CHARLES TSU YEW WONG AND ANOTHER v. BERMUDA TRUST (HONG KONG) LTD.

HCA 10631/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10631 OF 1998

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REASONS  FOR  DECISION

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1.  The defendant took out a summons pursuant to RHC Ord 33 rr 3 and 4(2) seeking the trial of a preliminary issue.  At the end of the hearing on 16 July 2008, I granted the application, indicating that reasons for doing so would be given later.  They are as follows.

2.  The plaintiffs commenced this action in June 1998.  They claim damages allegedly based on the defendant’s wilful default arising out of breach of trust in administering the estate of the late Wong Shih Sing who passed away in February 1983.  The plaintiffs are the 12.5% beneficiaries of the said estate (see para. 5 below).

3.  The breach averred to in the plaintiffs’ pleadings which was said to have resulted in delays and losses to the plaintiffs allegedly took place in November 1986 (para. 14, re-amended statement of claim).  The plaintiffs also allege that the defendant breached its duty in distributing the assets and money other than authorized (para. 22.1 thereof).

4.  The claim is denied by the defendant.  Among the various lines of defence, the defendant relies on the provisions in the Limitation Ordinance (Cap. 347) and asserts that the plaintiffs’ claim has been time-barred (para. 3 to 5, defence).

5.  The plaintiffs’ reply consists of one paragraph:-

“At the time of the accruing of the Plaintiff’s [sic] causes of action in respect of breach of trust and for an account, the said SC Wong was of unsound mind within the meaning of Section 22 of the Limitation Ordinance and from those times was never of sane memory or understanding in which condition he continues at the date hereof”.

In the plaintiffs’ pleadings, SC Wong is said to be the settlor of a trust agreement dated 11 September 1996 granting to the plaintiffs the properties described therein.  Those properties included SC Wong’s right title and interest in the said estate.

6.  The questions sought to be tried as preliminary issues are in short:-

(a) whether SC Wong was under a disability as being of unsound mind at the time of accrual of action;

(b)    if so, whether he subsequently ceased to be so, and if the disability ceased, when it ceased.

7.  The law relating to whether a trial of preliminary issue should be ordered is trite and can be summarized as follows:-

(1) an order for the separate trial of separate issues is a departure from the general rule that all disputes should be tried together, and therefore generally speaking, such an order should only be made in exceptional circumstances or on special grounds;

(2) such an order will be made where it is just and convenient to do so (instances where it is appropriate or inappropriate to make the order are given below by way of examples);

(3) where costs can be saved by obtaining a ruling on a point of law which requires serious argument and consideration being disposed of before trial, the point should be raised in the pleading and application should be made under Ord 33 rr 3 and 4(2) for the trial of this point as a preliminary issue;

(4) the order, as a rule, will only be made if the objection raises a serious question of law which, if decided in favour of the party objecting, would dispense with any further trial, or at any rate with the trial of some substantial issue in the action;

(5) the order should not be made in respect of matters to which, by reason of the obscurity either of the facts or the law, ought to be decided at the trial;

(6) the order for the trial of a preliminary point of law should not be made where there are facts in dispute, and if made may be set aside at the hearing;

(7) an “issue” which involves dealing with the whole subject matter of the action without any evidence is not a preliminary point and should not be ordered to be tried as such;

(8) where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination, for to do so would in effect be to give legal rulings in vacuo or on a hypothetical ruling, which the court will not do.

Lee Yiu Kwan v. Ting Yin Wah and Another [2004] HKEC 1222; Hong Kong Civil Procedure 2008, Vol. 1, para. 33/4/9A; Telford Development Ltd. v. Shui On Construction Co. Ltd.  [1999] 2 HKC 110.

8.  Hong Kong Civil Procedure 2008, Vol. 1, para. 33/4/10 has identified two matters (and recognized that there may be others) arising out of Cap. 347 which could be appropriate circumstances usually to be made the subject of an order for the trial of a preliminary issue.  But it cautions:-

“… great care and discretion should be exercised before ordering the trial of a preliminary issue, particularly so as to avoid the duplication of such a trial and the trial of the action itself, with the consequent increase in costs, delay and effort”.

