Crb (A Firm) v. Mark Richard Charlton Sutherland

DCCJ 4528/2019

[2020] HKDC 624

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4528 OF 2019

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Before: Deputy District Judge YW Hew in Chambers

Dates of Hearing: 19 December 2019 and 13 January 2020

Date of Decision: 5 August 2020

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DECISION

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INTRODUCTION

1.This is my decision, or reasons for decision, in relation to the following matters:-

(1)  At Section C below, my decisions in relation to:-

(a)  an application for summary judgment by a firm of solicitors against the defendant (“the Summary Judgment Application”), which was heard on 19 December 2019 and 13 January 2020; and

(b)  a related application made by the defendant on 13 January 2020 that the Summary Judgment Application and/or these proceedings should by reason of s 67(2) Legal Practitioner’s Ordinance (“LPO”) be stayed due, and/or adjourned for quantum purposes, to proceedings commenced by the defendant for taxation of the plaintiff’s fees in HCMP 2285/2019 (“the Taxation Proceedings”) (“the LPO Application”);

(2)  At Section D below, my reasons for rejecting the defendant’s application for a general adjournment of the hearing of the Summary Judgment Application on the first day it was heard (ie 19 December 2019 (“the 2019 Adjournment Application”).

BACKGROUND

2.The plaintiff is a firm of solicitors in Hong Kong specialising in family law.

3.The defendant was formerly a solicitor in Hong Kong, and is a barrister in Hong Kong.

4.There is no dispute that the defendant was the plaintiff’s former client, and that the plaintiff provided the defendant with legal services and/or legal representation in family law proceedings in Hong Kong (“the Family Proceedings”) during the period[1] from either 2 or 3 October 2017, to either 8 February 2019 (on the defendant’s case as set out in his affidavit) or until around March 2019 (on the plaintiff’s pleaded case in its Statement of Claim).

5.The plaintiff therefore issued nine bills to the defendant on various dates between 31 October 2017 and 1 April 2019.  Of these nine bills, only one of them, dated 5 September 2018, was settled from monies from account provided by the defendant for that purpose.  The other eight bills have not been paid.  The amount that is said to remain outstanding under all nine bills is $1,612,795.70 (“Outstanding Amount”).

6.Aggrieved by the defendant’s failure to pay the Outstanding Amount, the plaintiff therefore:-

(1)  on 21 August 2019 initiated these proceedings by Writ with attached Statement of Claim, claiming against the defendant for the Outstanding Amount; and

(2)  on 17 September 2019 filed a summons seeking summary judgment in these proceedings and in the sum of the Outstanding Amount, as supported by an affidavit of one of its partners (“P Aff 1”).

7.The Statement of Claim alleged that:-

“By an agreement in writing dated 18 October 2017 and entitled “Professional Fees, Engagement Terms & Data Privacy Notice Agreement” made between the plaintiff and the defendant (the “Agreement”), the defendant agreed to engage the plaintiff to represent the defendant as his solicitors in the [Family Proceedings]”.

8.The Statement of Claim went on to allege, inter alia, claims against the defendant pursuant to and premised on the various terms of what was pleaded as the Agreement including contractual interest.

9.P Aff 1 stated that the particulars of the plaintiff’s claim appear by the Statement of Claim.  It also, amongst other things, exhibited a copy of an email from the relevant partner to the defendant dated 18 October 2017 (“the Email”) attaching a written retainer, which the deponent said was the Agreement as defined and particularised in the Statement of Claim.  It was then said that by reason of oversight the defendant did not sign the written retainer and return it to the plaintiff, and that the soft copy of the written retainer attached to the email was also not signed by the plaintiff. The deponent then went on to aver that the plaintiff proceeded to receive instructions from the defendant and represent and advise him as instructed pursuant to the terms of the written retainer (ie the Agreement as defined by the plaintiff), that the parties had therefore clearly assented to its terms and proceeded on its basis, and that the defendant did not during the course of the retainer (ie until around March 2019) raise any queries, issues, or disputes with respect to its terms or indicate that he did not consider himself bound by them.

10.In the meantime the defendant had, by an acknowledgment of service filed in early September 2019 via his solicitors, Messrs Oldham, Li & Nie (“OLN”), indicated he would contest the proceedings.  A call-over hearing of the Summary Judgment Application was set down for 1 November 2019 before Registrar Lui.

11.On 15 October 2019, the parties filed a consent summons seeking directions whereby the defendant would be given leave to file evidence in reply to the Summary Judgment Application by 11 November 2019, the plaintiff leave to file further evidence in reply thereto 14 days thereafter, no further affirmation be filed without leave of the court, and the call-over hearing be vacated with the Summary Judgment Application be adjourned to a date to be fixed in consultation with counsel’s diaries with 3 hours reserved.  On 28 October 2019 Registrar Lui granted such orders, adjourning the hearing of the Summary Judgment Application to 19 December 2019 for argument before a Judge with 3 hours reserved.

12.By way of an application dated 11 November 2019, the defendant sought a further 14 day extension until 25 November 2019 to file his evidence in reply, and to extend the deadline for the plaintiff’s reply evidence to 14 days thereafter (ie 9 December 2020).  On 20 November 2019 the court made such an order, albeit on “unless” terms in relation to the filing of the plaintiff’s evidence.

13.On 25 November 2019, the defendant filed his affidavit in reply to, and opposing, the Summary Judgment Application (“D Aff”).  While I shall return again to the contents, context, and timing of D Aff, I would mention the following matters at this juncture.

14.Firstly, D Aff disputed the existence of any signed retainer, and said that there was no agreement in writing, as alleged in the Statement of Claim or at all.  It was also said that he did not agree to terms set out in the draft retainer agreement that was sent to him (via the Email, to which he said he did not reply), to the hourly rates therein, and hence that the plaintiff had no authority to issue any interim bill.

15.It was hence further said that the claim based on a specific contractual amount was not apt for summary judgment because, even if the court were to conclude, contrary to his primary case that some sums were due[2], they could only be calculated following an independent assessment or taxation of the bill resolved by the court on having considered rival arguments on the individual items in issue.  It was then said that the summary process was not apt or suitable for taxation of the bill of costs.

