Soemarto Sulistio and Another v. Stukan, Yetty Fang and Others

HCAP 10/2018

[2020] HKCFI 292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2018

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BETWEEN

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J U D G M E N T

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Introduction

1.This is the hearing of the plaintiffs’ appeal against the order of Master Hui made on 23 August 2019 ordering that the plaintiffs’ statement of claim be struck out and be dismissed with costs on indemnity basis.

2.The 1^st plaintiff is the father of the 2^nd plaintiff and the defendants.  The 2^nd plaintiff and the defendants are siblings.  Their mother (“the Deceased”) passed away on 16 April 2017.  By a will dated 31 March 2016, the Deceased bequeathed all her estate to the defendants to the exclusion of the plaintiffs and appointed the 1^st defendant as executor under the will.  Grant of probate was made to the 1^st defendant.

3.On, 27 February 2018, the plaintiffs issued a writ against the defendants seeking, inter alia, a pronouncement against the validity of the will; an order that the probate granted to the 1^st defendant be revoked and; and an order that letters of administration of the estate of the Deceased be granted to the 1^st plaintiff.  However, they did not file and serve the statement of claim.  It was only until 2 August 2018 and as a result of an unless order made by Master Liu on 5 July 2018 (the “first unless order”) that they filed the statement of claim.

4.The defendants did not consider the statement of claim pleaded with sufficient particulars.  They took out a summons requesting further and better particulars on 28 December 2018, returnable on 3 January 2019.  On 2 January 2019, upon the parties’ joint application, Master Hui made an order by consent that the plaintiffs do provide the particulars within 28 days. That order was not complied with.  On 14 February 2019, upon the parties’ joint application, Master Hui made an unless order that the plaintiffs do provide the particulars by 4:00 pm on 25 February 2019, failing which their statement of claim will be struck out and their action dismissed (the “second unless order”).  Throughout this period of time, the plaintiffs never disputed that the requests were unreasonable.  On 25 February 2019, the plaintiffs provided some particulars in purported compliance of the second unless order.

5.The defendants did not consider the particulars adequate.  On 23 April 2019, they took out a summons seeking to strike out the plaintiffs’ statement of claim on the following grounds (the “striking out summons”):

(1)  non-compliance with the second unless order; disclosing no reasonable cause of action;

(2)  being frivolous, vexatious and/or scandalous;

(3)  that it may prejudice, embarrass or delay the fair trial of the action; and

(4)  being an abuse of process of the court.

Alternatively, they sought an order that the plaintiffs do give full, substantive and complete particulars within seven days with the sanction of an unless order.  On 6 May 2019, by consent the summons was adjourned for argument before Master Hui after filing one round of affirmations. 

6.What then followed were the plaintiffs’ repeated requests for the court’s indulgence in allowing them more time to file their affirmation in opposition to the defendants’ striking out summons.  They did not ask for more time to enable them to provide further and better particulars.  On 6 June 2019, upon the plaintiffs’ application, they were given an extension of time until 24 June 2019 to file their affirmation in opposition to the defendants’ striking out summons.  The plaintiffs were unable to comply on the due date and asked for more time.  On 18 July 2019, Master Hui allowed them until 4:00 pm on 22 July 2019 to file their affirmation, failing which they will be debarred from doing so.  Effectively, the plaintiffs had a further four weeks to file their affirmation in opposition. 

7.On 22 July 2019, the plaintiffs’ solicitor Tai Sze Wa (“Tai” of Messrs SW Tai & Co (“Tai&Co”) filed an affirmation.  He asserted that he was making the affirmation on behalf of the plaintiffs as the 1^st plaintiff was in hospital and the 2^nd plaintiff had been resting in Beijing and Singapore for several weeks suffering from migraine.  He submitted that the issue raised by the striking out summons is one for legal submission instead of factual issue and asserted for the first time that the particulars had been adequately provided.  However, he also suggested that if the court was minded to give the plaintiffs another opportunity to file particulars the court should compel the defendants to make their request more succinct.

8.On 23 August 2019, after hearing the parties’ substantive arguments, Master Hui ordered, inter alia, that the plaintiffs’ statement of claim be struck out and their claim dismissed with costs to the defendants to be assessed on indemnity basis with certificate for counsel.  In addition, Master Hui made the unusual order that Tai&Co do file and serve an affidavit within 28 days to show cause as to why wasted costs order should not be made against them.

9.On 5 September 2019, the plaintiffs’ solicitors filed a notice of appeal against Master Hui’s decision on behalf of the plaintiffs, seeking:

(1)  that the order of Master Hui made on 23 August 2019 be set aside;

(2)  that the plaintiffs do file and serve full, substantive and complete answers to the defendants’ request for further and better particulars within 28 days;

(3)  that there be no order as to costs for the hearing before Master Hui; and

(4)  the costs of this appeal.

The appeal was scheduled to be heard before me on 15 January 2020.  It is worth noting that even in their notice of appeal, the plaintiffs are not asserting that the requests made by the defendants are unreasonable or that the particulars they provided are adequate.  They even asked for more time to comply with the request. 

10.On 18 September 2019, upon the joint application of the parties, Master Hui made an order by consent deferring the time for fixing a date for summary assessment of costs to 28 days after final disposal of the plaintiffs’ appeal. 