9.  Similarly, in Chan Jak Tung (t/a Forward & Co.) v. Baltrans Ltd. and Others [1997] 1 HKC 89, Waung J, in refusing a similar application, cited (among other authorities) Allen v. Gulf Oil [1981] AC 1001.  Lord Roskill said in Allen:-

“The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity.  But cases in which such invocation is desirable are few.  Sometimes a single issue of law can be isolated from the other issues in particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole … ” (p. 1022A).

10.  Where it is appropriate to make an order for the trial of preliminary issues, the question of law or construction to be determined by the court under the order still needs to be stated or formulated in clear, careful and precise terms, so that there should be no difficulty or obscurity, still less any ambiguity, about what is the question that has to be determined: Lee Yiu Kwan, above; Hong Kong Civil Procedure 2008, Vol. 1, para. 33/4/9A.

11.  In this application, the preliminary issue involved is whether s. 22, Cap. 347 applies.  The relevant provisions of s. 22 are:-

“(1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Ordinance, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability … , whichever event first occurred, notwithstanding that the period of limitation had expired … ” (emphasis supplied);

“(3) For the purposes of this section and section 22A, a person shall be deemed to be under a disability while he is … of unsound mind … ” (emphasis supplied).

12.  Whether SC Wong was of sound mind at any time prior to the commencement of this action is an issue sufficiently distinct from the other issues raised by the pleadings herein.

13.  The evidence which is required to establish SC Wong’s mental condition is therefore also sufficiently “self-contained”.  It comes from two sources: medical expert evidence and evidence from person(s) who can testify to that matter (for example, person(s) who may testify as to his mental condition by reason of their contacts with him).

14.  The trial of this action has been placed in the “long case list”.  The defendant contends that the trial may last for months.  Whether this is an accurate time estimate, the length of trial is likely to be substantial.  The facts which are in dispute also appear to be involved and spanned over many years.

15.  The determination of the above preliminary issue will probably take much less time, and if it is resolved in the defendant’s favour, will finally dispose of this action.

16.  Accordingly, I agree with the defendant that this application falls within the exceptional circumstances referred to above.

HCA 10631/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10631 OF 1998

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D E C I S I O N

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Introduction

1. This is the plaintiffs' application inter alia for the following order against the defendant:-

"the bundles of documents enumerated and described in Schedule 1 Part 1 of the Defendant's list of documents, be properly identified by enumerating and describing each of the documents within each bundle and properly describing each of and whether such document is a copy or original".

There were originally 2 paragraphs to this application. The other paragraph has already been dealt with, leaving only the paragraph set out above to be dealt with herein.

2. The above application is made pursuant to RHC Ord 24 r 5(1) (the title of which is "Form of list and affidavit") the relevant part of which reads:-

"A list of documents made in compliance with rule 2 ... must be in Form No. 26 in Appendix A, and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified" (emphasis supplied).

3. The issue which divides the parties is whether the documents set out in the defendant's list of documents are "bundles of documents of the same nature" within the meaning of the above rule: the plaintiffs argue that they are not while the defendant contends that they are.

The Relevant Legal Principles

4. The plaintiffs rely on the judgment in Sveriges Angfartygs Assnrans Forening v. The 1976 Eagle Insurance Company SA and others, unrep., 28 March 1990 Transcript (Hobhouse J. (as he then was)) in support of this application. The defendant does not dispute the validity of the reasoning or conclusion in that judgment. The relevant passages in the Sveriges Angfartygs Assnrans case are:-

"The question that I have had to consider is what is necessary to comply with the strict requirements of Order 24 rule 5(1) for the enumeration and description of the documents which are included in schedule 1 part 1 of the list. The Third Defendants served a list of documents on the Plaintiffs which included five items in schedule 1 part 1 each of which was described as a file having a certain number of pages. They are in almost identical terms. For example File number 1 is described as

'R/I Swedish Club Hull. Stop Loss 1/1/84 - 1/1/86' containing original or copy documents relating to 1984 and 1985 Stop Loss Reinsurance'

- pages 1 to 345.

File Number 3 is described as

'Swedish Club Stop Loss 1986/1987' containing original or copy documents relting [sic] to 1986 Stop Loss Reinsurance

- pages 1 to 291.

