Gilbert Henry Collins v. Alan Lam, Yam & Pe (A Firm)

DCCJ 1555/2019

[2020] HKDC 1016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVL ACTION NO 1555 OF 2019

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BETWEEN

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DECISION

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INTRODUCTION

1.This judgment concerns 3 summonses by the plaintiff dated 30 July 2019, but which were apparently only filed on 23 August 2019.  They sought the following orders, and associated costs orders:-

(1) Orders relating only to the interests payable to, and costs of, a summons (“the Admission Summons”) that the plaintiff, pursuant to RDC O 27 r 3 and this Court’s inherent jurisdiction, be at liberty to enter Judgment against the defendant for the sum of HK$120,320.50 (“the Sum”)[1], and interest, based on the defendants’ admission in the Defence and in the Formal Admission filed on 21 June 2019 (“Admission Application”).

(2) Summary judgment under RDC O 14 and this Court’s inherent jurisdiction for an order that:

(a) the defendant do pay to the plaintiff the sum of HK$113,000 and interest thereon; and

(b) there be an account of “all further sums due to the plaintiff pursuant to the Agreement”;

(collectively, the “Summary Judgment Application”)

as contained in what I shall refer to as “the O14 Summons”.

(3) Determination under RDC O 14A and this Court’s inherent jurisdiction:

(a) As to whether the defendant’s email to the plaintiff dated 22 September 2015 (“the Sept 2015 Email”) is collateral to the Agreement dated 31 October 2015, and if so and in accordance with RDC O 14A(1)(b) to “finally determine the [defendant’s] defence” as to the plaintiff’s claim for the return of the balance of the security deposit in the sum of HK$113,000 and to enter judgment for that amount in favour of the plaintiff;

(b) That the Agreement dated 31 October 2015 be constructed “in so far as necessary” to determine the issue in (a) above; and

(collectively, the “Collateral Application”)

(c) As to whether because of legal professional privilege (“LPP”) the defendant is entitled to withhold disclosure of information on bills rendered and costs collected by the defendant aside from those already disclosed to the plaintiff (“the LPP Application”);

as contained in what I shall refer to as “the O14A Summons”.

BACKGROUND

2.The defendant is a firm of Hong Kong solicitors, of which Mr Alan Lam is a sole proprietor.

3.After discussions between the parties in September 2015, in or around late October 2015 the parties entered into a Consultancy Agreement (“the Agreement”, as it is also referred to in the pleadings). Pursuant to the Agreement, the plaintiff was, between 6 January 2016 and 5 January 2017, retained by the defendant as a Consultant (as also defined within the Agreement). Clause 2 of the Agreement[2] provides that:-

“[The defendant] will retain the Consultant [i.e. the plaintiff] and [the plaintiff] will carry out the Works the respective or agreed Scale Rates for [the defendant] in respect of the [defendant’s] clients or [the plaintiff’s] clients from the Commencement Date until this Agreement is terminated pursuant to the terms and conditions contained herein.”

4.In relation to the specific applications before me, in summary the parties’ cases are as follows.

5.The parties disagree as to the operation of the Clauses of the Agreement, relating, in particular, to the fee-sharing arrangement and the security deposit of HK$150,000 (“the Security Deposit”) provided by the plaintiff to the defendant.

6.The plaintiff suggests (including via his plea in his Statement of Claim) that the Agreement merely guaranteed that the defendant would receive HK$600,000 per annum (“the Guaranteed Amount”) (i.e. HK$50,000 per month (“the Monthly Amount”)) from the agreed fee shares referred to within the Agreement, and that he agreed to provide the Security Deposit (“the Security Deposit”) to guarantee payment of the first 3 Monthly Amounts.  On the basis of that construction, he says that he is hence entitled to the return of the full deposit of HK$150,000 because the plaintiff has performed his guarantee to pay the defendant the Guaranteed Amount per annum.  In that regard, the plaintiff also relies on the Sept 2015 Email written by the defendant, to which matter I shall return below.  Accordingly, the Statement of Claim seeks payment of HK$86,000 and HK$3,000 that he says are due and owing to him as fee shares under the Agreement, the HK$150,000 paid as the security deposit, and an account of all further sums due to him pursuant to the Agreement.