11.On 20 September 2019, Tai filed the 2^nd affirmation of Tai Sze Wa (“Tai’s second affirmation”) seeking leave to defer filing of his affirmation to show cause pursuant to the order of Master Hui pending the plaintiffs’ appeal or for an extension of time of 21 days to do so.  In support of his request for extension of time, Tai asserted that he has “just shortly before making this Affirmation finishing discussion with [the 2^nd plaintiff] who is out of town to obtain some reasonable points for [his] Affirmation which need more time to gather.”

12.On 12 December 2019, the 2^nd plaintiff wrote to Master Hui complaining that he had strong reasons to believe that Tai acted improperly and irresponsibly in handling his litigation.  He specifically alleged that he was never consulted in the discussion in September 2019 mentioned in Tai’s second affirmation and that he was not away from Hong Kong during that period when the alleged discussion took place.  He also sought to adjourn the hearing of the appeal for six months from the scheduled date of hearing.

13.On 5 January 2020, the 2^nd plaintiff wrote another letter to this court repeating the contents of his letter of 12 December 2020 and renewing his request to have the hearing of the appeal adjourned.  By a letter dated 6 January 2020, my clerk informed the 2^nd plaintiff that his request for adjournment was refused.  He was informed that the grounds he advanced in support of the application are all related to alleged misconduct by his solicitors which has no bearing on the decision of Master Hui.  He was reminded that as Tai&Co are the solicitors on record acting for the plaintiffs, his application has not been properly made and must be dismissed and the hearing will be conducted as scheduled.  He was also advised that if he wished to discharge Tai&Co, he should promptly instruct a new firm of solicitors or to file a notice to act in person and to attend and act by himself at the appeal hearing.

The law applicable to appeal to a judge against a master’s decision

14.The following legal principles are applicable to appeals to a judge in chambers against the decision of a master[1]:

(1)  Such an appeal is dealt with by way of an actual rehearing of the application which led to the order under appeal.  The judge treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right and obligation to open the appeal.

(2)  The court is not bound by the decision of the master but can give the master’s decision the weight it deserves and can adopt the master’s reasoning in the court’s own judgment without setting out the reasoning itself.

(3)  Order 58, rule 1(5) of the Rules of the High Court provides that no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special ground.  The phrase “special grounds” is the same expression as in Order 59, rule 10(2) and requires the conditions laid down in Ladd v Marshall[2] to be satisfied.

The law applicable to unless orders

15.The legal principles applicable to non-compliance of a court order are set out in Order 2. Basically a court order is meant to be obeyed.  In the case of non-compliance of an unless order, the sanction stipulated in the order is to be applied automatically in the event of breach, unless the party in default applies to the court for and obtains relief from the sanction within 14 days of the failure: Order 2, rule 4.  The effect of Order 2, rule 4 and rule 5 have been summarized by the Court of Appeal in Daimler AG v Leiduck, Herbert HeinZ Horst and Another as follows[3]:

“… it is not for the party seeking to take advantage of a default to apply to the court in order to render a sanction for that default effective. Instead, the sanction takes effect immediately and it is for the party in default to apply for relief from the sanction. Only if there is an application for relief from the sanction is the court required to consider whether, in all the circumstances, it is just to make an order granting relief from the consequences that would otherwise follow.”

16.The initial burden is on the applicant to prove the unless order and its breach by the party in default.  Once that is proved, the burden of proving that the unless order should not be invoked is on the party in default.  Where the breach is not disputed, the party in default would usually have applied for relief from sanction within 14 days after the breach has occurred.  Where the breach is disputed, as in the present case, such application might not have been made.  But, not unusually, as an act of prudence and depending on the seriousness of the consequence of the sanction and the justice required by the circumstances, the court may invite the party in default to show cause why the sanction should not be invoked.  If appropriate and necessary, the court will give direction and grant extension of time for making an application for relief under Order 2, rule 4. 

17.Upon an application for relief from sanction properly made pursuant to Order 2, rule 4 and supported by affidavit evidence as required by rule 5, the court will decide whether in all the circumstances it is just to relieve the party in default from the consequence of its breach.  Order 2, rule 5(1) sets out some of the circumstances which the court shall consider on such an application.  The list is not exhaustive.  These circumstances include:

(a)  the interests of the administration of justice;

(b)  whether the application for relief has been made promptly;

(c)  whether the failure to comply was intentional;

(d)  whether there is a good explanation for the failure to comply;

(e)  the extent to which the party in default has complied with other rules and court orders;

(f)  whether the failure to comply was caused by the party in default or his legal representative;

(g)  in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h)  whether the trial date or the likely trial date can still be met if relief is granted;

(i)  the effect which the failure to comply had on each party; and

(j)  the effect which the granting of relief would have on each party.

18.While the sanction is automatic, whether to invoke the sanction is, nevertheless, an exercise of the discretion of the court.  The court considers the reasons for the default, explanation for the delay in applying for relief, whether there was a history of default, whether the sanction is out of line with the consequence of the breach and whether the breach was intentional and contumelious: see Top One International (China) Property Group Co Ltd v Top One Property Group Ltd[4].  It is essentially a balancing exercise.  The question is proportionality. Usually the court would have considered the appropriateness of the sanction at the time of making of the unless order.  However, circumstances may change.  The extent of the breach as it turned out may not be as serious as anticipated and there may be mitigating circumstances.  Worth noting are that Order 2, rule 5(f) expressly distinguishes between default caused by the litigant and that caused by his legal representative; and Order 2, rule 5(g) provides that one of the circumstances to be considered is whether the party in default acting in person was able to comply with the unless order without legal assistance.  The court is inclined to grant relief to a litigant if he has no deliberate feet dragging and the default was caused by his legal representative. 