The Plaintiffs objected to this form of list and said that it did not comply with Order 24 rule 5(1). They said it is a disclosure of bundles of documents and that, since those documents are not all 'of the same nature', this does not suffice and that they should have delivered a list which enumerated the documents individually, describing each of them ...

I was provided with File No. 3 as a sample of the files listed. It is a fairly typical reinsurance broker's file. It contains a large number of diverse documents, though, because some of the documents run to more than one page, the total number of documents is probably about 200 not 291. They include telexes and faxes and draft telexes, notes of telephone calls, some working papers and other miscellaneous informal notes, some statements of account and invoices, an unsigned slip, a policy, various policy endorsements, confirmations of cover and cover notes, and finally certain certified accounts and financial statements. These are clearly not on any ordinary use of English all documents 'of the same nature'. Their common factor is that they are in the possession of the same firm and arise from or in connection with the same transaction. If such criteria were to be accepted as justifying the listing merely on a bundle without enumerating its contents, then, quite apart from its being contrary to the express language of the rule, the rule would cease to have its intended effect. There must be many instances of litigation where the documents to be produced by one side, although diverse in character and not of the same nature, could all be included in a single bundle if the Third Defendants' submission were right".

Hobhouse J later rejected the third defendants' submission in a subsequent part of his judgment.

5. In the course of argument, the third defendants in the above case relied on certain 19th century decisions of the court of appeal in England the effect of which was summarised in a quotation from Taylor v. Batten [1878] 4 QBD 85, 87:-

"All the Court requires, where there is no question of privilege or objection to produce the documents, is that they should be so far identified, that the Court can see that the documents referred to are produced if required".

Hobhouse J observed that the description of the documents in Taylor as being "numbered 50 to 76 inclusive" and "tied up in a bundle marked with the letter A and initialled by me" was held in Taylor to be sufficient. However, he found the earlier cases to be unsuitable for present day application for the following reasons:-

"The Rules of Court and the procedure in relation to the discovery of documents were different in the 19th century from that which has existed in the High Court since about 1964. In the last part of the 19th century the relevant Rules of Court was Order 31 which dealt with both discovery of facts, by ... interrogatories, and discovery of documents. Such discovery was to be given pursuant to a specific order by the Court, in the case of discovery of documents, requiring an affidavit to be sworn ... Neither the relevant rule nor the form were in the more precise terms that are presently in force. There was no rule which defined when bundles were or were not appropriate and even at that time there was more than one judicial view ... [referring to Milbank v. Milbank [1900] 1 Ch 383 to 384] ... If the only criterion was certainty, the Third Defendants' list in the present case would satisfy that test; but under the modern Rules of Court that it [sic] not the only criterion".

Later, he continued:-

"Decisions on procedural matters are governed by the Rules of Court in force at the time and the practical considerations pertaining at the time ... The procedure of the courts, subject to the framework of legislation ... has to develop and adapt ...

At the present day discovery of documents is part of the ordinary procedure of High Court actions ... The level of documentation that is now involved in business transactions is different in kind and amount from that which was involved in the 19th century. The assembly of relevant documents, and the sifting of the relevant from the irrelevant, ... is an essential part of the process by which the merits of the respective parties' contentions in the dispute are to be evaluated and if necessary determined ... ".

6. The learned judge also dealt with who should be responsible for ensuring the proper itemisation of documents which need to be discovered:-

"The organisation of the documents which have a bearing on the dispute is a major task for those representing the parties and a major burden of costs for the litigants ... Who is to do the work? Is it the party giving the discovery or the party to whom the discovery is being given. Clearly circumstances may differ from one case to another, but one of the purposes of the Rules of Court is to lay down what the ordinary division of responsibility shall be ... The Rules of Court require the party giving the discovery to itemise the individual documents with some description, however brief, of the document. The obligation is qualified by a limited exception regarding documents of the same nature ... " (emphasis supplied).

7. The importance of the discovery process was also discussed by the learned judge as follows:-

"... a party on whom a list of documents has been served is, unless the Court otherwise orders, deemed to admit that any document described in the list as an original document is such a document created as it purports to have been created and that any document described as a copy is a true copy.