16.Secondly, the said affidavit also claimed that on the facts, the plaintiff firm’s handling of the Family Proceedings was negligent, and that:-

(1)  He was “in the process of seeking legal advice as to a potential counterclaim”, and that hence the defendant disputed “the entirety of the claim” and that “in due course” the defendant intended to counterclaim against the firm for losses.  It was also said that he had been “advised by my instructing Solicitors and Counsel and believe, that I have a valid counter-claim both against [the law firm which represented him prior to the plaintiff] and the plaintiff as well as the Junior Counsel [who had represented him] for both a full refund of all moneys I have paid as well as significant damages”.

(2)  He was aware and had been advised by his solicitors that he was unable to exhibit documents which had been filed with the court in the Family Proceedings without first obtaining leave of the Family Court.  It was said that he would “list out those documents in [his] List of Documents and will seek leave from the Family Court at the appropriate time.”

17.For the purposes of this section it is also convenient to mention that there was an issue in relation to the copy of D Aff as originally filed, as some pages were missing due, apparently, to a photocopying error by the defendant’s solicitors.  The defendant’s solicitors hence applied on 27 November 2019 for relief from sanction.  Eventually, on 4 December 2019 His Honour Judge Andrew Li granted an order in terms of a consent summons giving the defendant relief from sanction by allowing him to insert the relevant missing pages in D Aff.

18.On Monday 9 December 2019 the plaintiff filed its affidavit in reply to D Aff (“P Aff 2”) which, apart from repeating that the defendant had not objected to the terms of the Agreement, stated that the defendant had:-

(1)  never queried or objected to any of the plaintiff’s bills;

(2)  never raised any disagreement to hourly rates in the terms of the Agreement (as pleaded by the plaintiff) and/or lack of authority to issue any interim bills; and

(3)  never raised any concerns about alleged mishandling of his case and that he would refuse to make payment.

19.The plaintiff by P Aff 2 also “categorically denied” each and every allegation of negligence.  It was also said that they were “spurious and entirely unsubstantiated”, that there was no basis to them, and that the evidence would “exonerate the plaintiff should the defendant ever see fit to launch a suit” which would be “vigorously and robustly” defended.  It was further mentioned that if the defendant did so sue, what had apparently been produced or reproduced from certain transcript and/or affidavit citations in his affidavit (in breach of Matrimonial Causes Rules Cap 179A) would be shown to be “out of context, spurious and/or self-serving, and wholly unsupported by contemporaneous documentary evidence”.

20.That same week, on Thursday 12 December 2019 the defendant filed an originating summons HCMP 2285/2019, that is the Taxation Proceedings, as a plaintiff therein, against CRB as the defendant therein.  He sought inter alia an order that “the bill of costs delivered” (which sum and contents refer to the nine bills) be referred to the Taxing Master to be taxed, and stated that the application was made under ss 60, 63 and 67 LPO.  The Taxation Proceedings were supported by an affidavit of the defendant (there the plaintiff) also filed on even date, which made similar allegations of negligence etc. to those set out in paragraph 16 above.  The defendant was also represented by Messrs OLN in the Taxation Proceedings.

21.On 16 December 2019 the plaintiff filed its skeleton submissions in support of the Summary Judgment Application.  While I shall discuss such in more detail in relation to the salient issues below, this is an appropriate juncture for me to mention that, given the defendant’s allegations of negligence against the plaintiff, the plaintiff’s skeleton advanced the argument that the defendant’s alleged counterclaim was, on the evidence, frivolous and tenable, as the defendant had made “bare assertions, wholly unsupported by any contemporaneous documents, as to” such, had failed to condescend to particulars, and was moonshine since what he said was not credible/believable.  They also contained submissions that the Taxation Proceedings were an abuse of process.

22.On Tuesday 17 December 2019 the defendant filed a Notice to Act in Person, as well as skeleton submissions as a litigant-in-person.  It was only by way of the latter that the defendant indicated to the court for the first time that:-

(1)  He had on Friday 13 December 2019[3] sought leave, by letter to the judge seized with the Family Proceedings (“the Family Court Judge”), for an urgent hearing of a summons and affidavit for an application for leave to produce certain documents from the Family Proceedings (“the Leave Application”) “in order to be able to properly defend the [Summary Judgment Application]”.  It was said that without such leave, the defendant would be “unable to present his case and will be placed in an unfair and prejudicial position”.  The claim was further made that the plaintiff had exercised a lien over certain papers/documents in the Family Proceedings and was cognisant of what they said, and that it would be “unjust for the application to proceed without [the defendant] having sight and the opportunity to rely on those documents”.

(2)  He had on Monday 16 December 2019 apparently sought to speak to the clerk to the Family Court Judge dealing with the Family Proceedings and was told that the Leave Application was pending directions.

The defendant’s Skeleton did not contain any application for an adjournment or suggest any terms in relation to such.  Nor did it suggest that there should be any stay of these proceedings, or the Summary Judgment Application in favour of the Taxation Proceedings.

23.On 18 December 2019 the defendant wrote to the plaintiff suggesting that the hearing of the Summary Judgment Application be adjourned so that the plaintiff could amend its pleadings, and (with reference to what was apparently the Leave Application) until the defendant had obtained leave to produce copies of the documents from the Family Court.

24.At the hearing of the Summary Judgment Application on 19 December 2019, the defendant appeared in-person to oppose the Summary Judgment Application.  He initially applied for an informal adjournment to inquire with the clerk to the Family Court Judge seized of the Family Proceedings as to the result of the Leave Application.  As discussed in more detail below, later that morning an application was eventually made as per the 2019 Adjournment Application, which I refused at that hearing for reasons to be handed down later, and which are set out below.

25.The hearing of the Summary Judgment Application, which had initially been set down for half a day, did not conclude on 19 December 2019.  This was in spite of the court and the parties fortuitously being able to continue the hearing for a period after lunch.  At the end of that day, the defendant indicated that he needed another 45 minutes to continue to make submissions in relation to his allegations of negligence against the plaintiff.  After inquiring as to further availability I fixed a resumed hearing date of 13 January 2020.  I also repeated that no further evidence was to be filed without leave of the court, that I would be very reluctant to let in any further material unless it was clearly material, and that any further applications should be made in accordance with the general, well-known principles, which the defendant said he accepted.

26.On 3 January 2020 I directed that the parties make further submissions at the resumed hearing on the standard of, and test for, negligence relevant for the purposes of the plaintiff’s application.

27.On 9 January 2020, Messrs OLN filed a Notice to Act for the defendant.

28.On 10 January 2020 the plaintiff filed submissions on the topic mentioned in my directions of 3 January 2020.