19.In considering whether not to invoke the sanction of an unless order, the court may also take into account the philosophy underlying the court’s approach in dealing with applications for extension as stated by Ward LJ in Hytec Ltd v Coventry City Council[5]:

“(1) An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order. (2) Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed. (3) This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure. (4) It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred) flouts the order then he can expect no mercy. (5) A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order. (6) The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice. (7) The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.”

20.Where an application for relief has not been made or not been made within time, the court will nevertheless adopt a similar approach in the exercise of its discretion in whether to grant leave to make the application out of time or to invite the party in default to do so.  The party in default has to show merits and that interest of justice would require that leave be granted.   In line with Order 2, rule 5(f) and (g), the court would give special regard to such an application where the breach was caused by legal team of the party in default or that the party in default was acting in person. 

21.In Silver Universe Investments Ltd v China Times Securities Ltd[6] Deputy High Court Judge Keith Yeung SC (as he then was) set out the following general principles in determining whether there was a breach of an unless order:

(1)  The starting point is to determine what is the default event.  The identification of the default event is one of construction of the unless order concerned.

(2)  In most cases, and in particular in cases where an unless order is made to secure compliance of the Rules of the High Court by the undertaking of a particular step, the default event is the failure to undertake that step rather than, if that step has in fact been undertaken within the stipulated time, the qualitative adequacy of that step.  The question is ultimately a question of construction of the order.

(3)  The general position is that the unless order should be construed as a time order, and the issue will therefore turn upon whether the deadline has been met, and not on the adequacy of compliance, unless it can be said that the compliance is not made in good faith or is illusory.

(4)  However, clear wording (in light of the syntax, context and background in which those words are used) and/or the history of the proceedings leading to the issue of the unless order concerned may point to a contrary interpretation. 

22.The issues raised by this appeal are:

(1)  whether the second unless order was merely a time order or a time order which required substantive compliance;

(2)  if it was the latter, whether the requests are reasonably necessary;

(3)  whether there was failure on the part of the plaintiffs in providing adequate particulars to requests which are reasonably necessary, constituting a breach of the second unless order;

(4)  whether the plaintiffs have discharged the burden of showing that they should be relieved from the sanction under the second unless order.

Legal representation of the 1^st and 2^nd plaintiffs

23.At the hearing of the appeal, neither the plaintiffs’ solicitors nor their counsel appeared.  The 2^nd plaintiff attended the hearing but not the 1^st plaintiff who, according to the 2^nd plaintiff, was hospitalised in the intensive care unit of a hospital.  The 2^nd plaintiff said that he was surprised that his solicitors and counsel did not appear and could not understand why.  He has not contacted his solicitors.  He has not instructed a new legal team or filed a notice to act in person.

24.The 2^nd plaintiff again requested an adjournment.  As Tai&Co were the solicitors on record for the plaintiffs, the 2^nd plaintiff was not in any position to make an application for adjournment.  As the 2^nd plaintiff indicated that he wished to be represented by a new legal team, I do not find it necessary to require Tai&Co to appear as solicitors on record for the plaintiffs. The 2^nd plaintiff’s request for adjournment was heard on a de bene esse basis to enable this court to decide on how to progress with the appeal. 

25.The 2^nd plaintiff produced a letter written by his doctor.  His doctor opined that the 2^nd plaintiff has been suffering from bipolar condition and gave a brief account of his psychiatric history.  She last saw the 2^nd plaintiff in September 2019 and then in January 2020.  She confirmed that the 2^nd plaintiff was fit to instruct counsel to represent him in his litigation. 

26.The 2^nd plaintiff said as he was suffering from bipolar condition and had been in and out of Hong Kong he was unable to instruct a new legal team.  It was only until 4 January 2020 that he had a brief discussion with a firm of solicitors which agreed to act for him.  He said the Deceased, the plaintiffs and the defendants were a very loving family and had a very harmonious relationship. He said that the Deceased and the 1^st plaintiff were a very loving couple and would not have excluded the 1^st plaintiff from her will.  He was never aware of the will having been made.  He could not believe that the Deceased had bequeathed her estate to the defendants to the exclusion of the plaintiffs.  He said he was the victim of Tai&Co’s misconduct and needed a new legal team to represent him. He asked for an adjournment of two months and offered to pay the costs of and occasioned by the adjournment and security for such costs.

27.The defendants objected. Mr Lau, counsel for the defendants, argues that the appeal is a very straight forward one.  There was inordinate delay.  A year has lapsed and the particulars are still not forthcoming.  There was a history of delay occasioning three unless orders.  By reason of the delay, the defendants are prevented from progressing further with their probate action.  Such delay is prejudice which could not be compensated for by costs.

