LEE CHAN CHENG, SOLICITORS & NOTARIES v. YUNG MEI CHUN

HCA4594/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4594 OF 2002

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J U D G M E N T

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1. This is an appeal against Master Roy Yu’s decision in refusing the discovery of counsel fee notes and other related documents, and the correspondences in relation to a totally different and earlier case which gave rise to those notes and documents.

Background

2. The plaintiff is a solicitors’ firm which acted for the defendant, who was also the defendant in the District Court Action No. 15756 of 2000 (“the DC Action”).  The plaintiff now seeks to recover $614,805 from the defendant as legal costs in the DC Action.  The defendant resisted the claim and counterclaimed against her previous solicitors on the ground of professional negligence.  The defendant submitted that the trial judge for the DC Action, Deputy Judge Chan (“Mr Wilson Chan”) was biased in his judgment because he had a monetary dispute with the plaintiff solicitors in an earlier case (“the Earlier Case”).

The ground for professional negligence

3. The ground for professional negligence is regrettably not stated in the clearest term in the Defence and Counterclaim and Ms Yung’s skeleton submission.  She was acting in person all along.  The failure to put forward a clear ground for professional negligence has caused much confusion.  At this point it is helpful to ask : What did the plaintiff do, as alleged by the defendant, that resulted in professional negligence as alleged?

4. Paragraph 8 of the Affirmation of Yung Mei Chun reads :

“The Defendant submits that the existence of the monetary disputes between the Plaintiff and the deputy trial judge sufficiently caused the deputy trial judge Wilson Chan to have bias against the Plaintiff and the Defendant when Wilson Chan gave its judgment of DCCJ 15756 of 2000 [the DC Action]which are against both the Plaintiff and the Defendant.”

5. The defendant in this action relies on several questions that were put forward by the trial judge Deputy Judge Chan to the defendant’s witnesses to establish that the learned judge was biased against her. 

6. The defendant alleged that the monetary dispute arose from the plaintiff’s failure to settle in full the amount stated in Mr Chan’s counsel bills relating to the Earlier Case.  She said in her witness statement (at p. 275 of plaintiff’s bundle) that she first heard of this dispute from Ms Angela Lau at Lau’s office only at the end of the second trial.  She said :

“During the meeting, Angela Lau of the plaintiff told me that the plaintiff had instructed the trial judge, Wilson Chan, to act as a counsel for another action earlier in 2002…  But there were disputes on the Counsel fees and it was an unhappy ending.”

She said she did not know the details of the dispute while she was appealing against the judgment in the DC Action. 

7. The defendant now seeks to “inspect and take copies, all the documents relating to the counsel fees in another proceedings, including but not limited to, correspondences exchanged between the plaintiff and Wilson Chan [Deputy Judge Chan], the fee notes, revised fees notes, subsequent payments including bank cheques and statements, receipts and any final agreements on the counsel fees”.  The defendant did not explain how she would use these items in the establishment of professional negligence.

8. In my view, what the defendant wants to do with those items was to suggest that there was an earlier monetary dispute between the plaintiff and the learned deputy judge, and the plaintiff was negligent in not advising the defendant to raise this matter before the learned judge before trial on the ground of presumed bias and request him to recuse himself.

9. The defendant also said at para. 10 of her affirmation :

“The plaintiff gave evidence, through the Counsel asked Wilson Chan to accept the defendant’s evidence that it was the plaintiff who advised the defendant and her husband not to disclose the hand book…”

This would appear to be another possible ground for negligence.  In effect the defendant is saying that the plaintiff was negligent in its failure to advise the defendant to produce a certain hand book earlier in the trial. 

10. Thus there are two grounds for professional negligence.  The first ground was the failure of the plaintiff to advise the defendant to raise the matter of a monetary dispute before Deputy Judge Chan.  The second ground was the failure of the plaintiff in advising the production of a hand book at an earlier stage.

11. Although it is not strictly necessary for me to comment on the second ground at this stage, for the purpose of saving the time and costs of both parties in future proceedings, I would add but not decide that the second ground is flawed.  It would appear that the defendant initially blamed her former counsel but not her solicitors for the failure to produce the “hand book” or advising her that it was not necessary to disclose the “hand book”.  Deputy Judge Chan dealt with this “hand book” (referred as the “notebook”) in paragraph 119 of his judgment :

“119. At the end, I am satisfied that I should attach no weight at all to the notebook.  I find it most surprising that such an allegedly important document was not disclosed until the eleventh hour.  In order to excuse that, the defendant sought to lay the blame on her former counsel.  According to the defendant, at a conference attended by both the defendant and her husband, they mentioned to counsel the existence of the notebook.  However, her former counsel advised that it was unnecessary for him to see the notebook and he did not ask the defendant to produce the document.  Frankly, I find this evidence wholly unconvincing and incredible.  I reject the same.”

12. It is up to the defendant to decide whether she still wants to pursue the second ground of professional negligence in light of what was held in the DC Action.  If she wants to pursue the second ground she must state it clearly as a ground of professional negligence, rather than putting it under the heading “Evidence that the deputy trial judge, Wilson Chan, had bias against the plaintiff and the defendant”.

The purpose behind the discovery

13. The defendant did not say clearly what her purpose behind this discovery proceedings was.  I suppose the primary purpose for the discovery of these documents is to establish that there was a monetary dispute between Mr Chan and the plaintiff.  These documents may also show the extent of the dispute and its outcome.  It appears that the defendant does not intend to use these documents to show that the learned judge was biased.  It seems that the defendant is confident that the judgment in the DC Action, together with the question quoted above regarding the “hand book” are sufficient for establishing that the learned judge was indeed biased.