This rule is an important part of the efficient preparation of the documentary evidence for use at a trial. As the Third Defendants admitted before me it cannot be effective unless an itemised list of documents is served ... Without such a list as the starting point a different procedure would have to be adopted. It also provides a safeguard against those (albeit rare) instances of excessive disclosure of documents which are not in fact relevant ... ".

8. Finally, having concluded that the party giving the discovery is responsible for properly itemising the individual documents, the learned judge observed that the court expects the legal representatives to co-operate with each other when using the procedures of the court so as to achieve an appropriate outcome to the litigation with expedition and economy. Thus, he said:-

"There must be an element of give and take between solicitors and common sense must be applied. Parties are perfectly at liberty to agree to informality when that is appropriate. There may be many cases where costs can be saved by adopting a flexible and fairly informal approach to discovery. But it must at the same time be appreciated that the discipline provided by the Rules and procedures of the Court exist because in general a disciplined appraoch [sic] is more efficient and, in the long term, more expeditious and economical and will better serve the ends of justice ... " (emphasis supplied).

The Present Application

9. The defendant's list of document contains 14 items. Although the plaintiffs' application has not stated if it covers all 14 items, it was agreed at the hearing that only items 7 to 11 in the defendant's list are in issue in this application.

10. It was also agreed that items 1 to 11 of the defendant's list can be categorised into 3 types of file. Because of the nature of the transactions for which the files were kept, they were called (for convenience) conveyancing files, accounts files and general administration files respectively. As the names imply, conveyancing files contain documents relating to conveyancing transactions and accounts files contain documents relating to accounts. As will be explained further below, this action was based on the defendant's alleged breach of trust in the administration of the estate of a deceased. The plaintiffs claim to be beneficially entitled to the said estate. The general administration files are related to the said administration of the estate. Items 7 to 11 fall within the general administration files category.

11. After the defendant's list of document was filed (on 14 November 2001), the plaintiffs inspected some of the files referred to therein on 21 and 24 December 2001. As a result, the plaintiffs compiled a list of the inspected documents ("the plaintiffs' inspection list"). The plaintiffs' inspection list sets out only the documents in items 7 to 11 of the defendant's list which the plaintiffs were able to inspect on the said 2 days and, according to the plaintiffs' solicitors, is not a list of all the documents in the files. The plaintiffs' inspection list states inter alia that:-

(a) 16 documents were inspected in relation to item 7 of the defendant's list of documents;

(b) 10 documents were inspected in relation to item 8 of the defendant's list of documents;

(c) 80 documents were inspected in relation to item 10 of the defendant's list of documents;

(d) 49 documents were inspected in relation to item 11 of the defendant's list of documents.

From the descriptions given in the plaintiffs' inspection list, the inspected documents include, by way of example, notes, letters, memoranda, documents for transfer of shares, resolutions, fax messages, debit notes, proxy forms, balance sheets, director report, accounts and schedules to accounts, estate profile, declaration of trust and form of discharge and indemnity. It is immediately apparent that a wide range of documents were found in the files in question.

12. Further, at the end of the hearing, defendant's solicitors have kindly provided me with one of the actual files (item 7 of the defendant's list of documents) as a sample. A cursory examination shows that the file contains diverse documents similar to those referred to above. Some of the documents are in Chinese while others are in English.

13. Whether discovered documents are "bundle(s) of documents of the same nature" and therefore can adequately be itemised as a bundle should not be determined solely by the character of the documents themselves. Consideration must also be given to the nature of the action in which discovery is made as well as the issues raised therein. This is because sometimes, by reason of the nature of the action and the issues raised, there is no proper need for itemising the individual documents. It is not desirable (if at all possible) to state generally when such a course is appropriate; each case depends on its own circumstances. With this in mind, I now turn to consider the nature of this action and the issues raised by the pleadings.