29.That same day, the defendant filed submissions by Mr Nicholas Pirie (leading Mr Thomas Martin). Those stated on behalf of the defendant that “negligence is not at issue for the hearing on the 13th of January”. Instead, and with reference to an open letter sent by the defendant to the plaintiff on 7 January 2020 which was drafted pursuant to Mr Pirie’s advice, the skeleton suggested that:-

(1)   The Summary Judgment Application was defective as there was no retainer signed in writing.  This was in essence the same argument mentioned at paragraph 14 above.

(2)     “The hearing” should be stayed pending further directions by the taxing master seized with the Taxation Proceedings (in relation to which, the court was thus informed, a call-over was due to take place on 14 January 2020) due to the operation of s 67(2) LPO.  The court was also invited to record, which I do, the defendant’s admission in his open letter that he was liable to “pay the plaintiff’s Firm fees, subject to the Quantum being assessed by the Taxing Master”.  The defendant’s open letter had also proposed inter alia that “the Hearing for Quantum be adjourned over into the [Taxation Proceedings]” (emphasis added), that “the defendant be at liberty to set off [his] Counterclaims and [his] claims in Negligence against the [plaintiff], against the quantum of fees assessed to be payable by the Taxing Master, if not otherwise agreed”, and that there be no Order for Costs after 12 December 2019[4].

30.At the resumed hearing of the Summary Judgment Application on 13 January 2020, pursuant to the matters set out in his skeleton, Mr Pirie continued to oppose the Summary Judgment Application.  At the hearing, he indicated that his primary position was that the Summary Judgment Application should be dismissed, but that alternatively pursuant to the LPO Application I should also stay the proceedings, and/or record the defendant’s admission and adjourn the matter of quantum to the Taxing Master.  Be that as it may, both Mr Pirie and Mr Martin maintained the position from their skeleton that “negligence is not an issue”, that it was not “relevant for the present proceedings”, and that the allegation of professional negligence had been “dropped for the purpose of the Order 14 application” [5].

31.The court and the parties therefore did not deal further with the allegations of negligence at that hearing.  Instead, the hearing of the Summary Judgment Application that day concluded with the court reserving judgment on the Summary Judgment Application, including the LPO Application as apparently made by the defendant’s counsel.  I also asked to be updated on the progress/steps that might take place in relation to the Taxation Proceedings.

32.Shortly after the conclusion of the Summary Judgment Application, the court was informed that the Taxing Master in the Taxation Proceedings had ordered that the hearing of those proceedings be adjourned sine die, with liberty to restore, until I had determined the Summary Judgment Application.

DISCUSSION: SUMMARY JUDGMENT APPLICATION AND LPO APPLICATION

(1) Principles relevant to the Summary Judgment Applications

33.The parties referred to the following paragraphs from Hong Kong Civil Procedure 2020:-

(1)  The defendant may show cause under RDC O 14 r 4:-

(a)  By a preliminary or technical objection eg that the case is not within this Order, or that the Statement of Claim or affidavit in support is defective (such as no due verification of the claim). If the objection is fatal, the court will dismiss the application or give unconditional leave to defend. If the defect is capable of amendment, the court may give leave to amend and proceed on the application as amended, subject to the questions of adjournment and costs: see paragraphs 14/4/2 and on amendment 14/1/6 and 14/7/2.

(b)  On the merits, eg that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which requires the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence: seeparagraph 14/4/2.

(2)  While the defendant may show cause by affidavit or otherwise, the primary obligation remains on the defendant to satisfy the court that there is a triable issue or question or that there ought to be a trial for some other reason: see paragraph 14/4/3, 14/4/9B.

(3)  As to the contents of the defendant’s affidavit, paragraph 14/4/4 states inter alia:-

(a)  “[it] … must condescend upon particulars, and should as far as possible, deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied on to support it.  This obligation is to ensure that where a plaintiff raises a plausible and prima facie sustainable case, a defendant can convince the court there exists a triable issue so that leave to defend is given or the application … is dismissed … [the affidavit] should also state whether the defence goes to the whole or part of the claim, and in the latter cause it should specify the part.”

(b)  Per RDC O 14 r 3(1) “… in all cases, sufficient facts and particulars must be given to show that there is a triable issue”.

(4)  Where the court is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant, it is its duty to give judgment for the plaintiff: paragraph 14/4/8.

(5)  The mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend, since the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence ie that his evidence is reasonably capable of belief.  The two tests are “Is what the defendant says credible?” and “Is there a fair or reasonable probability of the defendant having a real or bona fide defence?”  However applications are not intended to be a mini-trial of the action on the affidavits.  The issue is not whether the defendant’s assertions are to be believed, but rather whether the assertions are believable: paragraph 14/4/9A.

(6)  Where there is no defence, but a defendant has demonstrated a plausible counterclaim for an amount not less than the plaintiff’s claim, the court may grant a stay of execution for summary judgment on terms (including payment into court) until the trial of the counterclaim: paragraph 14/4/14B.

(2) The issues in relation to the Summary Judgment Application

34.The defendant’s objections/applications, insofar as they could be discerned, fell into the following categories:-

(1)  Objections as to the existence and/or form of the retainer between the parties (see paragraphs 14 and 29 above as dealt with in Section C3 below).

(2)  the LPO Applications as premised on or related to the issue of taxation (see paragraphs 15, 20, and 29(2) above as dealt with in Section C4 below).

(3)  Objections premised on the alleged negligence of the plaintiff (see paragraph 16 above).  However, as I have noted, the defendant for the purposes of the resumed hearing of the Summary Judgment Application abandoned his objections premised on the alleged negligence of the plaintiff.  Given this, and given also my findings at Sections C3 and C4 below, I have not dealt with such.

(3) Objections relating to the retainer

35.The defendant’s primary objections on this ground at the hearing of the Summary Judgment Application were:-

(1)  The Statement of Claim and P Aff 1 are materially inconsistent.  It was said that the plea of the Agreement in the Statement of Claim as being “an agreement in writing” was inconsistent with the evidence in P Aff 1.

(2)  It was necessary for the retainer to be in writing.

36.The plaintiff submitted that it was not necessary for the retainer to be in writing, and that P Aff 1 was not defective in any way, as the evidence indeed established the pleaded case that the Agreement was an “agreement in writing”.  It was also submitted, in any event, that it was not necessary for a retainer to be in writing.