28.The 2^nd plaintiff had complained against his solicitors’ misconduct since 12 December 2019 and asserted in his letter to Master Hui of even date that he was “currently preparing” to change his legal team.  More than five weeks have since lapsed.  He has not arranged new legal representation.  He was reminded by my clerk’s letter dated 6 January 2020 the urgent need to instruct a new legal team or be prepared to act in person.  Other than a vague allegation that he was in and out of Hong Kong and a new firm of solicitors had agreed to act for him on 4 January 2020, he offered no explanation why he has not instructed or could not instruct a new legal team.  This appeal is not one with much complexities in fact or in law.  As the matter then stood, no application for leave from sanction has been applied, the issue is whether the particulars requested were reasonable and the answers provided adequate.  As the defendants alleged and as Tai agreed, the issue is a question of law.  There is no reason why any firm of solicitors could not have taken up this appeal if properly instructed.  What is remarkable is that despite the advice in my clerk’s letter dated 6 January 2020, the 2^nd plaintiff attended court today without ever contacting his solicitors and just told me that he was surprised that they did not appear.  His failure to secure legal representation, even if not self-engineered, was due to his half-heartedness or lack of determination in prosecuting this appeal.  Despite his bipolar condition, as confirmed by his doctor, he was fit to instruct counsel and must therefore be fit to present his case in court with this court’s assistance.  The 2^nd plaintiff appeared to be calm and stable.  He spoke good English, was communicable and responsive. He impressed me as a mature businessman with good understanding and experience in life.  He has no difficulties conducting his affairs and business including a simple litigation of this kind.  In respect of legal issues touching on this appeal, he would also have the benefit of the assistance of this court.  Having regard to the issues raised by this appeal, I am of the view that lack of legal representation could not be a reason to have the hearing adjourned.  I did not formally dismiss the application for adjournment as the 2^nd plaintiff was not then in the position to make the application. 

29.As Tai&Co, the plaintiffs’ solicitors on record, did not appear, technically, the appeal may be dismissed for want of prosecution.  To save the appeal, the 2^nd plaintiff decided to act in person.  With the assistance of my clerk, he completed the documentation which enabled him to do so.  The 1^st plaintiff, however, remained represented by Tai&Co which defaulted in appearance.  I stood the hearing down to 2:00 pm to enable the 2^nd plaintiff to study the defendants’ skeleton submission and to prepare for the hearing on the understanding that the 2^nd plaintiff will not apply for adjournment at the resumed hearing. 

Application to adjourn

30.When the hearing resumed in the afternoon, the 2^nd plaintiff renewed his application for adjournment.  He said he was unable to conduct the appeal because of his mental condition.  He repeated his need for a new legal team to assist him in the prosecution of the appeal, suggesting incompetence on the part of Messrs SW Tai & Co.  Mr Lau repeated his grounds for opposition which I have considered above.  The thrust of Mr Lau’s argument is that there has been inordinate delay resulting in prejudice to the defendants.  This litigation was still at an early stage.  No defence has yet been filed.  The delay was unlikely to be long. I do not consider the prejudice a weighty factor compared with the consequence to be suffered by the 2^nd plaintiff in having the action struck out.  However, for reasons as I have mentioned above and the further reasons as I shall develop below, I refuse the application for adjournment.

Construction of the second unless order and third unless order

31.The second unless order was phrased in simple language requiring the plaintiffs to file and serve answers to the particulars requested.  On the face, it is a time order requiring performance of filing and serving answers before a deadline. However, it must be construed against the pleadings, the requests and the conduct of the parties leading to the making of the unless order.

32.Insofar as the pleadings and requests are concerned, the purpose of the requests is obvious.  It is to ascertain whether the plaintiffs actually have a case and, if they have not, to obtain further particulars to perfect the pleadings so as to enable the defendants to meaningfully respond to the allegations. When construed against the above background, it is clear that the essence of what was being sought was the particulars requested and not the mere performance by way of filing and serving some documents purporting to be answers within the stipulated deadline.

33.Furthermore, the conduct of the parties is relevant.  The second unless order and the earlier order of 2 January 2019 under which the plaintiffs agreed to provide the particulars within 28 days which they failed to comply were all obtained by consent upon the joint application of the plaintiffs and defendants.  The inference must be that the plaintiffs accepted that the pleadings in their statement of claim are inadequate and that the particulars were reasonably required to enable the defendants to respond to the statement of claim.  In other words, the plaintiffs must be taken to have accepted that not only was the time for performance of the essence of the unless orders, the performance was also of the essence.  The second unless order is not merely a time orders.  It required compliance in substance.  The particulars required to be provided must be substantive and not illusory.

34.Some particulars were filed on 25 February 2019 in purported compliance of the second unless order.   The defendants did not consider that sufficient compliance and took out the striking out summons.  Instead of immediately disputing the defendants’ complaint of non-compliance, the plaintiffs asked for time and later on more time to enable them to file an affirmation in opposition to the striking out summons.  Then, eventually, the plaintiffs’ then solicitors file Tai’s second affirmation essentially asserting that there was no factual evidence to be filed and the issue was only one for legal argument.  Impliedly, the plaintiffs’ position is that the answers were adequate.  If that is so, one wonders why they should repeatedly ask for time to file affirmation in opposition.  Be that as it may, nothing turned out from the third unless order.