The problem of res judicata

14. As this action is highly relevant to the DC Action, I am particularly mindful of the danger of allowing the defendant to abuse the process of the court by re-opening an issue that could and therefore should be raised in an earlier proceedings.  The problem with the defendant’s contention is that it will inevitably raise the issue of whether Deputy Judge Chan was biased, which could and should have been brought in the DC Action and its subsequent appeal, which was dismissed by the Court of Appeal.  This can be described as res judicata in “a wider sense” (per Lord Kilbrandon in Yat Tung Investment Co. Ltd v Dao Heng Bank Ltd [1975] AC 581).

15. The law has developed since the Yat Tung case and it is now settled law that a broader approach needs to be adopted (Johnson v Gore Wood & Co. [2002] 2 AC 1, endorsed by the Hong Kong Court of Appeal in Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111).  Cheung JA in Ngai Few Fung referred to the Yat Tung case (as explained by Lord Bingham in the Johnson case) and laid down the following principles regarding this branch of res judicata at para. 16 :

“(1)    The principle is to serve public interest in that there should be finality in litigation and that a party should not be twice vexed in the same matter.

(2)    This is reinforced by the current emphasis on efficiency and economy on the conduct of litigation, in the interests of the parties and the public as a whole.

(3)     The onus is on the party alleging abuse.

(4)     The bringing of a claim or the raising of the defence in later proceedings may, without more, amount to abuse if the court is satisfied that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

(5)     It is, however, not necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty. But where those elements are present the later proceedings will be much more obviously abusive.

(6)     There will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.”

16. At para. 17, Cheung JA further cited Lord Bingham’s judgment with approval at page 31 C-E, [2002] 2 AC 1 :

“It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

17. Is the current proceedings an abuse of process?  In the hearing, I asked the defendant why she did not raise the bias argument in the Court of Appeal when she was appealing against the judgment of the DC Action (HCMP4776/2003).  She replied that she was aware of the alleged dispute only after the appeal.  Apparently, there is no delay on the part of the defendant in bringing forward this argument.

18. I also note that the bias argument was raised as a counterclaim to the plaintiff’s claim for legal fees.  The defendant is resisting a larger sum in the current proceedings than she was in the DC Action.  The defendant submitted that she has no intention to contest the issues in the DC Action once again and I believe this to be the case.  There is no reason why the defendant would want to complicate the current proceedings (a larger sum) with the issue of re-opening a District Court final judgment (a lesser sum).

19. Also, the defendant is not vexing the plaintiff a second time with her counterclaim.  The issue of professional negligence is only brought for the first time. 

20. Thus it appears that nothing contravenes the test laid down by Cheung JA in Ngai Few Fung.  On the broader consideration of public interest, it is unjust for a solicitor’s firm to say that it can escape from the allegation of professional negligence merely because the allegation could have been brought in an earlier proceedings (res judicata in a wider sense).  This will create an unacceptable hurdle to every claim in professional negligence against solicitors.

21. Although this was not raised by the plaintiff, I observe that even if the defendant can establish the existence of a monetary dispute and a breach of duty of care, she may have difficulty in establishing damage and causation.  It is true that this court has no jurisdiction to say that the DC Action was wrongly decided and that the defendant suffered from the adverse outcome of the DC Action.  The situation is similar to other professional negligence cases where the claimant is unable to establish that the case would have proceeded differently had the solicitors acted competently.  The law regarding those situations is explained in great detail in the Eleventh Edition of Charlesworth & Percy on Negligence (8-277 onwards).  For the purpose of the present proceedings, the defendant may have suffered damage simply because she had lost a chance to have a different judge in the DC Action. 

22. It is of fundamental importance that justice must be seen to be done as well as actually done.  A judge may be asked to recuse himself if there is an apparent bias.  Lord Brown-Wilkinson in Reg. v. Bow Street Magistrate, Ex p. Pinochet (No. 2) [2000] 1 AC 119 explained that an apparent bias may arise if “his [the judge’s] conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party.” (page 133 A to B).  The present situation is the exact opposite to the example given by Lord Browne-Wilkinson because the suspicion flows not from friendship but hostility.  If before the trial of the DC Action, the defendant could successfully establish that a hot dispute existed not long before the trial between the plaintiff and Mr Chan, she could have asked the learned judge to recuse himself without actually establishing that he would be biased.  The “damage” which the defendant suffered as a result of the allegedly negligent act of failing to advise her about the monetary dispute is the loss of a chance to ask Deputy Judge Chan to recuse himself.

23. The issue of whether the loss of a chance to ask a judge to recuse himself can be regarded in law as a form of damage remains to be determined.  It is not necessary for me to determine this issue at this stage.

The items sought in this proceedings

24. The defendant wants to “inspect and take copies, all the documents relating to the counsel fees in another proceedings, including but not limited to, correspondences exchanged between the plaintiff and Wilson Chan [Deputy Judge Chan], the fee notes, revised fees notes, subsequent payments including bank cheques and statements, receipts and any final agreements on the counsel fees”

25. Both parties concede that the relevant law can be found in Order 24, rule 7 and rule 8 of the Rules of the High Court.  Rule 7 reads :

“(1)    Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

(2)     An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3)     An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.”

and rule 8 reads :

“(1)    On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

(2)     No order for the disclosure of documents shall be made under section 41 or 42 of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

26. The law is explained in Berkeley Administration v McCelland [1990] FSR 381.  It was held that :

1.       There is no jurisdiction to make an order under RSC, O. 24, r. 7, for the production of documents unless

a.       There is sufficient evidence that the document exist which the other party has not disclosed;

b.       The document or documents relate to matters in issue in the action;

c.       There is sufficient evidence that the document is in possession, custody or power of the other party;

2.       When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure;

3.       The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

27. It would appear that only “(b) the document or documents relate to the matters in issue in the action” is at issue.  Mr Enzo Chow, counsel for the plaintiff submitted that the items sought in this proceedings are irrelevant and protected by privilege.