37.Dealing with the second of these points first, in my view it is clear that it is unnecessary for a retainer (save in the case of retainers in criminal matters) to be in writing.  The relevant contractual duties may be written, oral, or implied: see HKSAR v Wong Chi Wai (2013) 16 HKCFAT 539 at paragraph 42; Capita Pension Trustees Limited v Sedgwick Financial Services Limited [2019] EWHC 314 (Ch) at paragraph 54; Hong Kong Solicitor’s Guide to Profession Conduct Principle 5.01 Commentary 8.

38.However, and in relation to the first of these points, and on the pleadings and evidence before me[6], the defendant has in my view showed cause by raising triable issues based on the matters contained in the evidence, and that P Aff 1 deviates from and does not sufficiently verify the facts on which the plaintiff’s claim is based.  This is for the following reasons.

39.Firstly, apart from the contents of the Email which I have summarised in paragraph 9 above, it is particularly pertinent to note that the Email also states:-

“To finalise your transition to [the plaintiff from its predecessor firm…] you will need to sign a new Engagement Form with [the plaintiff].

I therefore, attach this for your further action. Please review it and let me know if you have any queries. If you have no queries, then please sign and date it where indicated and please tick the box indicating how you would like to receive your accounts from [the plaintiff], and then return a scanned copy to me and the original in the post at your convenience.” (emphasis added)

40.What was attached to the Email was a soft-copy of the written retainer which is said to constitute the pleaded Agreement.  That attached document was not signed or dated by the plaintiff.  Its contents also read as follows:

(1)  At Clause 23:-

“If there are any terms in this agreement which are not clear to you, please raise such queries with us as soon as possible. If you accept the above terms and agree to be bound by them, please sign this Agreement in the place provided and return it to us.”

(2)  This was then followed by spaces for the signatures of both the relevant partner of the plaintiff who had sent the Email, and for the defendant, both of whom were named.  These were in turn followed by spaces for insertion of dates below each signature block.

41.The evidence before me indicates that it is, at the very least, triable that it was a requirement, in order for the written retainer (and its terms) to become binding, that such be signed by the parties or at the very least the defendant. Indeed and insofar as may be necessary, the present state of the evidence is more consistent with such a requirement.  The facts are very different from Maple Leaf Macro Volatility v Rouvroy & anor. [2009] EWCA Civ 1334 as cited by the plaintiff and, as is also clear from Anchor 2020 Ltd v Midas Construction Ltd [2019] EWHC 435 (TCC), the question of whether the parties actually required a signature is a matter to be decided on the facts of each case.

42.Secondly, the evidence presently before me is also more consistent with the fact that both parties did not sign the said written retainer.  In relation to this point the plaintiff referred to the signature block of the relevant partner of the plaintiff within the Email, and to s 6 Electronic Transactions Ordinance (Cap 553).  However, on the evidence I am unable to conclude, for the purposes of this Summary Judgment Application, that such constituted an “electronic signature” of the relevant partner of the plaintiff in relation to the terms of the written retainer, or (even if it did) that the requirements of ss 6(1)(c) and (e) are met.  There is at least also a triable issue to the contrary.

43.Thirdly, the plaintiff submitted in the alternative that the parties had waived the condition of signature, and had acquiesced in a different mode of acceptance. It was then said that the terms of the unsigned written retainer had been accepted by the parties’ subsequent conduct and/or performance of such.  Deciding this would be a question of fact: see Reveille Independent LLC v Anotech International (UK) Ltd [2016] EWCA Civ 443 paragraphs 40 to 42 and RTS Flexible Systems v Molkerei Alois Müller GmbH [2010] UKSC 14 at paragraphs 54 to 56.

44.However, such conduct would clearly have been subsequent to the date of the Email of 18 October 2017, which is the pleaded date of the “agreement in writing”.  I do not see how such facts and submission are consistent with the plea in the Statement of Claim that the “Agreement” was an “agreement in writing dated 18 October 2017”.  This is particularly so given that if a contract is alleged to be implied from a series of letters, conversations, or otherwise from a number of circumstances (as opposed to where it is alleged that the contract “was made orally or in writing”), that contract should be alleged as a fact and the letters, conversations, or circumstances should be set out generally: Hong Kong Civil Procedure 2020 paragraph 18/12/3 in relation to which see also Capita, supra, at paragraph 54.

45.I therefore do not see how it is relevant, as submitted by the plaintiff, that a party does necessarily have to plead, as a material fact, the date on which an agreement was signed, or that the plaintiff is under no obligation to anticipate a defence: see Ling Dai Hong v 汪裕祖 (unrep) HCA 1007/2011, 13 March 2012, M Ng DHCJ at paragraphs 71 to 74[7].

46.In view of my above conclusions on the current state of the pleadings and evidence, I therefore find it appropriate to dismiss the Summary Judgment Application.  Further to that and also for reasons I set out in the next section, I do not agree with Mr Pirie’s suggestion on behalf of the defendant that the Summary Judgment Application, or these proceedings, should be stayed, nor do I need to deal with the suggestion that the Summary Judgment Application should be adjourned for quantum purposes to the master seized with the Taxation Proceedings.

(4) Objections premised on or related to the issue of taxation under the LPO

47.As I understand it, the thrust of the LPO Application is, apparently, that the Summary Judgment Application (and/or the current proceedings) should be stayed pending further directions by the taxing master seized with the Taxation Proceedings (or adjourned to him) and in light of the operation of s 67(2)(b) LPO as:-

(1)  By reason of that section, an automatic stay is imposed on all actions on bills until the Taxation Proceedings are complete (with the call-over of such due to take place on 14 January 2020).  It was also said that accordingly “the Court cannot hear any evidence of either negligence or over charging as [the defendant] has a stay as of right”.

(2)  Alternatively, some form of a discretionary stay or adjournment should be granted by this court since the Taxing Master would in the Taxation Proceedings grant leave to tax (and also apparently a stay of the present proceedings).  The apparent basis of the submission was that less than 12 months had expired from the delivery of the plaintiff’s bills (which concerned the issue of whether such were “interim” or “final” bills) and in any event that there were “special circumstances” pursuant to s 67(2) LPO.