The pleading and the requests

35.A fair reading of the statement of claim suggests that the plaintiffs adopted a scattergun approach in their statement of claim, making all possible challenges against the validity of the will going far beyond putting the defendants to strict proof.  Despite their admission that they had no personal knowledge of how the will was prepared or executed, they alleged lack of testamentary capacity on the part of the Deceased as pleaded in paragraph 17; her lack of knowledge of the English language and being unable to read and write in English as pleaded in paragraph 18; and that pressure or undue influence had been exercised on the Deceased by the defendants in procuring the execution of the will as pleaded in paragraph 19.  Having read these paragraphs, I am satisfied that except for request 2(a), these paragraphs are lacking in particulars which go to the very core of the plaintiffs’ case.  Having read the requests, I am also satisfied that the requests were made for the purpose of ascertaining whether the plaintiffs actually have a case and, if they have not, to obtain further particulars to perfect the pleadings so as to enable the defendants to meaningfully respond to the allegations.  The statement of claim is woefully lacking in particulars.  The pleading in these paragraphs are fundamentally defective.  In the face of these serious and extensive allegations and their admission that they had no personal knowledge about the preparation and execution of the will, it was reasonable and appropriate for the defendants to seek further and better particulars of the allegations. 

Whether there was breach of the second unless order

36.Having found that the second unless order is not merely a time order but one which requires substantive compliance, the issue is whether the answers provided are illusory or adequate.  Mr Lau categorised the plaintiffs’ answers into the following five main categories, excluding items 7(a) and 8(a) which appear to be simply clarification of semantic ambiguities:

(1)  particulars to be provided after gathering such from a third party without any specified timeline;

(2)  answers which are vacuous, circular and/or meaningless;

(3)  answers which essentially dispute the reasonableness of the request;

(4)  particulars to be provided after they have been gathered from an unspecified source without any specified timeline; and

(5)  particulars to be provided after obtaining further and better particulars of the defendants’ defence.

Mr Lau submits that any answer which falls into any of these categories are illusory.  Except for Category (3), into which request item 2(a) falls, I agree.   For the purpose of ascertaining facts which might assist me in the exercise of my discretion whether to grant the plaintiffs relief from the sanction under the unless order, I had a quick run over the questions and answers with the 2^nd plaintiff at the hearing.

37.In request 1(a), the defendants asked what was the mental disorder which the plaintiffs alleged the Deceased was suffering from.  The answer was that it was the same disorder suffered by the 1^st plaintiff and that particulars will be provided after they have been received from the psychiatrist at the request of the 1^st plaintiff.  There is no information as to what mental disorder the 1^st plaintiff was suffering.  There is no assurance that the 1^st plaintiff would make enquiries with the psychiatrist as to his mental disorder and when he would do so.  Besides, there is no reason why the plaintiffs had not ascertained that and pleaded the mental disorder in the statement of claim before it was issued or ascertained it during the long intervening period.  Such answer clearly does not answer the request and is illusory.  The 2^nd plaintiff confirmed that even as of today, he does not have those particulars.

38.In request 1(b), the defendants asked how the alleged mental disorder affected the Deceased mental capacity.  The answer was it affected her determination as to the validity of the terms and conditions and execution of the will at the least.  That is only a repeat of the pleading substituting the words “validity …” for the words “mental capacity.  That answer is circular and does not answer the question how.  That answer falls within Category (2).

39.In request 2(a), the defendants asked how and why was the questionable mental capacity of the Deceased obvious to those who had contact with the Deceased at the material time.  The answer was that the request was irrelevant and it is a matter of evidence.  It falls within Category (3).  In my view, the request was irrelevant and the plaintiffs were entitled to dispute the reasonableness of the request.

40.In request 2(b), the defendants asked what was the material time referred to in relation to request 2(a).  The answer was “before or after execution of the alleged will”. The effect of the word “or” read disjunctively is ambiguous and no answer to the request.  The defendant could not know what the material time was.  Read conjunctively, it meant any time which clearly is too wide and vague.  Such pleading is embarrassing which the defendants would be unable to plead to.  That is a Category (2) answer.

41.In request 2(c), the defendants asked for full particulars of each of the alleged occasions when the Deceased allegedly told the 2^nd plaintiff that she had difficulty comprehending what was occurring around her and suffered loss of memory, such as the number of occasions, date, venue, the persons present, the precise contents and words said by the Deceased and duration of each occasion.  That is a very loaded question.  The answer may be cumbersome.  The only adequate answer given was that no one other than the 2^nd plaintiff was present in relation to request 2(c)(iv).  The other five answers are that the particulars will be “provided after the information has been gathered”. Obviously, the plaintiffs gave no particulars.  They only promised to gather them, but they never did during the long intervening period.  Such answers fall within Category (4).  At the hearing, the 2^nd plaintiff said that there was only one occasion when the Deceased told him about her difficulty comprehending what was occurring around her and that the venue was at the Deceased’s home.  Given time, the 2^nd plaintiff might be able to come up with full particulars.  However, there was no explanation why such particulars were not given over a year.  The 2^nd plaintiff impliedly suggested that it was the fault of Tai&Co.  But that does not cure the breach.