Relevance

28. Are those items under the three categories relevant to the defendant’s counterclaim?  In the context of admissibility of evidence it has been held in R v Watson (1996) 108 CCC (3d) 310 that an evidence is relevant if it makes the existence of a fact more probable than without.  I have found that the defendant’s counterclaim is centered on the existence of a monetary dispute between the plaintiff and Mr Chan (ground 1 of professional negligence).  Therefore those items are certainly relevant in the sense that it makes the existence of the fact (the monetary dispute) more likely than without.

Privilege

29. Both parties referred to privileged information and client confidentiality, but these words are imprecise.  For legal professional privilege to apply, the plaintiff must establish that the two items fall under either legal advice privilege (“LAP”) and/or litigation privilege (“LP”).  I do not venture to repeat the law here, suffice it for me to say that LAP requires the communication to be related to the giving of “legal advice” (Three Rivers District Council v Bank of England (No. 6) [2005] 1 AC 610) and LP requires the document to be prepared with litigation as its primary purpose (Waugh v British Railways Board [1980] AC 521).

30. I am satisfied that neither LAP or LP can be attached to these items sought in these proceedings.  These items are purely evidence of a commercial transaction which took place after the litigation of both Mr Chan and the plaintiff’s lay clients.  The legal advice had already been given and the litigation had ended by the time these items were created.  There is a chance that the counsel fee notes and correspondences may contain the strategies employed by counsel and the revelation of these strategies may be disadvantageous to the client.  However, this issue can be resolved by the court’s undertaking to screen the documents for any privileged information before discovery is made.  If a document contains both privileged information and the content of the alleged monetary dispute, the court will only order the disclosure of the part that relates to the monetary dispute.

31. Mr Chow for the plaintiff submitted that the cases International Business Machines Corp. and another v Phoenix International (Computers) Ltd [1995] 1 All ER 413 (“the IBM case”) and Chant v Brown (1852) 9 Hare 790 establish that solicitors’ bills are privileged.  However, in the IBM case, the plaintiff had already conceded that the legal bills were documents for which privilege could have been claimed (at p. 419 h to j), therefore that case is not instructive in showing whether all legal bills are privileged.

32. The head note in the case Chant v Brown may be responsible for Mr Chow’s submission that “Turner VC said that such bills are privileged on the ground that “an attorney’s bill of costs is, in truth, his history of the transaction in which he has been concerned”.  On page 790 it reads “but he [the clerk of a solicitor] cannot be received to depose further as to the contents of the bill of costs, or the subject to which it relates, for an attorney’s bill of costs is his history of the transaction”.  However the head note did not end here but instead go on to say, on the next page “and the attorney could not be himself permitted to give evidence of the transaction against his client, or against those claiming under his client” (my emphasis).  To understand the true ratio of the case, it is instructive to read the relevant part of the judgment itself, starting from page 793 :

“…  The document… is the bill of costs of Brown against Melton, with reference, amongst other things, to the appointment and the mortgage…  The evidence is tendered for the purpose of impeaching the title of Timewell, whose title is under the mortgage, and rests upon the appointment; and if Brown had been proposed to be examined as to the matters contained in the document I think his evidence could not have been received against the parties claiming under Timewell.  The appointment and the mortgage were one transaction, and Brown was solicitor of Timewell in the mortgage transaction… [the witness who prepared the document was the clerk of Brown]…  An attorney’s bill of costs is, in truth, his history of the transaction in which he has been concerned; and if he cannot be called to prove the facts I think his clerk cannot be called to prove the history of them.”  [emphasis supplied]

33. It should be clear that the true reason behind that decision was that the solicitor was himself prohibited from revealing the content in the bill.  Chant v Brown did not lay down a strict rule which prohibited the production of all legal costs notes.  The learned Vice-Chancellor first investigated the purpose behind the witness’ deposition, which referred to the document of legal costs and then moved on to consider whether the solicitor himself would be allowed to reveal the content in the document.  In the present case I have already held that the purpose for discovering the items in the two categories was to establish the existenceand extent of a monetary dispute.  The figures in the two categories are highly relevant to prove such an existence.  Mr Chan and the plaintiff are allowed to disclose these figures as they are merely numbers arising from a commercial transaction.  The fact that the commercial transaction happens to relate to legal services is immaterial, for I have held that LAP and LP do not attach to them.

Conclusion

34. I will allow the appeal and order the plaintiff to make the discovery as sought by the defendant.  However, if in respect of any of the documents the plaintiff still seeks to claim privilege, they should supply the same to me in a sealed envelope and with their reasons thereof in writing to be included in the same envelope and I shall consider them further on ex parte basis.

35. There shall be an order nisi that the defendant shall have her costs of her application here and in the Court below.

HCA4594/2002

香港特別行政區

高等法院

原訟法庭

民事訴訟2002年第4594號

主審法官：高等法院原訟法庭法官林文瀚

判案書

1.  今日嘅上訴係本案嘅被告人翁美春小姐，就何聆案官喺2003年7月8日就訟費方面作出嘅一個頒令提出上訴。較早前，本席曾經喺翁小姐缺席嘅情況下撤銷上訴，但係及後經翁小姐解釋缺席因由後，本席喺原告人方面冇反對嘅情況底下，批准呢個聆訊重新展開。因此，今日係重新就呢個上訴作出聆訊。

2.  何聆案官嘅訟費命令係針對原告人嘅一項申請而作出，原告人嘅申請係喺2003年4月22日以傳票要求法庭頒令，根據第18號命令第19條，包括有關被告人嘅反申索係不能披露合理嘅訴訟因由，以及第18號第19條裡面嘅其他理據，要求剔除被告人方面嘅反申索。

3.  有關被告人嘅反申索喺當其時只係得一段，內容如下：

“In breach of the plaintiff’s duty, as solicitors for the defendant in the District Court Action No. 15756 of 2000, the plaintiff failed to exercise due care or diligence in the conduct of the action.  As a result the defendant has suffered losses and/or damages.  The defendants hold and/or claim the plaintiff liable on a full indemnity basis for all her losses and damages.”