7.The defendant says that under the Agreement, the plaintiff agreed to contribute not less than HK$50,000 as the “Guaranteed Minimum” per calendar month (as opposed to HK$600,000 to be calculated on an annual basis) and that calculations of the respective entitlements were to be made on a monthly basis.  It is also said that the defendant was at liberty to deduct any shortfall to the Guaranteed Minimum per calendar month for any particular month from the Security Deposit, which in any event was not meant to cover only the first 3 Monthly Accounts.  According to this interpretation, the defendant says it was entitled to and did deduct a total of HK$113,179.50 from the Security Deposit since there were 5 months within 2016 during which the plaintiff generated less than HK$50,000 for the defendant.  Further, upon termination of the Agreement the plaintiff would only be entitled to a return of the remaining Security Deposit (in the amount of HK$36,820.50).  However, the defendant admits that on its construction of the Agreement, it is liable to pay the plaintiff the Sum (i.e. HK$120,320.50) which is comprised of the remaining balance of the Security Deposit (HK$36,820.50 as already mentioned), as well as the sum of what it said was the remaining entitlement of the plaintiff under the Agreement (HK$83,500).

8.The defendant has raised other arguments relevant to the Summary Judgment Application and the Collateral Application, which at this stage can be summarised as being that the Sept 2015 Email (or indeed any pre-contract correspondence) is not relevant, premised on the rule against admission of parol evidence, and a denial that the plaintiff is entitled to rely on pre-contractual email communications and/or on any collateral agreement by reason of inter alia Clauses 14 and 15 of the Agreement, which are said to be entire agreement clauses.  It is also said by the defendant that even if the correspondence is somehow relevant, it should be read in context and in any event does not support the plaintiff’s claims.  The defendant also relies on estoppel, since the plaintiff had apparently signed monthly income statements during his time with the defendant, in which the plaintiff was made aware of but did not object to the plaintiff deducting shortfalls from what was said to be the Guaranteed Minimum per calendar month of HK$50,000.00.

9.The defendant had also pleaded that the plaintiff was not entitled to the account of all “further sums”.  In short, LPP was relied on to resist disclosure of certain bills and costs relating thereto. It was also pleaded that the plaintiff was not entitled to be paid under the Agreement for bills rendered or costs collected by the defendant after the plaintiff left the defendant’s employment on 5 January 2017.

10.On 21 June 2019, the defendant filed an admission under RDC O 13A r 5 that it was liable to pay the Sum as a liquidated amount to the plaintiff in satisfaction of the latter’s entire claim.  In mid-July 2019 (at around which time the plaintiff’s affidavit was sworn) the defendant also paid into court HK$123,320.50 and filed Voluntary Particulars mentioning that that payment in comprised the Sum and an additional HK$3,000 (said to be a rounding-off of interest in excess of the actual interest payable on HK$120,320.50, which amount the defendant had calculated at judgment rate from the date of the writ on 27 March 2019 until the notional date of payment into Court on 15 July 2019), and averring that the plaintiff was hence not entitled to any costs or interest.  The defendant also issued a notice of sanctioned payment in relation to the said HK$123,320.50, which it said covered part of the plaintiff’s claims, namely for the Sum and the extra HK$3,000 interest as mentioned above.

11.The plaintiff’s 3 summonses, although dated 30 July 2019, were then apparently only filed on 23 August 2019.  On 31 July 2019, he also filed a notice indicating that he did not accept the defendant’s admission to pay the Sum under RDC O 13A.

12.On 20 September 2019, and pursuant to the Admission Application, Registrar Lui gave partial judgment against the defendant for the Sum pursuant to RHC O 27 r 3.  The learned Registrar also adjourned the hearing of the plaintiff’s summonses (albeit given his order in relation to the Admission Application, only the outstanding issues of interest and costs) to be heard before a Judge in Chambers.  That was the hearing which took place before me in December 2019.

13.The defendant indicated in paragraphs 16 and 17 of its skeleton for the hearing that in relation to the LPP Application as part of the O 14A Summons, it would “no longer rely on the LPP ground” to refuse to disclose to the plaintiff “billings of some clients referred by the [plaintiff] to the [defendant]”.  I will hence only deal with the LPP Application at the end of this judgment when it comes to relief, and in considering the costs of the O 14A Summons.