42.In request (3), the defendants asked what was the medical condition which the Deceased was suffering from; the basis for the allegation that the 1^st defendant knew of the Deceased’s medical condition; who in Messrs Chung & Kwan (“C&K”) did the 1^st defendant allegedly instruct to prepare the will for the Deceased; and whether the alleged instructions were given in writing or verbally.  In relation to the Deceased’s medical condition and the 1^st defendant’s knowledge of the Deceased’s medical condition, the plaintiffs repeated their answer to request 1(a) and (b) which as I have indicated was illusory, falling within Categories (1) and (2) respectively.  In addition, in respect of all the other requests, they replied that they reserved their rights to request for further and better particulars of the Defendant’s defence when the same is available regarding such issue.  Such answers fall within Category (5).  It is the plaintiffs’ pleading that the Deceased was suffering from certain medical conditions which were obvious to the 1^st defendant and despite that knowledge, he instructed someone from C&K to prepare the will for the Deceased.  The plaintiffs have pleaded a positive case.  By those answers, they are effectively refusing to disclose the particulars of the medical condition of the Deceased they are relying on and the particulars of the person whom they alleged to have been instructed by the 1^st defendant to prepare the will.  More ridiculously, they are asserting that the defendants should provide those particulars to help the plaintiffs to perfect their pleading and their case.  Obviously, the plaintiffs do not have the particulars and the allegations were pleaded without any supporting particulars.  They were just throwing a net to see what fish would get caught.

43.In request (4), the defendants asked how did Ms Kwan of C&K knew or ought to have known of the Deceased’s medical condition at the time of execution of the will.  In request (5), they asked what was the alleged medical condition referred to and how it deprived the Deceased of testamentary capacity.   The plaintiffs’ answers are that they reserved their rights to request for further and better particulars of the Defendant’s defence when the same is available regarding such issue.  Such answers fall within Category (5).  I repeat my observation above.  Despite that they pleaded a positive case asserting that the Deceased was suffering from a medical condition which affected her testamentary capacity and which was obvious to Ms Kwan of C&K when she attended the execution of the will, obviously they did not have the particulars.  The defendants are entitled to be provided those particulars.  It is not open to the plaintiffs to effectively say that the defendants should provide them to the plaintiffs to help them perfect their pleading.  At the hearing, the 2^nd plaintiff said that the medical conditions include the Deceased’s old age and that she was suffering from diabetes and hypertension.  It is doubtful if such particulars support the plea.

44.In request (6), in relation to the plaintiffs’ allegation that as a result of her old age, declining physical and mental health the Deceased became more susceptible to pressure and the 2^nd defendant constantly subjected the Deceased and her domestic helpers to threats, the defendants asked for particulars as to the date of such occasions of threat, the place where the threat was made, the particulars of the persons present and the particulars of the threat.  The plaintiffs’ answers were that they will be “provided after all relevant information has been gathered and they reserve their rights to request for further and better particulars of the defendants’ defence when the same is available regarding such issue”.  These answers are obviously illusory and fall within Categories (4) and (5).  At the hearing, the 2^nd plaintiff alleged that the threats were made in the Deceased’s home and he was able to provide the particulars of the domestic helpers present at the time of the threat. I assume that given time, he would be able to answer the requests, but that does not excuse the plaintiffs for not providing them pursuant to the second unless order.  I repeat my observations above paragraphs.

45.In request (7), in relation to the plaintiffs’ allegation that the defendants exerted pressure on the Deceased to execute the will, the defendants asked for particulars of the persons present, the particulars of the person who exerted pressure, the particulars of the pressure exerted, the duration of the pressure and the Deceased’s response.  The plaintiffs’ case is that they do not know about the execution of the will at the time it was executed.  Yet they pleaded a positive case as asserted above.  One of their answer is that “according to best of the information, knowledge and belief of the 1^st and 2^nd plaintiff, at least the 1^st and 2^nd defendants were there.”  That is a Category (2) answer.  It gave no particulars of what is the “best of the information”.  In respect of the other particulars requested, the answers they gave are that the particulars will be “provided after all relevant information has been gathered and they reserve their rights to request for further and better particulars of the defendants’ defence when the same is available regarding such issue”.   These answers fall within Categories (4) and (5).  I repeat my observations made above.  The particulars are illusory.

46.Request (8) is related to incidents after the making of the will when the Deceased was admitted to hospital.  In short, the plaintiffs alleged that the defendants threatened the team of doctors treating the Deceased with legal action if they continued to provide treatment to the Deceased.  In my view the pleading is irrelevant as the events occurred after the will had been executed.  The threat on the doctors could have no bearing on the validity of the will.  Anyway, the incidents have been pleaded, requests have been raised, they have to be answered for what the allegation pleaded is worth.  The plaintiffs gave similar answers as in their answers to request (7).  For the same reasons as given above, those answers fall within Categories (4) and (5).   The particulars are illusory.  At the hearing, the 2^nd plaintiff assured that he has the particulars of the doctors present and was able to provide the particulars. Again, that is no answer to the question why those particulars had not been produced pursuant to the second unless order.

