Mr Ford accepted the instructions from HFW that the Blue Report was "not prepared by the Board of Inquiry sitting as such" and it had been misdescribed. He concluded that the coroner's demand was for sight of the Board of Inquiry Report and "nothing else". Later in the advice, Mr Ford said: "The Advisory Report is anyway in a different category containing essentially opinion evidence not of an expert nature". In other words, he accepted that the Blue Report was not part of the report of the Board of Inquiry and implied that the coroner has never asked for it. He was also aware of the incorrect label that had been applied to the report. He raised no question about these amendments. They were purely editorial in nature and there could not have been anything sinister about them.
72. During the inquest on Friday, 30 April 1993, a CLP engineer, Mr Chan, gave evidence on the issue of whether gas had been vented from the high pressure receiver. This was regarded as vital since the cause of the explosion could be dependent on whether gas had been so vented. His evidence was inconsistent with an earlier statement given by him as well as what was stated in the Blue Report. Mr Ford told the CLP lawyers that he might need to disclose the Blue Report in order not to mislead the coroner. At the end of that day, Mr Ford claims that he left the court forgetting to take his copy of the Blue Report (No. 6) with him.
73. The inquest resumed on Monday 3 May 1993 and when Mr Ford went into the courtroom, he did not find his copy of the Blue Report (No. 6). He reported the loss to the coroner. Mr Hardaker at that juncture gave a copy of the revised Blue Report (No. 14) to Mr Ford for him to carry on with the inquest. Mr Ford's evidence is that he had had only copy No. 6 and that was missing. He was never given any copy of the revised Blue Report until he was given one to replace his missing No. 6. This contradicts Mr Hardaker's version. For Mr Ford it is contended that his copy of the Blue Report (No. 6) was stolen or deliberately removed on CLP's behalf to prevent him from disclosing it. But one would have thought, if such were the case, that Mr Ford would not have been given any copy of the revised Blue Report to replace the missing copy No. 6, so that there would be no Blue Report, original or otherwise, that could be disclosed. But that is not what the evidence shows.
74. Mr Johnny Fung, a trainee solicitor in HFW, attended the inquest as part of his training. He had been given the various reports to read. The last day he attended the inquest was 27 April 1993. Some three and a half months later, on 17 August 1997 when he finished his training and was due to leave, he found in his room a copy of the Blue Report with a white covering sheet. This was later recognised as Mr Ford's copy No. 6. Mr Fung did not know how it came to be among his documents but he believed he had taken it away by mistake on his last attendance at the inquest. He returned all these documents and No. 6 to Mr Hardaker's secretary, Ms Pye. Ms Pye took possession of them but did not consider them to be anything of significance. She just let them remain there without telling Mr Hardaker until 20 August 1993 when Mr Hardaker saw them on the top of her filing cabinet. Mr Hardaker's evidence is that when Mr Ford reported to the coroner that his copy No. 6 was missing, it did not occur to him (Mr Hardaker) that anyone from his office could have picked it up inadvertently since it was Mr Ford's practice to leave his documents in the courtroom overnight and the document was lost between court hearings. It was not until 19 August 1993 that he saw it among other documents on the top of a filing cabinet in his secretary's office. Mr Fung told him that he could not remember how he came to have picked up that document. Mr Parry and Mr Side (a member of a firm of solicitors acting for CLP) also deposed to the circumstances in which copy No. 6 was found; Mr Parry informed the police that it had been found. Their evidence on how it was found is based on what they gathered from the other three witnesses, Ms Pye, Mr Hardaker and Mr Fung. There are inconsistencies in and between their evidence but these are not significant.
75. In any case, among the final documents returned by Mr Ford to his instructing solicitors after his service was terminated, there were two copies of the revised Blue Report, No. 11 and No. 14. Mr Ford's version of events that he was only given one copy of the revised Blue Report therefore cannot be right. Despite his denials, he must have been given one copy prior to the day when he found his copy No. 6 missing. Mr Hardaker's version that one copy was given to Mr Ford before the inquest and one was given when Mr Ford lost his copy No. 6 is probably the case. It does not matter which copy, No. 11 or No. 14, was first given to Mr Ford.
76. Thus, when the inquest opened, Mr Ford had both versions of the Blue Report with him. One would have thought that if the amendments were made to mislead or to conceal the original version and thereby the existence of the Exxon Report, Mr Hardaker would have asked Mr Ford to exchange his copy No. 6 for the revised copy. But that was not done.