DISCUSSION: SUMMARY JUDGMENT AND COLLATERAL APPLICATIONS

(1) The relevant principles

14.In relation to RDC O 14A as relied on in relation to the Collateral Application, there was no dispute that I may determine a question of law or construction of a document at any stage where it appears that the question is suitable for determination without a full trial of the action, and where such determination will finally determine (subject to appeal) the entire cause or matter, or any claim or issue therein, and that upon such determination I may dismiss the cause or matter or make such order or judgment as I think just.

15.In relation to the Summary Judgment Application, the defendant referred to paragraphs 10 to 17 of Maintek Computer (Suzhou) Co Ltd. v Blue Anchor Line & ors (unreported, HCAJ 106/2008, 2 April 2013, To J) and to paragraph 20 of Lai Fat Kwong v Cheung Wai Yin [2007] HKCU 1269, which set out of the following trite principles, none of which were disputed by the plaintiff:-

(1) the plaintiff has to show that his case comes within the order and that in his belief there is no defence except as to the amount of damages claimed, and once the hurdle is passed, the burden shifts to the defendant to satisfy the court why judgment should not be given against him;

(2) the defendant may show cause by way on the merits such as by showing he has a good defence to the claim, a difficult point of law is involved, 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;

(3) the O 14 procedure is for clear cases with no serious material factual dispute and, if there is a legal issue, then no more than a crisp legal question as well decided summarily as otherwise – the procedure is inappropriate where the plaintiff’s entitlement to recover any sum is the subject of serious dispute whether of law or fact;

(4) unless it is obvious that the defence put forward is frivolous and practically moonshine, summary judgment out not to be applied;

(5) when hearing the application, the court must not embark on a mini trial on affidavits;

(6) the issue is not whether the defendant’s assertions are to be believed, but whether those assertions are believable;

(7) if the court has suspicions concerning the plaintiff’s case, the correct course of action is to give the defendant unconditional leave to defend so that all matters can be ventilated at trial; and

(8) (per Lai Fat Kwong) if there is a triable issue, it is not desirable that the court express a view on the strengths or weaknesses of the parties’ cases or the other grounds relied on.

16.In relation to the claim for an account pursuant to the Summary Judgment Application, the plaintiff also mentioned RDC O 43 and sought by way of his skeleton submissions (albeit not in the summons containing the Summary Judgment Application) directions whereby the defendant would have to verify the account by an affidavit exhibiting the account, to be lodged and served, and a direction for payment thereafter.  For her part, counsel for the defendant cited Hong Kong Civil Procedure 2020 Vol 1 §14/4/13, which principles were not disputed by the plaintiff, and which say in summary as follows:-

(1) leave to defend should be given where there is a reasonable ground for an inquiry or account in order to ascertain the amount recoverable;

(2) judgment may be given for the total sum which may be found to be due on account, where it is clear that there is no defence as to that part, with unconditional leave to defend as to the balance; and

(3) it is open to the court, when it makes an order for an account to be taken and for payment of the amount found to be due, to make an order for an interim payment of such amount as it thinks just.

(2) The main issues relating to the Summary Judgment Application and the Collateral Application

17.The HK$113,000 that the plaintiff seeks pursuant to the Summary Judgment Application and the Collateral Application is comprised, it is said, of the allegedly “forfeited” (by the defendant) amount under the Security Deposit, to which the plaintiff says there is no defence, but which the defendant says (see paragraph 7 above) it was entitled to retain.

18.The plaintiff says that the Summary Judgment Application claims for an account of the defendant’s fees received from clients both before and after the plaintiff had left the defendant on 5 January 2017, pursuant to the alleged effect of Clauses 2 and 4 of the Agreement.

(3) Relevant Clauses of the Agreement

19.Clause 1.1 of the Agreement[3] provides inter alia as follows:-

““gross legal fees” means the aggregate of all billed fees… on a receipted basis on all files accountable to the efforts of the [Plaintiff] either in procurement of business and/or in the actual performance of the Works by the Consultant charged at the Scale Rates”

…

““Scale-1 charges” means 70% of gross legal fees on a receipted basis on all files or clients where clients are BOTH (1) brought into [the defendant] or business brought about unequivocally through the efforts, introduction or connections of the [plaintiff] AND (2) whose works are substantially performed and handled by the [plaintiff] generally in accordance with clause 3.1.2.. albeit with the assistance of the staff of the [defendant] in a supportive and administrative role;