48.As I have mentioned, and in support of such, the court was also asked by the defendant’s counsel to record the defendant’s admission in his open letter that he was liable to “pay the plaintiff’s … fees, subject to the Quantum being assessed by the Taxing Master” subject to certain “provisos”.  Premised on such, it was also said by Mr Pirie that if I felt unable to dismiss the Summary Judgment Application then I should, having recorded the defendant’s admission, adjourn the matter to the taxing master seized of the Taxation Proceedings – which he appeared to suggest during the course of his oral submissions could be done by inter alia transferring the current proceedings to the Court of First Instance.

49.The plaintiff objected to the LPO Application.  It was said, inter alia, that the Summary Judgment Application had been (or was being) fully argued before me, no formal application had been made by way of summons, and that I was entitled to take a view on what was likely to happen before the Taxing Master in the Taxation Proceedings.  As regards such it was said that leave to tax (and accordingly any stay) would be refused, particularly if (as the plaintiff suggested) I returned “a verdict” in this action pursuant to s 67(2)(b) LPO.  It was therefore said that I should proceed to deal with the Summary Judgment Application.

50.For the following reasons, I refuse Mr Pirie’s application to stay the Summary Judgment Application or these proceedings on the grounds which he has advanced.

51.Firstly, as I mentioned, the Taxation Proceedings have now been adjourned pending my decision on the Summary Judgment Application.  That was fully argued before me and I have now seen fit to dismiss it for reasons that I have set out above, although I note the defendant’s admission in his open letter.

52.Secondly, I reject the defendant’s submission, as advanced in Mr Pirie’s skeleton and orally at the hearing on 13 January 2020, that s  67(2) LPO provides that there be an “automatic stay” of proceedings (such as the present proceedings) once an application for taxation (such as the Taxation Proceedings) has been filed.

53.s 67(2) LPO provides as follows:-

“Taxation of bills on application of party chargeable or solicitor …

(1) …

(2) If no such application is made with in the period mentioned in subsection (1), then, on the application of the solicitor …, or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order-

(a)  that the bill shall be taxed;

(b)  that, until the taxation is completed, no action shall be commenced on the bill, and any action already commenced be stayed:

Provided that-

(i)  if 12 months have expired from the delivery of the bill, or if the bill has been paid, or if a verdict has been obtained or a writ of inquiry executed in an action for the recovery of the costs covered thereby, no order shall be made on the application of the party chargeable with the bill except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the Court may think fit;

(ii)  if the bill has been paid, no order under this subsection shall be made where the application for the order is made after the expiration of 12 months from the date of payment of the bill.” (emphasis added)

54.Such submission was premised on a reading of the section wherein the word “may” was said to deal only with the terms of the stay to be ordered by the “court” (which under the LPO refers to the Court of First Instance), rather than as to whether the court it has a discretion to actually order the stay.  However, in my view neither Wong Kar Gee Mimi v Hogan Lovells (a firm)(unrep) HCMP 1841/2011, 25 September 2012, Master de Souza at Paragraph 39, nor the case cited therein of Clyde & Co (a firm) v Maranta Enterprises Ltd, (unrep) HCA 752/2002, 3 May 2002, A Cheung DHCJ (as he was then), supports that construction.  If anything, paragraph 39 of Wong Kar Gee Mimi clearly indicates to the contrary, referring as it does to existence of a “discretion to order taxation”.  The point appears to me to be further reinforced by paragraph 13 of Clyde & Co.  I therefore hold that when reading sub-(2) when as a whole and in context, the provision that the court “may… order” clearly creates the existence of a discretion of the Court of First Instance to decide whether to make orders pursuant to sub-(2)(a) (ie that the bill shall be taxed), and if necessary (2)(b) (including a stay pursuant to such).

55.There is therefore no basis for suggesting that there is any automatic stay created by the Taxation Proceeding and/or s 67(2)(b) LPO which would in turn form the basis of any application to stay either the Summary Judgment Application, or these proceedings.

56.Thirdly, I decline to stay the Summary Judgment Application or these proceedings, which application appears to be premised on the argument that the Taxing Master in the Taxation Proceedings will or is likely to order (as apparently submitted by the defendant, and which was contested by the plaintiff) taxation and/or a stay of this action.

57.This argument was and is premised on matters which should properly be decided by the Taxing Master in the Taxation Proceedings, which may be restored once I have reached a decision on the Summary Judgment Application.  What was apparent from the argument before me was that the Taxation Proceedings will be hotly contested by the parties.  A fully informed decision as to whether leave to tax is required, whether it should be granted and if so on what terms, and the taxation process itself, is a matter that should be dealt with in the Taxation Proceedings after relevant evidence has been filed, and submissions made based on such (eg as to inter alia the plaintiff’s charging rates, whether its bills were interim or final in nature, and whether the defendant needs to show “special circumstances” (and if so whether it has done so) pursuant to s 67(2)(b) LPO).  In contrast, the evidence before me focused on the Summary Judgment Application, in relation to which the defendant had decided to no longer pursue his allegations of negligence.

58.There was some discussion before me on such topics that might well be the subject of dispute in the Taxation Proceedings.  However, at this stage I do not think that it would be appropriate for me to effectively pre-judge, in this court, the outcome of such arguments in the Taxation Proceedings in the Court of First Instance, and to then use that view as a basis for granting a stay of or adjourn the Summary Judgment Application, or these proceedings in general.  A fortiori when the bills which the defendant seeks to tax concern legal services provided in highly contentious family proceedings over the course of around 18 months, given my conclusions on the Summary Judgment Application, and when it is now apparently open to the parties to restore the hearing of the Taxation Proceedings.

59.Since I have, for reasons set out in Section C3 above, come to the conclusion that the Summary Judgment Application should be dismissed, there is therefore no need for me to delve into whether I should adjourn the question of quantum to the Taxation Proceedings, whether by way (as Mr Pirie apparently suggested in the course of his oral submissions) of transferring the current proceedings to the Court of First Instance or otherwise.  With that said, I would observe that the question of whether this action should in fact be transferred at some point is a matter that, given the underlying objectives, might be thought to merit careful consideration by the parties.

REASONS FOR DISMISSING THE 2019 ADJOURNMENT APPLICATION

60.The defendant’s 2019 Adjournment Application was, in its final form, made after the mid-morning break on the first day of the hearing of the Summary Judgment Application and sought a general adjournment of the hearing of the Summary Judgment Application.  However, it is relevant for me to set out the events of and submissions made from earlier that morning as such are relevant to my reasons for refusing the said application.