77. For Mr Ford it was submitted that the removal of copy No. 6 was part of the conspiracy to conceal documents and to mislead the coroner. There is simply no real evidence in support of that proposition. The inconsistencies in the evidence of the CLP legal team, Mr Hardaker, Mr Parry, Mr Side and Mr Fung together with Ms Pye do not show in any way that copy No. 6 was deliberately removed, much less stolen. Rather, the reasonable inference to be drawn is that it was mistakenly taken away by the trainee solicitor. If the removal was for the purpose claimed by Mr Ford, one would have thought that CLP would have destroyed copy No. 6 as soon as it was removed and moreover would not have been so unwise as to admit it was in their solicitors' possession.
78. The evidence indicates that Mr Ford was at liberty to deal with the reports and other documents according to the advice he himself had given and that he had a mandate from CLP in that respect. The evidence is far from showing that CLP had put pressure on him to conceal the existence of the reports. The revised Blue Report and the Exxon Report were placed before the coroner when the inquest resumed after the adjournment, and were found by the coroner to be innocuous. All this, far from supporting the case that there were attempts by CLP to prevent the coroner from seeing these reports because they would cause damage to CLP, points to the contrary.
79. Not only is there no real evidence of the cover-up alleged, but it would be absurd, given the circumstances. In that respect, it accords with the fanciful nature of the statements made in a motion recently lodged on his behalf in the US courts, a copy of which was produced to us. The first was that the Hong Kong courts are controlled by the People's Republic of China. The second is that if Mr Ford were to return to Hong Kong with the documents he possesses, he would immediately be arrested.
80. Plainly, the chances of successfully showing on these facts that there was a conspiracy to conceal documents and to mislead the coroner are remote. The judgment of Sears, J. was a regular judgment. To put the matter in the language of the relevant context i.e. that of setting aside a regular judgement, which is what is sought here, there is plainly no potentially credible evidence that demonstrates a real likelihood that Mr Ford will succeed on those facts and no real, likely or reasonable prospect of success (see the Supreme Court Practice 1997, Vol. 1, p. 145, para. 13/9/14; Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co Inc, The Saudi Eagle [1986] 2 Lloyd's Rep 221; 223).
Alleged unfairness of the trial before Sears, J.
81. A considerable amount of time was spent on this. Lord Thomas complained that in the circumstances which prevailed Mr Ford did not receive a fair trial. He was particularly critical of the judge's decision to refuse to grant Mr Ford an adjournment of the hearing which was due to commence on 7 March 1994.
82. Mr Ford was in somewhat straightened financial circumstances and had been unable to continue to fund the solicitors who had been representing him. As a result of this they had applied to the court to come off the record. Mr Ford had then applied for legal aid. This application was refused shortly before the trial was due to commence. Mr Ford then lodged an appeal with the Registrar of the Supreme Court against this refusal. The original application for legal aid attracted a statutory 42-day stay of the proceedings pending the determination of the application. This stay had to be lifted by the judge if the case was to proceed. It was the judge's ruling to lift this stay which attracted much of the criticism that was made by Lord Thomas.
83. In fact what had occurred was that at the commencement of the proceedings the judge had inquired into the question of the stay and more particularly when the legal aid appeal was due to be heard. He was informed that the appeal was due to be heard 2 days later on 9 March. He had attempted to initiate administrative action so that he could himself hear the appeal but his efforts were unavailing. The way that he dealt with the matter was to conditionally lift the stay and he invited Mr Griffiths SC to proceed with the case on behalf of CLP. It was however understood that the judge would not conclude the hearing of the case until after the legal aid application had been disposed of. If the appeal was successful the case would be adjourned so as to enable Mr Ford to have legal representation and a further date would be fixed. If the appeal was dismissed the stay would be unconditionally lifted and the case would be concluded without Mr Ford's presence. As it happened the appeal was dismissed and the judge proceeded to judgment.
84. What is important is to bear in mind the background to all of this. Some time before the case had been due to commence, there had been an exchange of correspondence between Mr Ford and Sears J's clerk. The judge had made it abundantly clear that he was not disposed to grant an adjournment of the case. He maintained this position. Mr Ford could have been under no illusion that any application which was made for an adjournment was likely to meet with success.