“Scale-2 charges” means 30% of gross legal fees on all files whose clients are brought in or about unequivocally by or through the efforts or connection of the [plaintiff] BUT the Works of which are substantially performed by the staff of [the defendant] but requires some minimum support by the [plaintiff] in a technical, advisory or communication role;

“Scale-3 charges” means 20% of gross legal fees on a receipted basis on all files and matter which are brought into [the defendant] by or through the unequivocal efforts of the [plaintiff] but the Works of which are handled completely by [the defendant] technically with the involvement of the [plaintiff] limited to procurement and reporting to client or cursory follow-up with client on further instructions and progress only;

“Scale-4 charges” means 30% of total legal fees charged by [the defendant] (excluding out-of-pocket expenses, counsels’ fees and other disbursements) on [the defendant’s] clients for whom the Works are partially performed by the [plaintiff] or jointly with the other staffs or principals of [the defendant];

“Scale-Rates” means any combination of Scale-1 to Scale-4 charges”

“Works” means attendances, conferences, meetings advice, assistance, professional services (in legal, commercial, administrative and other aspects) which are usual and reasonably expected to be provided by a practicing solicitor to his firm and/or client(s) in respect of the particular matter or case being handled by [the Defendant]”.

20.Clause 1.3 of the Agreement provides:-

“Headings in this Agreement are for ease of reference only and do not form part of this Agreement.”

21.I have already set out Clause 2 of the Agreement at the beginning of this Judgment.

22.Clause 4 of the Agreement[4] provides inter alia as follows:-

“For the Works that the [plaintiff] is entitled to claim payment at the respective Scale Rates, payments will be payable in arrears during the last calendar week of the immediate following calendar month for all bills settled by clients in the previous calendar month.

…

4.2 The [plaintiff] further agrees to use his best endeavors to ensure that the aggregate of the gross legal fees referred to under Clause 4.1 above shall not be less than $2,000,000.00 per calendar year and as a security and performance pledge to [the defendant], the [plaintiff] agrees not to contribute not less than HK$50,000.00 (“the Minimum”) per calendar month towards and as his irrevocable minimum guaranteed contribution to [the defendant] regardless of his gross legal fees. In the event and circumstances that the gross legal fees of [the plaintiff] results in [the defendant] being entitled to receive more than $50,000.00 per month according to the Scale Rates, [the defendant] shall be entitled to the higher amount of the Minimum or the proportionate entitlement based on the Scale Rates.

4.3 Notwithstanding the above fees split arrangements, [the defendant] agrees with [the plaintiff] that the excess of [the defendant’s] entitlement based on the Scale Rates over and above $600,000.00 per year or pro-rated for any shorter duration shall only be paid over or otherwise accounted back to [the defendant] at the expiration of the 12-months period from the Commencement Date or early termination of this Agreement as long as and to the extent that the [plaintiff] will pay the Minimum to [the Defendant] every month.

4.4 As a further security to [the defendant] upon signing of this Agreement, the [plaintiff] agrees to deposit with [the defendant] the amount of HK$150,000.00 to secure the due performance of the conditions and terms herein contained which deposit may be applied by [the defendant] in full or partial payment of the Minimum anytime the gross legal fees of the [plaintiff] does not exceed the Minimum for any month. Thereafter the depletion of the Deposit, the [plaintiff] shall only be entitled to payment of his share of entitlement at the Scale Rates after deduction of the Minimum for each month.”

23.Clause 11[5] provides inter alia as follows:-

“11.1 Each party may terminate this Agreement:-

…

(ii) after expiration of the Probation Period, by three (3) months’ notice to the other party provided that no notice of termination shall be served by either party until expiration of nine (9) months from the Commencement Date or in the case of the [plaintiff] wishing to early terminate after expiration of nine (9) months, by forfeiting the Minimum to [the Defendant] in lieu of the 3 months’ notice and

(iii) but if for whatever reasons [the plaintiff] seeks to terminate this Agreement after signing and does not commence Works on the Commencement Date, the Deposit will be absolutely forfeited to [the defendant].

11.2 Upon termination of this Agreement by [the defendant] [the plaintiff] shall only be entitled to refund of that part of the deposit (if any) which has not been deducted to meet the Minimum for each and every month from the Commencement Date to the date of termination.

11.3 No termination by either party shall affect or exonerate [the defendant] from payment of any of the Scale fees accrued and payable to [the plaintiff] under Clause 4 above.”