4.  喺發出有關傳票之前，即係喺2003年4月22號之前，原告嘅律師樓喺2003年4月3號曾經寫信畀被告人，內容如下：

“We refer to your defence and counterclaim dated 17 February 2003.  We note that you have not pleaded in your counterclaim any material facts on which you rely.  In the circumstances your counterclaim discloses no reasonable cause of action.  We hereby give you notice that unless you should, before 11 April 2003, amend your counterclaim by pleading all material facts on which you rely, we will apply for a strike-out of your counterclaim, pursuant to Order 18, rule 19 of the Rules of High Court, without further notice.”

5.  被告人方面嘅回應係喺2003年4月11日嘅信件，內容如下：

“I refer to your letter dated 4 April 2003, requesting further particulars of my counterclaim.  As I am still waiting for your reply to my request for further and better particulars of your statement of claim, I shall furnish further particulars at the same time when you provide me your reply.”

6.  原告認為被告人方面呢個答覆唔滿意，所以就發出有關嘅傳票，並且準備一個有關嘅陳詞大綱。根據雙方嘅來往信件顯示，喺2003年4月30日曾經有一個聆訊，有關嘅性質似乎係一個call over嘅聆訊。喺當其時，原告將有關支持佢哋呢個剔除申請嘅陳詞大綱交咗畀被告人。及後，被告人方面同意修改佢嘅答辯書，加入相關嘅詳情，所以聆案官不就反申索書作出剔除，但聆案官頒令被告人方面要負責原告人方面嘅訟費，並且根據第62號命令第9條嘅權力，將訟費訂於港幣12,000元，今日嘅上訴就係針對聆案官呢一個訟費方面嘅命令。

7.  要考慮訟費方面嘅命令是否妥當或者恰當，本席認為應該考慮就呢項申請雙方有關嘅行為。喺今日嘅聆訊裡面，代表被告人嘅鄭律師指稱，呢個剔除申請就呢個反申索方面，其實係應該可以根據第18號命令第19條第1(a)款，即以有關嘅狀紙不能披露任何合理嘅訴訟因由為基礎嚟到剔除。本席不同意呢個論點，本席認為被告人喺原本嘅反申索書裡面嘅第六段已經披露咗一個合理嘅訴訟因由。雖然被告人方面事實上並沒有披露詳細嘅情況，但係一啲骨幹嘅事實經已敘述，被告人方面反申索原告人嘅根據係基於下列幾點：

第一，原告人曾經係作為被告人嘅代表律師，喺區域法院案件2000年15756宗處理被告人嘅案件；

第二，喺處理該案件嘅過程中，原告人並沒有盡佢嘅律師方面應有嘅責任；

第三，因為原告人呢一方面嘅違反佢律師應有嘅責任，引致被告人蒙受損失。

8.  呢啲都係將一啲事實嘅根據提咗出嚟，而好明顯地，呢個係可以構成一個合理嘅訴訟因由。所以，本席不同意鄭律師嘅陳詞話喺第六段裡面，被告人嘅反申索並沒有提出一啲事實嘅根據。所以，如果呢個申請係根據第18號命令第19條第1(a)款考慮，係完全不可能成功。

9.  喺呢一方面，翁小姐引用Chun Lee Engineering v. Aoki Corporation，Civil Appeal 71/1991 31 December 1991。在該案中，上訴庭亦都同意同樣嘅處理方式同埋分析，詳情可以睇有關判詞嘅第15頁，當上訴庭同意原審法官喺處理剔除申請就沒有披露合理因由呢一個理據方面嘅考慮。引用另外一件案例，就係Wharf Properties v. Eric Cumming Associate呢件案例。上訴庭喺Chun Lee Engineering一案裡面同意原審法官嘅分析，認為喺一啲同本案類似嘅情況底下，有關嘅狀紙係唔可以因為沒有披露合理訴訟因由為基礎嚟到去剔除，但係呢個唔代表有關剔除申請喺第18號命令第19條第1款嘅其他理據底下不能成功。

10.  喺Chun Lee Engineering一案裡面，原審法官亦都係要考慮一個冇充分詳情披露喺狀紙裡面嘅反申索。而喺該案裡面，原審法官拒絕剔除有關嘅反申索，雖然原審法官認為嗰個狀紙係冇按照法庭呢個程序裡面嘅要求，將有關嘅詳情係披露出嚟。

11.  原審法官喺Chun Lee Engineering一案裡面拒絕剔除有關反申索嘅理據，係紀錄喺上訴庭嘅判詞第15至到第16頁。喺該案裡面，原審法官認為雖然喺該案裡面嘅反申索係缺乏有關嘅詳情，而有關詳情係需要嘅，因為如果冇嗰啲詳細嘅陳述，係會引致有關嘅狀書係對訴訟嘅另一方構成一個尷尬或者係濫用司法程序嘅情況。但係原審法官認為法庭不應該行使酌情權剔除有關嘅反申索，佢嘅理由主要係基於第一，喺嗰件案件裡面有關嘅原告人並沒有提出要求被告人披露更詳盡資料：

“I would be loathe to strike out a claim which can be further particularised if necessary.  I certainly see Mr Lewis’s approach, because he made the point that the defendants have said in terms that they cannot give particulars prior to discovery, but in my judgment it is not enough for the plaintiff to refuse to ask for particulars, refuse to try and pin the defendants down and then come along and say that this ought to be struck out as being embarrassing or an abuse of process due to his lack of particularity.  As the counterclaim stands, at the moment it is embarrassing and is an abuse of the process.”

12.  跟住原審法官有以下的說法：

“If the defendants had failed or refused to supply these particulars, I would have been inclined to strike out the counterclaim.  I do not propose to strike out the counterclaim without first giving the defendants an opportunity to amend by dealing with the matters to which I have adverted.”