85. No doubt one of the factors which would have weighed heavily in the mind of the judge was the nature of the pleaded case which was set down for hearing before him. CLP were basing their claims against Mr Ford on breach of confidentiality. Mr Ford accepted in his defence that he did owe such a duty. However, he had lodged a series of papers and documents in which he claimed to have been released from his duty of confidentiality. What was very clear was that the burden of establishing his right to use the papers in the way he did, lay upon him. There was every reason for the judge to believe that Mr Ford did not intend to himself return to Hong Kong for the case in which event it did not appear to be possible for Mr Ford to succeed in the defence he was advancing. It was in these circumstances that the judge determined that Mr Ford should not be granted the indulgence of an adjournment. The way that the judge proceeded was in effect to put CLP to formal proof of the claim they were making. However, the judge did consider all of the material which had been furnished to him by Mr Ford. Moreover, the fact remains that Mr Ford could very easily have come to Hong Kong to conduct his case himself and chose not to do so.
86. Another complaint which was made by Lord Thomas was in relation to some of the interlocutory orders which had been made. In particular, complaint was made that the judge had declined to make an order for discovery. There is no merit whatever in these complaints. Moreover, a procedure is laid down in the rules for appeals to be lodged timeously against interlocutory orders. Mr Ford did not avail himself of these procedures within the prescribed time and cannot at this point of time be heard to complain.
87. Lord Thomas was also critical of the robust and forthright way in which Sears J expressed himself. It is however necessary to consider the merits of the case before him and in particular the fact that Mr Ford had completely ignored court orders which had been made and had seen fit to embark upon major litigation in the USA purportedly in an endeavour to protect his professional reputation. All of this was notwithstanding the fact that CLP had not publicly criticised him before he launched into his attack against them. It is not surprising therefore that the judge did express somewhat trenchant views on the litigation.
88. We do not consider that the allegations of unfairness have any real prospect of success as such, or, a fortiori, upon the basis that there was a real danger of bias, or of Mr Ford not having received a fair trial.
Prejudice
89. As we have noted, Mr Ford is now bankrupt, upon his own petition. If the judgment and orders are set aside, the likelihood is that CLP will have to bear the substantial costs thrown away. They cannot be said to be responsible for having caused such costs. There is also no reason why CLP should not enjoy the benefit of the judgment. The likelihood of CLP recovering those costs seems remote.
90. The matters that will have to be determined, including substantial disputes of fact, go back four or five years and more. Plainly, the evidence will be stale even if available.
91. In these circumstances, unquestionably CLP would be prejudiced if Mr Ford's application were granted, notwithstanding that the prejudice may not be thought to be particularly severe.
Conclusions
92. We come finally to review the factors bearing upon our discretion to extend time.
93. There is no question but that the delay of 17 months was inordinate.
94. The reasons given for the delay are not acceptable.
95. The chances of the appeal succeeding are remote i.e. there is no real prospect of success. No arguable case that would enable Mr Ford to escape the duty of confidentiality under legal professional privilege (that he has admitted) has been shown. Even if he were entitled to rely upon the confidential material in question, it does not begin to establish Mr Ford's case of a criminal conspiracy. Likewise, there is no real prospect of success in our view upon the ground of unfairness of the trial in respect of any of the several aspects raised or cumulatively.
96. Finally, there would be prejudice if the application were granted.
97. In the light of all of that, plainly the discretion of the Court could only be properly exercised in one way i.e. to refuse the application.
98. The four foregoing factors are only the normal factors to which regard is had. All of them are not essential nor are they exclusive or comprehensive. This Court is entitled to have regard to Mr Ford's conduct in the matter, as Mr M. Thomas for CLP has urged us to do. However, he does not say that Mr Ford is precluded from seeking relief or remedy from the Court while in contempt, but that Mr Ford was in contempt in failing to comply with subsisting orders made by Sears J and that such conduct should be taken into consideration in the exercise of the Court's discretion to grant the application. We agree.
99. Mr Ford failed to comply with and breached injunctions and orders to prevent the use of the restrained copy documents in the US proceedings, and to recover and return them. No explanation worthy of that word, nor any apology has been tendered to the courts in respect of that conduct. On the contrary, during the course of the hearing of this appeal it became obvious that the US proceedings, which have been mounted partly upon use of copies of the documents in question, are being actively pursued. Mr Ford has also failed to procure the return of copies given to "colleagues" and to give up copies he himself retained. There is no question of such failure or action being inadvertent, or being thought to be somehow legally justified. Mr Ford, through his counsel at the Privy Council hearing, had sought an undertaking from CLP that CLP would not seek to move for his committal for contempt if he were to return to Hong Kong to pursue his appeal.