24.Clauses 14[6] and 15[7] of the Agreement, which are said by the defendant to be relevant to the issue of a collateral agreement and/or there being an entire agreement clause, provide inter alia as follows:-

“14.1 The parties hereto acknowledge and agree that this Agreement sets out all remuneration, benefits and moneys payable by the [defendant][8] to [the plaintiff] in respect of the employment and all matters related to the employment, and that [the plaintiff] shall have no claim and expressly waives any claim whatsoever against [the defendant] save and except as specifically provided for in this Agreement.

14.2 This Agreement supersedes any previous agreement between the parties in relation to the employment and the parties acknowledge that no claim shall arise in respect of any agreement so superseded by this Agreement.

15.1 Any variation to this Agreement shall be binding only if it is recorded in a document signed by all the parties.”

(4) The Agreement: The HK$113,000 in relation to the Summary Judgment Application and the Collateral Application

25.The plaintiff’s stance was as follows.

26.It was said that as a matter of construction, Clauses 4.1 to 4.4 should be interpreted commercially, such that if at the end of the year he had satisfied his HK$600,000 minimum contribution for that year, any deduction made during that year for any certain month(s) from the Security Deposit should be returned into the Security Deposit.  The plaintiff also placed reliance on Clauses 11.1 and 11.2, the latter of which he said should also be interpreted generously and highlighted that the term “forfeit” was only mentioned in this Clause.  He said that both Clauses envisaged an annual account, and compared the situation to a tenant renting a property who would be entitled to the return of the deposit at the end of the lease. It was submitted that what was envisaged was that the plaintiff, having put his money where his mouth was, would get it back if he performed his part of the agreement, which matter was to be determined on an annual basis given Clauses 4, 11.1, and 11.2 of the Agreement.

27.In support of such submissions, the plaintiff placed reliance on the commercial nature of dealings between two experienced solicitors and his need to build up a billing base for the first 3 months.  It was submitted that I should reject what he said was the defendant’s literal interpretation of the Agreement in relation to the Security Deposit, which Agreement he also said should be construed contra proferentem as it had been drafted by the defendant.

28.The plaintiff also placed reliance on the Sept 2015 Email.  In his Statement of Claim, he pleaded:-

(1) at paragraph 8 under the heading “Particulars of fee share” that “the defendant clarified the operation of the fee share in [the Sept 2015 Email] as particularised below” and then set out various portions of the Sept 2015 Email which included 4 “examples”, which can be read from the document but which in the interests of concision I have not set out in this judgment;

(2) at paragraph 9 that:-

“The particulars of fee share above are collateral to the Agreement and explain the operation of the fee sharing arrangements referred to in paragraphs 4.1 to 4.4 of the Agreement”

(3) and at paragraph 10 after referring to the date of the Agreement and Clauses 14 and 15 thereof, said:-

“… the [plaintiff] relies on the representations referred to in the “Examples” within the Sept 2015 Email as particularised in paragraph 8 above to the effect that the [plaintiff] should not pay more than the agreed shares in those examples and should not pay additional amounts to those agreed shares on the basis of a period of 1 year regardless of default in the Monthly Amounts as long as the same are made good which in the event they were. The [plaintiff] claims such representations made by the [defendant] as referred to above in so far as necessary to prove the [plaintiff’s] claim was a term of the Agreement or a term of the Agreement as varied.”

29.In his affirmation in support of his applications, the plaintiff had also mentioned that from the exhibits thereto[9]:-

“… although the agreement makes it clear that the only terms of the [Agreement] are those contained in the [Agreement] itself does not in my respectful submission exclude a collateral agreement or collateral material made prior to the [Agreement]… ”

and later that:

“… it is clear from the defendant’s own e-mails[10] that there was a collateral agreement to which the finalised agreement was subject”.