47.In conclusion, except in relation to request (2)(a), the relevance or reasonableness of which is disputed, only an insignificant part of the requests has been answered.   In paragraphs 17 to 19 of the statement of claim, the plaintiffs are alleging that the defendants knew or ought to have known that the Deceased was suffering an unparticularised but not unknown psychiatric disorder and unparticularised but not unknown medical conditions; that despite that, the defendants instructed an unidentified person in C&K to prepare the will for the Deceased; that despite Ms Kwan of C&K knew or ought to have known about the Deceased’s unparticularised medical conditions, she attested the will; that unparticularised threats had been exerted on the Deceased at the time she was executing the will; and that unparticularised threats had been exerted on the Deceased and her domestic servants on several unparticularised occasions by unidentified persons including at least the 1^st and 2^nd defendants.  The predominant answers are that the particulars will be provided later or that the plaintiffs reserved their right to make requests for further and better particulars of the defendants’ defence in relation to those requests from the defendants after the defendants have filed their defence.   The particulars were reasonably requested but the answers are in substance and substantially inadequate.  I am satisfied that the plaintiffs were in breach of the second unless order.

48.The 2^nd plaintiffs asserted that he has or he would be able to obtain particulars in relation to some requests if given the opportunity to do so.  But he is unable to offer any explanation for the failure to furnish them within the timeline pursuant to the second unless order.  He impliedly suggested it was due to the neglect or misconduct of his solicitors. 

Whether to grant relief from sanction of the unless order

49.Until the hearing of this appeal, the 2^nd plaintiff was legally represented.  The plaintiffs’ then solicitors took the position that the particulars were adequate.  They did not seek relief from sanction of the unless order.  By Tai’s second affirmation filed allegedly on the plaintiffs’ behalf, Tai as the plaintiffs’ solicitor on record confirmed that the plaintiffs had no evidence to file in opposition to the striking out summons.  The plaintiffs are bound by the acts of their solicitors. 

50.Now, the 2^nd plaintiff suggests that the failure to comply with the unless order was due to his solicitors’ misconduct or negligence, but he offered no particulars of such negligence.  He did not assert that Tai never consulted either of the plaintiffs about the requests nor did he assert that the answers to the particulars were provided by Tai without or contrary to his or the 1^st plaintiff’s instruction.  He was in and out of Hong Kong during the year. He asserted that he was in Hong Kong in September 2019 when Tai made Tai’s second affirmation, but contrary to Tai’s assertion Tai had not consulted him.  That incident is only related to the issue of Tai&Co’s liability for wasted costs only.  There is actually no evidence that the plaintiffs or the 2^nd plaintiff was not at fault.  In the light of Tai&Co’s absence at the hearing and Master Hui’s order requiring them to show cause as to why a wasted costs order should not be made against them, there is much to be said about Tai&Co’s misconduct.  But on the state of evidence before me, it is impossible to determine if Tai&Co were responsible for the delay, particularly in the absence of evidence from them, not to mention that the 2^nd plaintiff had not even filed a proper affirmation to explain the non-compliance.  The 2^nd plaintiff has utterly failed to discharge the burden of showing that the sanction should not be invoked.

51.The 2^nd plaintiff said that as he was suffering from bipolar condition he could not handle this appeal.  He said he could not conduct this appeal without legal representation.  He had raised the issue of Tai’s impropriety in the conduct of this litigation a month ago and he said he was preparing to replace Tai&Co.  He was advised by my clerk’s letter to promptly instruct a new firm of solicitors if he should discharge Tai&Co or be prepared to conduct his appeal in person and that the hearing would proceed as scheduled. This is a simple appeal which any firm of solicitors could take up at short notice, if properly instructed.  The 2^nd plaintiff was in Hong Kong in September 2019 when he consulted his doctor and when Tai filed Tai’s second affirmation allegedly without his instruction.  He was in Hong Kong in December 2019 when he complained about Tai’s impropriety and when he was preparing to replace Tai&Co.  He was in Hong Kong in January 2020 when he consulted his doctor again.  He asserted that on 4 January 2020 he had found a firm of solicitors who agreed to represent him.  There was no explanation why he did not instruct them to appear today.

52.I fully appreciate that the 2^nd plaintiff is acting in person and that he is suffering bipolar condition.  But his doctor confirmed that he was fit to instruct counsel.  This appeal is by no means complicated.  The issues as I have outlined them are straight forward and could be determined on the face of the statement of claim, the requests and the answers provided.  These are matters which as the defendants and Tai asserted are legal issues.  The 2^nd plaintiff had the court’s assistance where necessary.  He did not suffer any disadvantage due to lack of legal representation.  On the question of whether the plaintiffs should be relieved from the sanction, it appears that his case is that the non-compliance with the second unless order was due to impropriety on the part of Tai&Co.  If that is the case and/or that he has any other explanations for the non-compliance, what he need to do was to inform the court the particulars of his complaint in simple language.  He had complained about impropriety of Tai’s conduct of his litigation but he gave no particulars.  He never suggested, for example, that Tai never informed the plaintiffs about the requests for particulars, or that the answers were made up by Tai without the plaintiffs’ instructions.  All that he did was to ask for an adjournment.  The 2^nd plaintiff impressed me as an intelligent businessman with good ability in understanding and conversing in English.  He appeared to be steady and well composed.  I am well satisfied that his psychiatric condition was not such as would prevent him from adequately presenting his appeal.  He was only dragging his feet.  He has not discharged the burden of showing why the sanction should not be invoked.