14. As stated above, the plaintiffs commenced this action alleging a breach of trust in the defendant's administration of the deceased's estate. The plaintiffs' allegations are contained in their Re-Amended Statement of Claim. The pleading is not a model of clarity when setting out the alleged breach of trust but I will try to summarise the relevant allegations as best I can. The deceased passed away in February 1983. The defendant was appointed the administrator of the deceased's estate in March 1983. Letters of Administration were granted to the defendant in February 1986. Events said to support or related to a breach of trust include the defendant's:-

(1) agreeing to change the company structures of WT Investment Co (Bermuda) Ltd and WT Investment Co (Panama) SA in November 1986;

(2) confirming the appointment of Wing Tak Steamship Co (HK) Ltd to manage the administration of the deceased's estate in March 1983 (in place of the defendant);

(3) failing to timeously administer the deceased's estate and failing to obtain estate duty clearance until 1994 resulting in a failure to distribute the estate until 1995. The delay in distribution was also said to be at the direction of 2 individuals through Wing Tak Steamship Co (HK) Ltd;

(4) distributing assets and moneys to a Panamanian company instead of the beneficiary who was entitled to such distribution;

(5) agreeing to a quantification of a beneficiary's share in the deceased's estate without proper enquiry;

(6) failing to give a full account of a beneficiary's entitlement to the deceased's estate in September 1992;

(7) failing to ensure that a beneficiary was properly and independently advised.

I have not included in the above summary various references in the pleading to company shareholdings, correspondence, company general and board meetings, valuation of properties, company accounts and the like which were relied upon as either in support of or related to the alleged breach of trust. In its Defence, the defendant defends this action essentially on the grounds that the deceased's estate has been fully and completely administered. It is further pleaded that the claim is in any event time-barred. The breach of trust is denied.

15. In view of the nature of this action, including the length of the period during which the alleged breach of trust is said to have taken place and the detailed events said to be in support of or relating to such breach, there is a need to properly discover the related documents and records. A mere reference to the files containing them is inadequate in view of the legal requirements (set out above) when they are applied to this action.

16. By reason of the above matters, an order should be made in terms of the plaintiffs' application (set out above) in relation to items 7 to 11 of the defendant's list of documents.

17. In the course of argument, defendant's solicitors submitted, among other things, in effect that I may have a discretion in refusing to make an order. With respect, I disagree with this submission because the legal requirements are laid down by Ord 24 r 5(1) and, once it is shown that the list of document is inadequate, the court should ensure that the legal requirements are complied with by granting the appropriate order. No discretion is involved. Solicitors for the parties also raised arguments relating to the reasonableness (or otherwise) of the plaintiffs taking out this application. Again, I do not find such arguments to be relevant to whether the order sought should be granted. They may be relevant to the question of costs of this application but that is a separate point.

18. In view of the arguments which the parties may wish to advance after perusing this decision, I do not consider it appropriate to make a costs order nisi.

Representation:

Mr Collins, of Messrs Boase, Cohen & Collins, for the Plaintiffs

Mr Andrew Hart, of Messrs Barlow Lyde & Gilbert, for the Defendant

1998 No. A10631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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The facts

1. Wong Shi Shing died intestate in 1983. He left a widow and four children - William, Jack, David and Mary. Before her father died, Mary had agreed to transfer any interest she may have had in her father's estate to William and David in equal shares. After her husband died, the widow's interest in her husband's estate was transferred to William and David, and they settled the interests in the estate upon trust by a settlement named the T'zu Te Trust.

2. In 1996, Jack's sons, Alexander and Charles, were appointed as a committee of Jack's estate under the Mental Health Ordinance (Cap. 136). Later in 1996, a court in Hawaii directed that Jack's interest in his father's estate be settled upon trust. Pursuant to that direction, Jack settled his interest in his father's estate upon trust by a settlement named the Shou Chee Wong Living Trust ("the Hawaiian Settlement"). As a result of these transfers and settlements, and as a consequence of the provisions of the Intestates' Estates Ordinance (Cap. 73), the beneficial interests in Wong Shi Shing's estate (ignoring the widow's statutory legacy) are now as follows:

The trustees of the T'zu Te Trust	50%
William	18.75%
David	18.75%
The trustees of the Hawaiian Settlement	12.5%.

3. The various interlocutory summonses now before the court have been issued in proceedings which were commenced in June 1998. In those proceedings, Jack is the Plaintiff, though he is suing by Charles who is his next friend in the proceedings. The Defendant is a trust company which was granted letters of administration in connection with Wong Shi Shing's estate in 1986. In the proceedings, Jack makes a number of claims about the Defendant's administration of his father's estate. He claims damages for breach of trust and ancillary relief. The facts which I have summarised have been taken from the Statement of Claim in those proceedings.