61.At the beginning of the hearing of the Summary Judgment Application, the defendant (who as mentioned had until 2 days prior been represented in these proceedings by solicitors) made an informal oral application for what he said would be a 10-minute adjournment.  His basis for doing so was that, apparently, he needed that time to inquire with the clerk of the District Court Judge seized of the Family Proceedings as to whether she had granted the Leave Application.

62.Around an hour or so was spent arguing this informal application.  This was partly because, apart from matters which had been stated in the defendant’s skeleton and letter as set out in paragraphs 22 and 23 above, the background to and circumstances relating to such were not readily apparent to the court.  I understand that this may well have been due, at least in part, to the defendant’s apprehension about producing documents in relation to the Leave Application (which it must be recalled he filed on 13 December 2019, less than a week before the hearing) from the Family Proceedings, given the nature of the latter.  Be that as it may, the following became clear over the course of the argument.

63.Firstly, while the defendant had been acting in-person in the Family Proceedings, he had had been advised and assisted by Messrs OLN in relation to the Leave Application.  They had advised the defendant to write to the court with a letter explaining the urgency of the Leave Application.  The same firm acted for the defendant in the present action until 2 days prior to the hearing of the Summary Judgment Application.

64.Secondly, on 18 December 2019 (ie the day before the hearing of the Summary Judgment Application) the Family Court Judge had refused the Leave Application, without a hearing, by way of an order sent by fax. Her Honour’s reasoning was that:-

(1)  no last-minute applications would be entertained;

(2)  the hearing in this case had been fixed for 19 December 2019 and the defendant must have known about it for a long time;

(3)  all pleadings in this action must have already been closed;

(4)  no defence to the plaintiff’s claim in these proceedings had been disclosed and the relevance of the documents was unclear – it was inconceivable that any court would require all of the documents set out in the Leave Application.

In opposing the defendant’s informal application for an adjournment, the plaintiff also adopted and placed reliance on the matters at (1), (2) and (4) above.

65.Thirdly, after receipt of that order, the defendant had then (again with the assistance of Messrs OLN) sought to submit a consent summons to the Family Court Judge which had been endorsed by the parties to the Family Proceedings seeking, effectively, relief in terms of the Leave Application.  This had been sent to the Family Court in the evening of 18 December 2019 and an inquiry had been made with the clerk to the Family Court Judge on the morning of the hearing of the Summary Judgment Application.  Hence the defendant’s application to adjourn so that he could see if the Family Court Judge had granted the Leave Application, as was now apparently embodied in the consent summons.

66.Fourthly, the defendant accepted and was aware that he bore the burden of showing a triable issue in response to the Summary Judgment Application.  However, he had consciously chosen, pursuant to legal advice from his former solicitors (who had and continued to assist him in the Family Proceedings), not to make the Leave Application or any similar application before receipt of the plaintiff’s reply affidavit, namely P Aff 2.  Indeed he said that he had “decided to wait” for that affirmation.

67.The defendant, in further explaining why he had only made the Leave Application less than a week before the hearing, also referred to the fact that some time had been taken up by the need to rectify D Aff which was filed on 25 November 2019 pursuant to the unless order.  This was due to the missing pages issue that I have set out in paragraph 17 above.  It was also said that he had made the Leave Application, and was making this application, in good faith.

68.In response, the plaintiff submitted that as the defendant had taken advice on the matters of negligence months ago, the application was another last-minute and tactical attempt to delay the Summary Judgment Application.  The defendant for his part denied this.

69.Fifthly, the defendant had with him in-hand what he said were the relevant transcripts/extracts, inter-solicitor correspondence, and submissions and notes from the Family Proceedings that he wanted to rely on, but was seeking leave (pursuant to the Leave Application, as now apparently embodied in the consent summons) to hand them to the plaintiff’s counsel.  It was also not disputed that the plaintiff had in May 2019 provided the original pleadings and correspondence files in the Family Proceedings to Messrs Munros, who had acted for the defendant in those proceedings.

70.Sixthly, while the defendant initially submitted that he was not asking for the Summary Judgment Application to be adjourned to another day, he agreed that even if the consent summons were approved, he would need to seek leave to rely on those relevant documents in opposition to the Summary Judgment Application.  It was hence clear that the court would be effectively asked to admit last-minute evidence (the nature of which I have mentioned immediately above) in opposition to the Summary Judgment Application, and in support of the defendant’s allegations of negligence that were contained within around 30 or so pages of D Aff.

71.There was also discussion as to the possibility that such would result in the adjournment of the Summary Judgment Proceedings, as at the very least the plaintiff would require time to consider and obtain instructions based on such.  In that regard, the defendant said that the gist of such documents was already contained in the defendant’s Affidavit, and claimed that the plaintiff would not be prejudiced as the relevant transcripts and documents were already in the plaintiff’s possession.  The plaintiff for its part confirmed that it would object to any application by the defendant for leave to file new evidence (presumably in the form of an affidavit exhibiting such new documents), since the plaintiff would require time to consider those documents and would seek directions in relation to such.

72.Finally, the plaintiff submitted that producing such documents would be of questionable probative value in determining the Summary Judgment Application, when compared to documents evidencing contemporaneous complaints about the plaintiff’s services (of which it was said there were none).  However, Mr Hughes fairly accepted that if the Leave Application were granted in terms of the consent summons, it was possible that the documents which were apparently its subject would be relevant in relation to the defendant’s claim of negligence.

73.Since already an hour or so had been used out of the half-day scheduled to hear the Summary Judgment Application, and as there were issues other than negligence to be dealt with by way of the Summary Judgment Application, I suggested that the defendant could make his inquiries during the traditional mid-morning break, to which suggestion the parties acceded.

74.After the mid-morning break, the defendant returned and made the 2019 Adjournment Application for a general adjournment of the Summary Judgment Application.  It was made, he said, as the Family Court Judge had made a further order declining to grant an order in terms of the consent summons that he had submitted, hence he needed the adjournment to take further steps in relation to such.  In particular, it was said that if the 2019 Adjournment Application were granted, he would seek further legal advice from OLN (it being added by him that he was, apparently, the first summary judgment application he had ever done) and take the following steps pursuant to such:-

(1)  File a summons and a further supporting affidavit in the Family Proceedings to address issues raised by the Family Court Judge.  In relation to such, one of the bases for refusing to grant the consent summons was thatthe defendant had still not revealed his defence in this action, and it was therefore impossible to determine whether the relief sought should be granted.