13.  就喺該案嘅原訴人係咪應該一定要係要求呢個詳細嘅資料，然之後先做一個剔除嘅申請，喺該案嘅原審法官有咁樣嘅講法：

“Mr Barlow submitted that a request for particulars is what ought to have happened before the strike-out summons was taken out.  The fact remains that the counterclaim was an abuse of process, being totally unparticularised when such information must have been at hand and was being used to attempt to defeat the claim for summary judgment.  Parties have now decided to deal with the matter by way of further and better particulars.  Taking all these matters into account and in the exercise of my discretion, it seems to me that justice or the situation requires for there to be no order as to costs as to this part of the summons.”

14.  綜合嚟講，本席認為喺該案裡面，原審法官並沒有硬性規定就詳情不足嘅狀紙，對方必須經過要求詳情嘅程序，如果呢個程序係不能達到目的，然後先可以作出一個剔除嘅申請。

15.  但係另一方面，法庭係可以考慮呢啲事宜嚟去決定有關訟費方面嘅頒令。本席特別留意到喺該案當中，原審法官頒令雙方各自負責自己嘅訟費。喺呢一方面，呢個原則其實喺上訴庭嘅判詞裡面亦都反映出嚟。喺上訴嘅階段，有關嘅上訴只係針對訟費方面嘅頒令，上訴庭係維持原審法官就訟費方面嘅判決，呢個係可以喺上訴庭嘅判詞第17頁裡面睇到。但係喺維持訟費方面嘅判決同時，上訴庭亦都特別有明確指出，喺該案嘅案情底下，上訴庭認為該案嘅原告人係有權做呢個剔除嘅申請，呢個可以睇番上訴庭第17至到18頁裡面嘅評語。特別喺第18頁，上訴庭說明，雖然喺該案裡面嘅上訴並沒有就法官不作剔除呢個頒令作任何嘅上訴，而有關嘅上訴只是局限喺呢個訴訟費方面。但係上訴庭亦特別聲明，係喺維持原審法官就訟費方面嘅判決嘅時候，上訴庭嘅立場如下：

“We do not intend to appear to be accepting that it would not have been open to the judge to strike out the counterclaim as a thoroughly embarrassing pleading, deliberately served as such, which was an abuse of the process which the defendant intended to maintain until completion of discovery by impliedly refusing to give particulars before that event.  On this basis, it seemed to us that the plaintiff was not to be thwarted for applying to strike out without first applying for further and better particulars.  We do not consider that said in the Wharf case militates against this proposition.  In that case, Lord Oliver observed at page 166 F:

‘It is for the plaintiff in an action to formulate its claim in an intelligible form and it does not lie in its mouth to assert that it is impossible for him to formulate it and that it should therefore be allowed to continue unspecified in the hope that when it comes to trial he maybe able to reconstitute his case and make good what he then feels able to plead and substantiate.’

In the present case, the defendant was deliberately arrogating to himself the right to rely on an embarrassing pleading until discovery had been completed, not with the genuine intention of obtaining undisclosed material not in its possession, but to suit its own convenience or that of its lawyers.  This will not do and unless and until the defendant manifests willingness to furnish particulars before completion of discovery, it was open to the judge to strike out the counterclaim.”

16.  所以本席認為有關原則如下：

第一，雖然另一方並未有提出呢個further and better particulars方面嘅申請。法庭絕對有權就一個冇足夠詳情嘅狀紙，根據第18號命令第19條第1款裡面嘅理據，以有關狀紙構成尷尬為理由，或以濫用司法程序為理由，去剔除有關嘅狀紙。

第二，喺考慮應唔應該行使有關嘅酌情權嘅時候，法庭會考慮傳檔尷尬嘅狀紙嗰一方，係咪有特別嘅企圖或者別有用心，例如好似喺Chun Lee Engineering一案裡面，有關嘅被告人就係想利用一個尷尬嘅狀紙或者尷尬及含糊不清嘅反申索，去阻止或阻礙原告人方面要求簡易程序判決嘅申請。

第三，法庭亦會考慮傳檔尷尬狀紙一方是否有意圖或者意願去提供有關嘅詳細資料。

第四，喺決定呢個訟費問題嘅時候，法庭亦都可以考慮雙方喺上述方面嘅立場及在訴訟過程裡面嘅行為。

17.  睇番本案嘅案情，原本嘅反申索雖然正如本席較早前分析，裡面已經提出一啲事實嘅根據，但係本席認為有關嘅事實根據並未列出所有相關嘅關鍵事實，所以表面上嚟睇，被告人方面嘅狀紙係有構成尷尬嘅情況。例如雖然喺第六段裡面，被告人提出原告人係並冇盡到佢哋律師方面應有嘅責任，或者係冇喺處理區域法院案件裡面，達到一個合理律師嘅水準去處理有關嘅案件，但係被告人並未有喺呢個狀紙裡面披露被告人聲稱原告人係喺邊一方面係不足。所以表面上嚟睇，有關嘅反申索係有一個尷尬嘅情況。但係另一方面，呢件案有其獨特嘅地方：

第一，原告人事實上係好清楚知道被告人方面投訴佢哋嘅主要因由及她喺反申索裡面聲稱話原告人疏忽嘅地方係指甚麼。原告人喺另外一次聆案官嘅聆訊當中，曾經係透過佢哋嘅律師向鄺聆案官承認，佢哋大致上係知道對方話佢哋疏忽嘅地方係乜嘢。呢一個亦都唔出奇，因為被告人曾就有關嘅區域案件嘅處理向律師會作出投訴，而裡面亦都有列出被告人認為原告人失職嘅地方。而喺今日嘅聆訊裡面，代表原告人嘅鄭律師亦都向法庭表示，佢哋大致上係知道被告人方面反申索嘅理據。好明顯，睇番有關嘅資料，被告人嘅反申索唔係一個無理嘅索償，係有具體嘅事實支持。當然至於索償是否成功係一個尚待爭辯嘅事宜，本席在呢個階段不可以作出一啲具體嘅評論。但係好明顯地，有關嘅反申索唔係一項無理纏擾嘅訴訟。