The additional Plaintiffs

4. The first question which I have to decide is whether Alexander, Charles and the First Hawaiian Bank, who are collectively the trustees of the Hawaiian Settlement, should be added as plaintiffs in the proceedings. It is not disputed that they would be proper plaintiffs. The only problem is that Ord. 15 r. 6(4) provides:

"No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized."

The trustees of the Hawaiian Settlement have purported to signify their consent in writing to being added, but by facsimile only, and so far as the First Hawaiian Bank is concerned, its consent is undated and it does not state that the official who signed the consent is duly authorised by the Bank to signify the Bank's consent.

5. However, the Supreme Court Practice 1999, Vol. 1, para. 15/6/5 reveals that the practice in England (where Ord. 15 r. 6(4) is in identical terms) is that an order adding a plaintiff may be made even though no signed consent is produced on the hearing, the order being that the proposed plaintiff be added as a plaintiff on production of his consent in writing at the Central Office. I can think of no compelling reason why such a practice should not be adopted in Hong Kong. Subject, therefore, to what I am about to say about the validity of the consent, I order that Alexander, Charles and the First Hawaiian Bank be added as plaintiffs in the proceedings, on production of their original consents in writing at the Registry, and on condition that the consent of the First Hawaiian Bank is dated and signed by an official who himself or herself states that he or she is duly authorised to signify the Bank's consent. Such consents must be produced at the Registry within 14 days of today.

6. The point, though, is taken that the consent required by Ord. 15 r. 6(4) has to be a valid consent, and that the consent produced by the trustees of the Hawaiian Settlement in the present case was invalid. The reasoning is that although the trust deed gave the trustees the power to take legal action in Hong Kong if the trustees thought that such action was in Jack's best interests, they were required to take Jack's wishes into account before coming to that decision. It is said that there is no evidence that Jack's wishes were taken into account. I do not think that Ord. 15 r. 6(4) contemplates in normal circumstances an inquiry by the court into the validity of the consent. Nor do I think that the court should in normal circumstances refuse to exercise its discretion to join a party until the validity of its consent has been established. Although there are some unusual features about the present case, I do not think it right to depart from what I believe the general rule to be. If it is said that the circumstances giving rise to the power in the trustees to bring these proceedings have not been triggered because Jack's wishes have not been taken into account, that can be explored in the action rather than in satellite litigation at the present stage. Accordingly, the order which I have made is not affected by any argument relating to the validity of the Bank's consent.

Is Jack a proper plaintiff?

7. The next question is whether Jack is properly named as a plaintiff. Ord. 15 r. 6(2)(a) enables the court to "order any person who has been improperly or unnecessarily made a party ... to cease to be a party". It is said that Jack was improperly or unnecessarily made a party because his interest in his father's estate is now vested in the trustees of the Hawaiian Settlement. Since his interest in his father's estate is vested in the trustees, only the trustees are vested with the cause of action entitling them to sue the Defendant for breach of trust and ancillary relief.

8. For my part, I know of no principle which permits a person in whom a cause of action is not vested to be named as a plaintiff in proceedings relating to such a cause of action. The concern, though, of Mr. Gordon Fisher for Jack and for the trustees of the Hawaiian Settlement is that the Defendant's solicitors' have said in correspondence that the Defendant does not necessarily accept that the trustees of the Hawaiian Settlement were validly appointed. If that point is eventually taken in the Defence, and if the consequence of the appointment of the trustees being held to be invalid would be that the Hawaiian Settlement would be set aside, the cause of action would then have been vested in Jack all along. Mr. Fisher wishes to avoid the possibility of the current claim being dismissed because of Jack not being joined as a plaintiff.

9. In my view, this concern is premature. It may be that it will not be alleged that the trustees of the Hawaiian Settlement were not validly appointed. It may be that it will not be alleged that any invalidity in their appointment would affect the Hawaiian Settlement. At present, the Defendant's position is that the trustees of the Hawaiian Settlement are the proper plaintiffs. It is only if that stance changes that a question mark will arise over whom the cause of action actually vests in.