100. Regard to such conduct provides confirmation of the strongest nature that the Court's discretion should be exercised against Mr Ford's application being granted.
101. But that is not all that so overwhelmingly weighs against the application. There are other features of the matter that likewise weigh heavily against Mr Ford. Before we come to these it has first to be said, as Lord Thomas stated on his behalf and Mr M. Thomas acknowledged, that his conduct was exemplary and in the highest traditions of the Bar up to about the time his instructions were withdrawn. He balanced his duty as a barrister, and his duty to his clients and to the Coroner's Court in an exemplary fashion - up to that point.
102. But then for reasons upon which it is not for us to speculate, he retained his clients' documents and returned them only after having made and retained copies. The copies he proceeded to disclose in breach of his duty of confidentiality to his clients, and to use to attempt to secure large scale damages commonly associated with the jurisdiction he resorted to, with which both he and CLP have little if anything to do in the context of his complaints. His reasons we have already set out, essentially in his own words. They sound to us as hollow as they clearly did to Sears J. If he was not prepared to conduct the case in the way instructed, he should have simply returned his brief and withdrawn from the case. That, in the normal and familiar way, would have disposed of the moral dilemma, of which so much has been sought to be made in this case, between Mr Ford's duty to the coroner and his duty to his clients.
103. His suspicions of a conspiracy are unfounded in terms of any real evidence. The conspiracy, despite the matters and proceedings having been on foot for several years, still remains to be particularised, in breach of well-established principle.
104. As an experienced barrister, he would have known from the beginning that he would have to justify his admitted retention and use of his clients' confidential and legally privileged documents with sound reasons and facts and not suspicions for which the necessary facts cannot be pointed to.
105. He attacked CLP but what harm or injury they had done him is not apparent. It is correct that he was dismissed as counsel by CLP. They maintained that they had lost confidence in him as they believed that he had lied to them concerning the discussions he had initiated with the Bar Council. What is important is that CLP did not openly criticise Mr Ford until after he had written what has been described (and not without justification) as his blackmailing letter and his giving instructions to his US attorneys to take legal action against CLP in the United States claiming an enormous amount of damages. Mr Ford was not defending his professional reputation. He was using the documents to attack CLP.
106. Of course, CLP's conduct may also be relevant to the exercise of the court's discretion. In that regard, Lord Thomas made a lengthy attack upon several aspects of their conduct. Having at its heart the alleged cover-up, of which we have found no real evidence, it has lost most of its thrust. However, we mention that there was equally no unequivocal evidence that Mr Ford was instructed to take part in any such cover-up, or that CLP attempted to silence him at all costs as submitted. On the other hand, some of CLP's actions do them little credit. Their erroneous complaint to the Director of Legal Aid that Mr Ford was practising in England was the result of mistaken identity, but nonetheless betrays an astonishing degree of carelessness. Likewise there can be little excuse for their having sought the Mareva injunction for the disproportionately enormous and unfounded amount of $25 million. But in the end these matters, and the others, which were of even less significance in our view, count for as little in balancing the exercise of discretion involved as they do in militating against CLP in the context of the maxims relied upon on Mr Ford's behalf (i.e. he who comes to equity must come with clean hands; ex turpi causa non oritur actio).
107. Finally, it remains to say that being fully conscious that the failure of his application would determine Mr Ford's intended appeal, in the end we permitted Lord Thomas in effect to make submissions of a very comprehensive nature on the grounds of appeal. Needless to say, we have carefully addressed both his oral and written submissions, the latter being concerned not directly with the application, but the appeal and therefore particularly pertinent to the prospects of its success. In addition to the documentary material to which we were referred in the numerous and bulky bundles, we have also studied the additional material we were asked to read. Our conclusions and exercise of discretion have been made in the light of all of that.
108. Mr Ford's application is accordingly dismissed.
Costs
109. We think costs should follow the event. There will accordingly be an order nisi that Mr Ford is to pay CLP their costs of and incidental to the application for leave to appeal, and for Mr Ford's own costs to be taxed in accordance with the Legal Aid Regulations.
| (G.P. Nazareth) | (Simon Mayo) | (A. Leong) |
| Vice President | Justice of Appeal | Justice of Appeal |
Representation:
Lord Thomas of Gresford and Mr Johnny Mok (M/s Boase, Cohen & Collins) for the Respondent/Cross Appellant
Mr Michael Thomas SC and Mr Cliff Smith (M/s Lovell, White & Durrant) for the Appellant/Respondent in the Cross-Appeal