第二點，喺2003年4月11日嘅信件裡面，被告人已經向原告人表示，佢係願意畀有關嘅詳細資料，雖然佢訂嘅時間可能唔係一個合適嘅時間，因為佢將佢畀呢個詳情嘅資料係串連原告人畀佢哋嘅資料嘅時間，而被告人嘅責任係去就佢嘅狀紙嘅準備係應該符合有關法律程序嘅要求，所以佢唔應該用呢個理由去將佢畀詳情嘅時間去拖延。當然，如果佢有充分嘅理據，覺得佢係需要較多時間去準備佢嘅詳情，佢可以向法庭申請，法庭亦都會考慮嗰個理據而決定畀唔畀呢個伸延個時限畀佢。但係無論如何，2003年4月11日嘅信件係反映咗被告人方面係願意畀更詳盡嘅資料。

18.  當然，本上訴只是針對一個訟費方面嘅頒令，而雖然呢個係聆案官嘅訟費頒令，但係法庭亦都有案例講過喺呢一方面嘅上訴，法庭必須認為聆案官嘅頒令係違反一啲既定原則，或者係冇考慮到一啲應該考慮嘅事宜，或者係明顯錯誤嘅情況，或者考慮咗一啲不應考慮嘅事宜，上訴庭才有權推翻原本嘅頒令。有一個困難嘅地方，就係喺本席面前，本席並沒有何聆案官作出有關訟費頒令嘅理由。但係根據鄭律師向本席嘅陳詞，他聲稱何聆案官認為被告人嘅反申索係並冇披露任何合理嘅訴訟因由。如果何聆案官曾經係有咁樣嘅結論，本席就認為何聆案官係犯咗法律上原則性嘅錯誤，因為根據本席喺頭先嘅分析，本席認為雖然狀紙方面係有缺欠，但係並不屬於一個沒有披露合理訴訟因由嘅情況。當然，本席唔知道何聆案官係咪真係以此理由作出訟費之頒令，但鄭律師指稱何聆案官曾經畀過一個咁嘅理由。

19.  無論如何，綜合本席上文提出嘅有關因素，考慮到雙方喺呢個剔除反申索嘅申請方面嘅行為同埋所採納嘅立場，本席認為喺咁嘅情況底下，頒令被告人方面需要負責原告人喺呢項申請嘅訟費，係有明顯錯誤嘅地方。在考慮一切相關因素後，本席認為一個合理嘅決定，唔應該要求被告人支付有關嘅訟費，所以本席應該係重新再考慮點樣先係一個合理或者合適嘅訟費命令。喺考慮晒有關嘅事宜之後，本席認為一個合適同埋對雙方都公道嘅判決，就有關剔除申請呢一方面，應該係不作任何訟費嘅頒令，即係話雙方各自支付自己嘅訟費。

20.  喺呢一方面，本席冇忽視到翁小姐提出，佢話佢嗰一方其實係成功反對反申索之剔除。但本席認為始終嚟講，有關嘅問題都係源於佢喺佢嘅反申索裡面冇足夠列出有關嘅事實。當然，原告人方面所採取嘅反應亦都係有過份嘅地方，但係喺考慮到雙方嘅情況底下，本席認為公平亦都公道嘅訟費頒令，係應該雙方各自負責自己嘅訟費頒令，所以本席會撤銷何聆案官就訟費方面嘅頒令，取而代之係頒令雙方各自負責自己嘅訟費。

(法官與與訟雙方討論有關訟費事宜)

21.  本席考慮過雙方嘅陳詞之後，就呢個上訴本身嘅訟費，本席睇唔到有咩嘢理據去唔行使酌情權，跟一般嘅做法，即係成功嘅一方應該獲得有關嘅訟費，所以本席頒令原告人需要支付被告人喺呢個上訴裡面嘅訟費。而呢個係一個in any event嘅訟費頒令，簡單嚟講，即係話呢個唔係即時支付嘅頒令，要等案件完結之後，先至去訟費評核官嗰度評核。

HCA 4594/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4594 OF 2002

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D E C I S I O N

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Background

1. This is the Defendant's appeal against the orders made by Master Ho on 8 July 2003. The Plaintiff is a practising solicitor and the former solicitor of the Defendant representing her in District Court Action DCCJ No. 15756 of 2000. Following the Defendant's complaint of professional negligence in conducting the DCCJ No. 15756 of 2000 against the Plaintiff, the Plaintiff terminated the retainer and issued a final fee note demanding the Defendant a fee of $614,805 on 30 October 2002. The Defendant requested the Plaintiff to send her the invoices and receipts in respect of items of disbursements. The Plaintiff did not respond and issued a writ of summons against the Defendant on 6 December 2002. On 26 March 2003, the Defendant took out a summons seeking an order for further and better particulars of the Plaintiff's fee note. After hearing the parties on 8 July 2003, Master Ho ordered the Plaintiff to give particulars in respect of Request 3 only and refused to order particulars in respect of the other twenty-five requests. He also ordered the Defendant to pay three-fourths of the costs of the application including the reserved costs, assessed at $5,000 to the Plaintiff within 14 days from the date hereof.

2. At the appeal, the Defendant said that the Plaintiff's answers in respect of Request 3 were sufficient to cover most of the particulars sought in her other twenty-five requests. She effectively abandoned her appeal against Master Ho's order refusing to order particulars in respect of the other twenty-five requests. Thus her appeal is essentially against the costs order. She submitted that the master erred (1) in awarding costs against her; (2) in adopting an hourly rate of $2,500 for the Plaintiff notwithstanding that the Plaintiff was a litigant in person; (3) in assessing the time spent in preparation and appearing at the hearing and (4) in ordering payment of the costs forthwith.