10. However, it is said that, even if no cause of action vests or could vest in Jack, there is no point in Jack being ordered under Ord. 15 r. 6(2)(a) to cease to be a party because he will then have to be added as a party under Ord. 15 r. 6(2)(b)(i), which provides for the joinder as a party of any person "whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon". Two arguments are advanced by Mr. Fisher in support of his contention that Jack's presence before the court is necessary for that purpose, and I take those arguments from his skeleton argument. First,

"... insofar as the Hawaiian Settlement involved, inter alia, an assignment of a right to sue for damages, the legal right thereto remains vested in the assignor [Jack]. Accordingly, the assignees [the trustees] who themselves hold the assigned right on trust for the assignor [Jack] are entitled to perfect their position by insisting that the assignor [Jack] be a party to the action wherein the right to sue is being exercised."

I reject this argument. There was no assignment of a right to sue for damages. There was a transfer by Jack of his interest in his father's estate. His interest in his father's estate has been converted into an interest under the Hawaiian Settlement. Since there is no question of him having retained an interest in his father's estate, he has no right to sue on the basis of a cause of action vested in the estate.

11. The second argument in Mr. Fisher's skeleton argument reads as follows:

"... there is a substantial pragmatic reason why [Jack] ought to remain a party when the Trustees are added. This is that the Hong Kong Court of Protection is already seized of [Jack's] affairs and, in such circumstances, it is submitted that it would be prudent - both for [Jack's] own position and that of his Committee - for an action in the Hong Kong courts [to] be brought only with the court's authority to sue, that is, by having [Jack] as a party to any such action in the Hong Kong courts."

This argument proceeds on a false assumption. It proceeds on the assumption that Jack has the right to sue in respect of a cause of action vested in the estate. Since he does not have that right, there is nothing for the court to protect.

12. For these reasons, therefore, I order that Jack ceases to be a party to the proceedings.

Para. 21.8 of the Statement of Claim

13. The final question which I have to decide relates to para. 21.8 of the Statement of Claim. Paras. 19 and 20 of the Statement of Claim plead various breaches of duty on the part of the Defendant. Para. 21 purports to plead the loss sustained by the Plaintiff as a result of these breaches. There are then pleaded the particulars of those breaches of duty which are said to have given rise to that loss. Included in those particulars is para. 21.8 which merely reads:

"Correspondence between the Plaintiff and the Defendant and between the Defendant and [various third parties] with regard to the Plaintiff's beneficial entitlement and various other correspondence without considering independently the Plaintiff's position."

The 46 letters which make up that correspondence are then listed.

14. It is contended that para. 21.8 should be struck out on the ground that it may prejudice or embarrass the fair trial of the action. It is said that para. 21.8 is not sufficiently comprehensible, and in any event it pleads evidence, not facts. I have some sympathy with those arguments, because without wishing to be judgmental I do not think that para. 21.8 is all that clear. However, I am not prepared to strike it out. What is being said in para. 21.8 is that the mere sending of these letters constituted the breaches of duty which resulted in loss. Mr. Fisher has expressly confirmed that it is not the contents of the letters on which reliance is placed. It may be difficult to see how the mere sending of these letters would have constituted breaches of the particular duties alleged, and it may be very difficult to see how they could have caused loss, but that is a matter for evidence at the trial. And since the sending of the 46 letters which are identified in the particulars constituted the facts which are alleged to amount to the breaches of duty, the letters cannot be said to constitute simply the evidence to be called to prove those facts. For these reasons, I decline to strike out para. 21.8 of the Statement of Claim.

Paras. 24 and 25 of the Statement of Claim

15. Finally, the Defendant sought the striking out of paras. 24 and 25 of the Statement of Claim. It is accepted that there are deficiencies in the drafting of those paragraphs. Mr. Fisher wishes to have an opportunity to consider how they might be redrafted. He seeks an adjournment of that part of the Defendant's summons for that purpose. Mr. Michael Bunting for the Defendant does not oppose that application. I therefore adjourn the hearing of that part of the Defendant's summons sine die with liberty to restore upon 14 days' notice after a copy of the proposed Amended Statement of Claim has been served on the Defendant's solicitors.

Representation:

Mr. Gordon Fisher, instructed by Messrs. Boase, Cohen & Collins, for the Plaintiff and the proposed Plaintiffs.

Mr. Michael Bunting, instructed by Messrs. Stephenson Harwood & Lo, for the Defendant.