53.Besides, no application for relief from sanction has been made.  As the 2^nd plaintiff is not legally represented and has made a complaint of impropriety against his solicitors, I take the extra caution of considering whether to invite him to make an application for relief from sanction and whether to grant him extension of time to enable him to do so.  While there is much to be said about an order to show cause having been made against Tai&Co, the 2^nd plaintiff’s complaint about impropriety is so vague that I do not consider it appropriate to take that course.  The following discussion, albeit relating to another issue, further support that view. 

54.Putting aside the question of the 2^nd plaintiff’s complaint about his solicitors’ misconduct, as between the plaintiffs and the defendants, this is a straight forward case of non-compliance with an unless order and the sanction would be invoked automatically unless the sanction would be disproportionate to the breach or that the plaintiffs have discharged the burden of showing why they should be relieved from the sanction.  To have a statement of claim struck out and the action dismissed for want of compliance of an unless order is a serious consequence.  On the other hand, the plaintiffs have failed to furnish the particulars for a year.  Tai’s second affirmation made it abundantly clear that the plaintiffs had adequately provided the particulars.  In other words, they do not have further particulars to give.  On their own case, the plaintiffs do not have personal knowledge of the circumstances under which the will was prepared or executed.  For a year they were unable to particularise the mental condition and medical conditions suffered by the Deceased; the nature of the threats exerted on the Deceased to procure the execution of the will; the particulars of the threats exerted on the Deceased and her domestic helpers.  The answers are predominantly in the form of Categories (4) and (5), i.e. requiring further investigation and/or information from the defendants.  The circumstances suggest that the plaintiffs did not even have the particulars necessary to support their pleaded case when they commenced the action and issued the writ. That by itself is an abuse of process of the court.  Viewed in this light, the sanction is not disproportionate to the breach.

55.Focusing back on the 2^nd plaintiff’s complaint about his solicitors’ misconduct, he asserted that he failed to provide the particulars because of Tai&Co’s misconduct but given time he could be able to do so.  In other words, but for Tai&Co’s negligence, he would not suffer the consequence of having his action dismissed.  Hence, as between him and Tai&Co, if the statement of claim is struck out, the 2^nd plaintiff has a claim for professional negligence against Tai&Co. 

56.Thus, the alleged misconduct of Tai&Co is at the heart of the dispute between all three parties.  If Tai&Co had not been negligent, the plaintiffs’ action would have run its normal course and be determined according to the merits of the plaintiff’s pleaded case.  The defendants would not have to suffer prejudice in the form of being denied prompt justice which the defendants are entitled to.  On the other hand, if the plaintiffs’ action is struck out because of Tai&Co’s misconduct, the defendants will not suffer prejudice; but that would be at the expense of the plaintiffs.  However, the plaintiffs may recover what they would lose against Tai&Co in negligence and in contract.  In the circumstances, the interest of justice would be best served to allow the sanction to take effect and leave the issue of misconduct to be resolved between the plaintiffs and Tai&Co.  If the plaintiffs succeed, they would recover what they would be entitled against Tai&Co and Tai&Co would be rightly punished for their misconduct.  If the plaintiffs fail, that means their action against the defendants is rightly struck out for their own failure in providing particulars.  Accordingly, the sanction should be allowed to take effect immediately and the plaintiffs shall not be relieved from the sanction.

The other grounds for striking out the statement of claim

57.Having found that the statement of claim is woefully lacking in particulars, it must necessarily follow that it is caught by any of the remaining three grounds as pleaded in the striking out summons, which are the same grounds for striking out as set out in Order 18, rule 19(b), (c) and (d).  The only other consideration before ordering striking out pursuant to these grounds is whether the defect in the statement of claim is curable by amendment.  The 2^nd plaintiff said that given time he would be able to provide some particulars after making enquiries, such as the particulars of the psychiatric condition and the medical condition suffered by the Deceased; the names of the doctors attending the Deceased who were threatened by the defendants; the names of the two domestic helpers who were threatened by the defendants; the particulars of the threats uttered to the Deceased by the defendants to procure the execution of the will; and some other minor particulars.  Those particulars are very rudimentary.  Even at this stage, the 2^nd plaintiff did not actually know what psychiatric condition the Deceased was suffering.   The medical conditions he relied on were the Deceased’s old age, diabetes and hypertension.  It is not entirely clear if and how those particulars could support the plea of lack of testamentary capacity and undue influence.  The threats uttered at the doctors treating the Deceased in 2017 were uttered after the will was executed and could have little or no bearing on the question of the Deceased’s mental capacity.  Furthermore, as the plaintiffs failed to obtain and provide those particulars after a whole year, it is doubtful if they have or will be able to obtain the particulars.  The 2^nd plaintiff has failed to satisfy the court that the statement of claim is curable.  Accordingly, the statement of claim should also be struck out under the other three grounds, i.e. scandalous, frivolous or vexatious; prejudicing, embarrassing or delay the fair trial of the action; and otherwise an abuse of the process of the court.

Conclusion

58.For the above reasons, I uphold the order of Master Hui made on 23 August 2019. The plaintiffs’ appeal is therefore dismissed with costs.

The 1^st plaintiff was represented by S.W. Yai & Co. but absent

The 2^nd plaintiff appeared in person

Mr Kerby Lau, instructed by Yung, Yu, Yuen & Co, for the 1^st to 4^th defendants