(2)  Seek to obtain a hearing before the same Family Court Judge in relation to, essentially, the renewed Leave Application, and an order in such terms.

75.In support of the 2019 Adjournment Application, the defendant suggested that there was no prejudice to the plaintiff, and that it had failed to show any.  He also stated that as “very serious” allegations had been made against him in the Summary Judgment Application, any prejudice to the plaintiff was outweighed by his need to seek legal advice on the order refusing to grant the Leave Application (by way of the consent summons) in the Family Proceedings.  He referred to the interests of fairness and justice of allowing him to “properly present [his] case” in the Summary Judgment Application, which he said overrode any prejudice to the plaintiff, and said that he would be “severely prejudiced” if the present case proceeded without the Leave Application being first heard by the Judge in the Family Court.

76.In response, the plaintiff reiterated that it had been the defendant’s choice to proceed at the very last minute by making the Leave Application, and to not place (which the defendant had admitted was pursuant to the advice of solicitors) what were clearly relevant matters in relation to the present proceedings before the Judge in support of the Leave Application, such as those which would justify the relevance of Family Court documents to the present proceedings.  The plaintiff also relied on its earlier submissions as made before the mid-morning break, and pointed out that granting the 2019 Adjournment Application would be severely prejudicial to the plaintiff.  It was further said that even if there were in fact a hearing of the Leave Application and an order granted in terms, there would then have to be an application by the defendant to file further evidence in the present proceedings, and a delay would be caused of some several months at the very least.

77.Having considered the parties’ submissions, I rejected the 2019 Adjournment Application for the following reasons.

78.Firstly, since the CJR came into effect over a decade ago, the courts have been even more concerned to ensure that imminent hearings, and the progress of litigation in general, proceed as scheduled and without undue delay.  Accordingly, it is trite that it is contrary to the underlying objectives that hearings be burdened with last-minute applications that take up valuable time thereby prolonging such, potentially causing an adjournment, and increasing costs and/or the burden on court’s resources.  It is also trite that such last minute applications are contrary to the underlying objectives of dealing with proceedings as expeditiously as is reasonably practicable, procedural economy, cost-effectiveness and fairness between the parties.

79.In this case the 2019 Adjournment Application, before that the informal application for a short adjournment, and also the Leave Application (whether as originally constituted or by way of the consent summons) were all made at an extremely late stage in relation to the hearing of the Summary Judgment Application.  After all, the hearing date of the latter had been known since late October 2019.  Moreover, the effect in toto of argument in relation to such applications was to use up a substantial amount of the time that had been allocated for the hearing of the Summary Judgment Application.

80.Secondly, there would in my view have been very clear and substantial prejudice to the plaintiff if I had granted the 2019 Adjournment Application.  Such outweighed any prejudice to the defendant, not least because the latter was self-induced.  For the latter reason, I was also of the view that the defendant had not offered sufficient justification for the timing of his last-minute applications.

81.I reject the defendant’s submission that, as the evidence showed that his assets were illiquid, there would be no prejudice to the plaintiff if the 2019 Adjournment Application were granted.  I can and could see no basis for him to suggest that such somehow demonstrates no prejudice to the defendant if the hearing of the Summary Judgment Application were generally adjourned as requested in the 2019 Adjournment Application.

82.Apart from the general adjournment sought to facilitate the Leave Application, the end result sought by the defendant if I had granted the 2019 Adjournment Application would have been (assuming the defendant’s putative and renewed Leave Application succeeded) a further application by him for leave to adduce fresh evidence before me in opposition to the Summary Judgment Application.  It was apparent that this would on the whole cause a delay of, most likely, several months as regards the hearing and conclusion of the Summary Judgment Application.

83.In my view, the plaintiff would clearly be prejudiced by reason of the indefinite adjournment of the hearing of its Summary Judgment Application pursuant to the putative renewed Leave Application and (assuming such succeeded or had a reasonable prospect of success) in then having to deal with the defendant’s further mooted application to adduce fresh evidence in opposition to the Summary Judgment Application, which mooted application would depend on the outcome of the putative renewed Leave Application, and which mooted application the plaintiff had indicated it would oppose.

84.Even if all of these matters were to go in the defendant’s favour, this would inevitably cause substantial delay in the hearing and disposal of the Summary Judgment Application.  From the scope and extent of the matters covered in the defendant’s affidavit it also seemed clear that there would most likely be a substantial further impact on costs, and on the parties’ and the court’s resources, in relation to the Summary Judgment Application.

85.Moreover, on the evidence before me the defendant had clearly chosen not to make the Leave Application until very close to the hearing.  Hence any prejudice that he might suffer, if the late adjournment applications were to be refused, was self-induced. After all:-

(1)  The defendant was legally represented until shortly before the hearing and had the assistance of the same solicitors in the Family Proceedings.  He was aware that the burden was on him to show triable issues (including as to negligence if so desired) as a ground to resist the Summary Judgment Application, as served on his solicitors in mid-September 2019.  Indeed he also admitted after the mid-morning break that he had been working on his defence and counterclaim from at least September 2019, even before he received the Summary Judgment Application.  The defendant had also had at least a significant proportion of such documents since May 2019, and in any event he would clearly also have had all relevant documents in his possession, at the very least by the time he had filed D Aff (pursuant to an unless order) in late November 2019.  In D Aff he had sought to set out significant amounts of detail (albeit without the underlying documents) in apparent support of the relevant allegations.

(2)  In D Aff, the defendant had also made it clear that he was aware that he was unable to exhibit documents filed in the Family Proceedings without leave of that court.  He had even said he would list relevant documents in his List of Documents and would seek such leave “at the appropriate time”.  Indeed at the hearing before me, he further emphasised that he was particularly concerned not to produce underlying documents without leave of the Family Court Judge as in May 2018, and in the course of the Family Proceedings, he had apparently become acutely aware that disclosure without leave might give rise to contempt proceedings.

86.It was therefore clearly incumbent upon the defendant to take, and he knew that he should have taken, relevant steps to seek to adduce all such relevant evidence which he wished to rely on at the hearing of the Summary Judgment Application.  This was particularly so if (as he claimed) the Summary Judgment Application was a “very serious” matter and such underlying documents were “highly relevant” to such.  Such steps would clearly have included obtaining, or at least attempting to obtain, an order in good time pursuant to an application such as the Leave Application, so that he could then seek to rely on such evidence to oppose the Summary Judgment Application.