Whether the master erred in awarding costs against the Defendant

3. The Defendant was successful in connection with one only out of her twenty-six requests. The master considered that she was substantially unsuccessful and ordered her to pay three-fourths of the costs of the application. She submitted firstly that in effect she was substantially successful as the particulars ordered to be given to Request 3 as amended by Master Ho substantially answered most of her other requests. Secondly, that even if she was successful in one out of twenty-six requests, she was entitled to have costs of the application on the principle of Paul Y - ITC Construction Limited and Kin Shing Company Limited in HCA No. 2220 of 1998. I shall deal with the second limb of her argument first.

4. The Defendant relied on the following dicta of Sakhrani J in Paul Y - ITC Construction Limited and Kin Shing Company Limited as establishing the principle that a litigant is entitled to all the costs of an application even if she was successful in one only out of a number of requests:

"The Defendant did not succeed in all its request for particulars that it sought but it has succeeded in getting an order from the Master that the Plaintiff's Reply No. 3(1) was lacking in particulars. To obtain that order it was, of course, necessary for the Defendant to issue the summons. Right up to the stage of the hearing before the Master, the Plaintiff was also objecting, in principle, that the Plaintiff need not supply any further particulars to particulars as the particulars that had previously been provided was not a pleading. Although this point may not have been pursued before Master Poon, it was certainly pursued in correspondence and it was necessary for the Defendant to issue the summons for further and better particulars. To that extent, the Defendant has succeeded and I see no reason why the Defendant should not get its costs for that application."

It appears that in that case, there were two requests made in relation to the plaintiff's reply No. 2 and 3. The plaintiff was ordered to give particulars in relation to part of its reply No. 3 and was ordered to pay costs for the whole application. Even if those were the facts of that case, I do not think the above dicta as establishing any principle of law in support of the proposition suggested by the Defendant.

5. The master or the judge in hearing the appeal against the master's decision, for convenience I call them the "trial judge", were the persons in the best position to understand the nature and assess the overall merit of the application, based on which to exercise their discretion. By "overall merit", I mean the merit of the entire application and not just the part in which the applicant was successful. When a party is only partially successful, only the trial judge knows where the overall merit lies. There may be a number of scenarios. At the one extreme end, the successful party may have a meritorious request in respect of which he was successful but had a number of unmeritorious requests which he abandoned at the hearing or which were not actively pursued or which even if he did, did not take up much time. At the other end, the successful party may have succeeded in respect of one request which was conceded by his opponent but was unsuccessful in respect of a large number of other unmeritorious requests which he argued exhaustively and unreasonably and which took up almost the entire hearing. These are matters which are solely within the knowledge of the trial judge and which he should take into consideration in exercising his discretion. I do not think Sakhrani J's dictum was intended to apply equally to both scenarios. I would be surprised if it was.

6. As a general rule, a successful litigant, in the absence of special circumstances, has a reasonable expectation of obtaining an order for payment of his costs by the other party. The usual costs order is "costs shall follow the events", except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs: see Order 62 rule 3(2). This rule envisages an apportionment of the costs according to whether the party is successful. Where an application is made up of identifiable component parts, the above rule can apply to the various component parts separately. Indeed, the reverse of Sakhrani J's dictum must also apply to the part of the application in which the plaintiff successfully resisted the application to provide particulars in the following terms:

"To successfully resist to providing the particulars, it was, of course, necessary for the plaintiff in that case to attend court to resist the application. Right up to the stage of the hearing before the master, the defendant was insisting to be supplied the particulars and it was necessary for the plaintiff to put an end to that demand by attending court. To that extent, the plaintiff has succeeded and I see no reason why the plaintiff should not get its costs for having successfully resisted that part of the application."

7. It is not clear where between the two extremities I referred above lies the facts of Paul Y - ITC Construction Limited and Kin Shing Company Limited. It is obvious that the particulars relating to the plaintiff's reply No. 3(1) took up a substantial part of the application. It may well be that the rest of the application where the defendant was unsuccessful was very speedily disposed of by the master. Hence Sakhrani J awarded the defendant with costs of the entire application even though it was successful in respect of one part of a request only. I think the decision in that case could be justified on the basis of substantial or overall merit.

8. The Defendant also cited the case of Aktieselskabet Dansk Skibsfinansiering (body corporate) and Wheelock Marden & Company Limited and Others CACV 88/1992 in which, on appeal, the Court of Appeal ordered costs to the successful defendants requesting for particulars. There were 281 requests made, the majority of which were ordered after hearing argument or conceded. The plaintiff was successful in resisting a few only of the requests. No reason was given by the Court of Appeal as to why the costs were not apportioned. Probably, the costs order was justified on the basis of overall merit.

9. I do not think these cases as having established any principle of law that a party which is successful in respect of one of a number of requests must be awarded the costs of the entire application. Whether to award costs, the extent and quantum is always a matter of unfettered discretion for the trial judge. Section 52A of the High Court Ordinance gives the Court full power to determine by whom and to what extent the costs are to be paid. Depending on the facts of the individual case, the trial judge may take an overall view of the merit of the application and award the successful party the costs of the entire application on the basis of overall merits, or he may carry out a weighing exercise, determine to what extent a party is successful and unsuccessful, set off what he has failed against what he has succeeded and award costs on that basis. For my part, I would prefer the second approach so far as it is reasonably practicable to do so. That was what Master Ho did. I do not think he could be criticised for adopting that approach.

10. I now turn to the Defendant's other argument. There are 250 items in the fee note. Request 3 as drafted by the Defendant is as follows:

"For each and every single item of work done and service, state whether there were any written and/or oral agreements of an agreed fee and/or estimates."

Master Ho allowed the request and amended it as follows:

"For the alleged work done and services rendered by the Plaintiff for the Defendant, state whether there was any written and/or oral agreement as to payment of fees. If so please state:

(a) when the agreement was made;

(b) between whom it was made;

(c) gist of the agreement made;

(d) if the agreement is in writing, copy be produced."