87.However, the evidence before me did not suggest that the defendant was unable to make the Leave Application any earlier, whether with reasonable diligence or otherwise.  Rather, it was clear that the defendant chose – having been advised on the matter – not to make the Leave Application until after receipt of the plaintiff’s reply affidavit, and in any case chose not to do so during the approximately 2 months between the Summary Judgment Application being served on him in mid-September 2019 and the filing of D Aff in response thereto.  It was his own choice and delay in doing so that led to his last-minute adjournment applications before me, which were meant to enable his putative application to adduce such documents in evidence (if the putative renewed Leave Application were to succeed), all of which would inevitably and materially delay the hearing of the Summary Judgment Applications.

88.Further to such, I also did not accept that the defendant’s need to take steps to rectify the “missing pages” from D Aff sufficiently justified or explained his delay and timing in making the Leave Application (which in turn affected the related and similarly belated adjournment applications before me) or if and insofar as is necessary that such incident was somehow relevant to such delay/timing.  The “missing pages” incident and matter was resolved by way of an order made[8] before the receipt of P Aff 2, which the defendant had said he had “decided to wait” for.

89.Given the above, it was also clear that the defendant would have had, at the very least, substantial difficulty in meeting the relevant and trite threshold of “exceptional circumstances” in relation to his putative contemplated application to file and rely on new evidence in opposition to the Summary Judgment Application.  Granting the 2019 Adjournment Application to facilitate that further application was also therefore highly unlikely to serve, and on the contrary would be far more likely to fly in the face of, the underlying objectives.

90.In light of the above, I did not need to and for present purposes do not express any firm view on the plaintiff’s submission that the defendant’s adjournments as sought were merely tactical attempts to delay the Summary Judgment Application.

CONCLUSION AND ORDERS

91.I therefore order that:-

(1)  the plaintiff’s Summons dated 17 September 2019 (that is, the Summary Judgment Application) be dismissed; and

(2)  the applications made by the defendant to stay the Summary Judgment Application and/or this action be dismissed.

92.As to costs I make the following orders:-

(1)  An order nisi that the costs of the plaintiff’s summons dated 17 September 2019 (ie the Summary Judgment Application), which shall include the costs of the defendant’s applications made on 13 January 2020 (ie the LPO Application), be in the cause of HCMP  2285/2019, with certificate for one counsel, pursuant to which the court has taken into account the following:-

(a)  There were substantial submissions and argument by both parties on the law and the evidence in relation to the plaintiff’s summons, in relation to which judgment was reserved.

(b)  The defendant has admitted that he is liable to pay the plaintiff’s firm’s fees, once they are taxed in HCMP 2285/2019.

(c)  The commencement, progress, and scope of in HCMP 2285/2019.

(d)  The timing, nature, and bases of the defendant’s proposals/applications as made in January 2020.

(e)  Hong Kong Civil Procedure 2020 paragraph 14/7/1; Sin Yuk Hung v Sin Tung San, unrep HCA 474/2013, 20 February 2014; Greater China Capital Inc v Gbtimes Ltd [2018] 1 HKLRD 210 (CA), and unrep., HCA 1455/2015, 29 August 2017; Worldcap Investment Ltd v Bosswell Estates Ltd [1988] HKC 328.

(2)  An order nisi that the costs of the defendant’s application as made on 19 December 2019 (ie the 2019 Adjournment Application) to adjourn the plaintiff’s summons dated 17 September 2019 be to the plaintiff, to be taxed if not agreed.

(3)  Such costs orders nisi are to be made absolute if no application to vary the same is made within 14 days.

93.In that regard the court notes that the defendant’s applications as made on 19 December 2019 consumed approximately 1 hour of hearing time before the mid-morning break, and approximately 20 minutes thereafter.

94.Lastly, I thank the parties and their counsel for their assistance.

Mr Sebastian Hughes, instructed by CRB, for the plaintiff

The defendant appeared in person on 19 December 2020. 

Mr Nicholas Pirie & Mr Thomas Martin, instructed by Oldham, Li & Nie, for the defendant on 13 January 2020

Annex 1

Extracts from the Defendant’s Open Letter dated 7 January 2020 

“1.  The Hearing on the 13^th January 2020 does not override [the Defendant’s] rights to have [the Defendant’s] bills taxed pursuant [to] [s. 67(2) LPO] – [the Defendant’s] facts falling into a Class 2 Case, as [the Defendant’s] last bill was less than 12 months before the issuance of the [Taxation Proceedings] were issued on 12^th December 2019. i.e. 8 months. There is a call over on the 14^th January 2020, in [the Taxation Proceedings] i.e. one day later than the adjourned Order 14 adjourned (sic) hearing.

2.  Thus quantum of your firm’s fees become subject to taxation as the last bill was part of a continuous series of bills, and the taxation will have to take place in the High Court before a Taxing Master as Quantum becomes at large.

…

7.  I am advised in any event there are 2 relevant special circumstances in this case, that obviously present themselves. These are the fact that your firm has issued proceedings well within the limit of 12 months, and could amount to oppressive conduct, and that there is now a Section 67 Originating Summons extant, making the Quantum at large…

8.  I am advised therefore to propose terms to have the Order 14 Summons stayed as follows:

A.  To admit liability to pay the Plaintiff’s Firm fees, subject to the Quantum being assessed by the Taxing Master;

B.  That the Hearing for Quantum be adjourned over into the High Court Miscellaneous Proceedings HCMP 2285 of 2019 in any event;

C.  That I as the Defendant be at liberty to set off my Counterclaims and my claims in Negligence against the Plaintiff firm, against the quantum of fees assessed to be payable by the Taxing Master, if not otherwise agreed; and

D.  There be no Order for Costs after the 12^th December 2019.

I am prepared to enter into a Consent Order in the terms set out in Paragraph 8 hereof to avoid the hearing on the 13^th January 2020, and to have the Quantum adjourned over by consent to the 14^th January 2020 also by consent to be dealt with by the Taxing Master in the High Court in [the Taxation Proceedings].”

Portions of Mr. Pirie’s skeleton submissions

“…

26.  D kindly invites the Learned Judge to record his admission that he is liable to pay some of the P’s bill of costs subject to the provisos stated in the Letter of the 7^th of January.

27.  D. suggests this disposal because any other disposal asked for by the P (i.e. summary judgment) cannot be ordered where the action is stayed by the operation of statute.”