11. The Defendant argued that Request 3 as amended by the master substantially covered most of her other requests, hence she was substantially successful in her application and should be awarded costs. I do not agree. What the master did was to re-write her request in a lawyerly manner. He replaced "for each and every single item of work done and service" (there were 250 items) by an overall description of "for the alleged work done and services rendered" and enlarged the particulars requested to include details as to time, identity of the persons making the agreement and the content of the agreement, including a request for a copy if made in writing. Her other requests, which were refused by the master, were about details of the work done, advice given, steps taken, breakdown and documents. These requests were, in my view, rightly refused. They are either irrelevant or related to evidence and not to facts pleaded in the statement of claim. Thus, the Defendant was successful in one out of her twenty-six requests. She was, as Master Ho said, substantially unsuccessful. On a strict mathematical basis, she was successful as to one- twenty-sixth and after setting off against what she was unsuccessful, she should be liable for twenty-four-twenty-sixths of the costs to the Plaintiff. Probably Master Ho assessed her as being successful in one-eighth and unsuccessful in seven-eighths and hence after setting off, he awarded three-fourths of the costs against her. The allowance given to her by the master was very generous. The master applied the correct principle in the exercise of his discretion. How he apportioned the costs is a matter solely within his province. He was in a better position to assess the time spent in respect of the request which she was successful and where the merit lied. I shall not upset his assessment.

Rate for solicitor appearing in person

12. At the hearing of the appeal, the Defendant raised this further ground of appeal that since the Plaintiff was representing himself, he was technically a litigant in person and the master was wrong in assessing costs at the hourly rate of $2,500 on the basis that the Plaintiff is a practising solicitor. Order 62 of the Rules of the High Court provides for separate rules of assessment of costs for a litigant in person and a legally represented litigant. In essence, rule 28A provides that a litigant in person may only recover costs at the rate of $200 an hour or where he has suffered any pecuniary loss in doing any work to which the costs relate, such sum not exceeded two-thirds of the sum which in the opinion of the taxing master would have been allowed in respect of that item of work if the litigant had been represented by a solicitor. However, rule 28A(6) expressly provides that for the purpose of this rule, a litigant in person does not include a litigant who is a practising solicitor.

13. The Defendant submitted that a solicitor conducting litigation on his own behalf was carrying out work for himself and not for his client and his costs should not be assessed using the rate applicable to solicitors. I can see some force in that argument. The taxed costs of a solicitor were the costs which the successful party paid its solicitors and invariably included an element of profit for the solicitors. A solicitor litigating in person should not be given the benefit of that profit which he would earn as if he were representing his client. He is in fact litigating in person and should be subject to the same rule applicable to all litigants in person. Even assuming that he suffered pecuniary loss, the costs he may recover should not exceed the two-thirds ceiling applicable to all other litigants in person. Attractive and appealing as those considerations may appear, I think I am bound by the clear and unequivocal language of rule 28A. Rule 28A applies to assessment of costs of a litigant in person and sub-rule (6) clearly takes a practising solicitor out of the application of that rule. The strict application of the other rules in Order 62 must result in the Plaintiff's costs having to be assessed in accordance with the other provisions of the order, i.e. as if he had been represented by a solicitor and indeed he was, albeit by himself. Accordingly, the hourly rate of $2,500 adopted by the master was correct.

Whether assessment of time spent excessive

14. The Defendant said that it was excessive to allow the Plaintiff two and half hours for attending a three-minute hearing on 4 April 2003, one hour for the hearing on 8 July 2003 and in preparing a six paragraph skeleton submission of half a page for that hearing. The master having heard the application and read the bundle of documents was in the best position to make that assessment. Having done so myself, I would not disagree with the master's assessment.

Whether costs to be paid forthwith

15. The Defendant submitted that she should not be ordered to pay the costs forthwith and referred to the following dicta of mine in Asia-Pac Infrastructure Development Limited and Ing Yim Leung Alexander and Others in HCA No. 16778 of 1999:

"Costs are usually taxed and paid after the conclusion of the trial. The obvious reasons are that the costs in interlocutory proceedings are too small to make taxation worthwhile. In addition, there is also the possibility of set off in other interlocutory proceedings. Other considerations are whether it is unfair to keep the successful party out of pocket for his costs, especially if he is not a person of means and the costs are substantial and also the possibility that there may be no trial for one reason or another. Of course, where a litigant has conducted his case in bad faith and dishonestly, the court should show disapproval by ordering costs to be paid forthwith."

This part of the appeal was not vigorously contested. The Defendant was appearing in person. She might have taken longer to present her case and raised irrelevant arguments. Most of her requests were irrelevant and were refused. She should be penalised in costs. But there is nothing to suggest that she conducted her case in bad faith, vexatiously and dishonestly. There is nothing to suggest that she will not pay the costs. She was only ignorant of the rules and procedures. I do not think the circumstances were such as to justify an order for payment of costs forthwith. To this extent her appeal must be allowed.

Costs

16. The Defendant only succeeded in reversing the master's order as to payment of costs forthwith. She was substantially unsuccessful in this appeal. I consider she should be liable for 80% of the costs of this application. To save the parties' costs, I would make a global assessment of the costs in lieu of taxation. In essence, the Plaintiff was repeating the arguments before the master. The hearing took two and half hours. I allow the Plaintiff's costs for three hours for preparing for and attending the hearing and assess the costs at $6,000, i.e. $2,500 x 3 x 80%.

Conclusion

17. For the above reasons, the appeal is allowed to the extent that the master's order of payment of costs be set aside and replaced by an order that such costs be paid in any event. I also order the Defendant to pay the Plaintiff's costs of this appeal assessed at $6,000 in any event.

Representation:

Mr Edmund Li, of Messrs Lee Chan Cheng, for the Plaintiff

Defendant, appearing, in person