30.However, in his oral submissions, the plaintiff said (at least in relation to the applications before me) that the statements in the Sept 2015 Email were not a provision of the Agreement, negotiation, assurance, or collateral agreement, but rather an “example” of how the Agreement would work/operate, a representation of the fee share that governs the Agreement, and/or “clarified” the Agreement.  It was also submitted that the parol evidence rule (as relied on the defendant) was irrelevant as the Sept 2015 Email did not contradict the terms of the Agreement, and that Clauses 14 and 15, when properly interpreted in light of the authorities of Chitty on Contracts, 33^rd Edition §13-117[11], Glory Gold Limited v Star Play Development Limited, unreported, CACV 246/2007, 31 January 2008 and Inntrepreneur Pub Co v East Crown Ltd [2000] All ER (D) 1100[12] did not have the effect of preventing him from relying on the Sept 2015 Email.  It was also submitted in his skeleton submissions (citing Hoyt’s Proprietary Ltd v Spencer [1919] HCA 64) that Clause 14 of the Agreement does not exclude such representations which are designed to clarify the terms of the Agreement.  The plaintiff also referred me to Lewison, Interpretation of Contracts, 6^th Edition at pp105-107, and while fairly citing the portion of the latter which states the trite principle that “Evidence of pre-contractual negotiations is not generally admissible to interpret the concluded written agreement”, went on to submit that as the same goes on to state that such pre-contractual negotiations are admissible to elucidate the general object of the Agreement, the Sept 2015 Email was hence admissible as such an elucidation since it was an example of how the contract would operate.  He also submitted that in any event, to succeed in the present applications he did not need to establish that the Sept 2015 Email contained an actionable representation (or misrepresentation) or indeed a term/collateral agreement to, or variation of, the terms of the Agreement.

31.Pursuant to a further inquiry with the plaintiff at the hearing as to the basis on which he sought a determination, via the Collateral Application, that the Sept 2015 Email was “collateral”, the plaintiff stated that he was not asking the Court to determine that the Sept 2015 Email was a collateral agreement. Rather, he said that it was “collateral” to the Agreement insofar as it (being a representation) did not contradict it.

32.The defendant disagreed. It was submitted  (citing Henderson v Arthur [1907] 1 KB 10) that the plaintiff’s suggestion that the Sept 2015 Email could be relevant and admissible to assist in interpreting and clarifying the operation of the Agreement as that would contravene the parol evidence rule which prevents evidence being admitted of previous negotiations or agreements dealing with the same subject matter.  It was further said that the subject matter for fee splits were explicitly dealt with in the Agreement, and in construing it no assistance was required from any collateral matters.  Ms Kong further emphasised that Clauses 4.2, 11.2 clearly set out the monthly basis and amount of HK$50,000, and it was pointed out that the plaintiff had signed acknowledgments for various months in 2016 acknowledging that there were deductions from the Security Deposit (although the plaintiff appeared to have suggested in his evidence and submissions that he might have done so subject to his intention to seek a year-end accounting, and/or reversal of such deductions at the end of his first year with the defendant).  It was also submitted that there was nothing in the Agreement, which had been reached pursuant to negotiations between 2 experienced solicitors, to the effect that any deductions from the Security Deposit would be “paid back” or somehow reversed.

33.The defendant also submitted that the Sept 2015 Email did not fall within the suggested exception in Lewison of an aid to elucidate the object of the Agreement, and was hence inadmissible.  Rather and in context the subject email, which was said to be simply a broad-brush answer to a very general question which was devoid of detail, was inadmissible as it was a general pre-contractual discussion/negotiation.  It was also said in relation to the plaintiff’s submissions on Clauses 14 and 15 of the Agreement that an entire agreement clause would not prohibit another party from introducing a collateral agreement insofar as the subject was not covered in the principal agreement, but that in this case the subject had been covered in Clause 4.3 of the Agreement, and in any event that Clauses 14 and 15 in this case operated to prevent such a claim based on an alleged “representation” of the sort relied on by the plaintiff (notwithstanding that such Clauses do not include the word “representation”).

34.The defendant also mentioned in relation to the Summary Judgment Application in particular that liability (both in relation to the HK$113,000 and the claim for an account in relation to post-termination fees as examined in more detail below) would depend on the construction of the Agreement, and that the plaintiff would only be entitled to succeed if I found that the defendant’s construction were untenable, which of course the defendant said it was not.

35.For the following reasons, I decline to accede to the plaintiff’s Summary Judgment Application in relation to payment to the plaintiff of the sum of HK$113,000 and interest thereon, and also decline to grant the Collateral Application.

36.Firstly, and in relation to the Summary Judgment Application, the defendant has in my view raised a serious and real dispute, and triable issues, which it would be inappropriate for me to decide summarily, namely whether and why the Agreement should be interpreted in line with the defendant’s construction such that it is entitled to deduct and retain from the Security Deposit the HK$113,000 which the plaintiff claims.  In other words, I find for present purposes that the construction placed on the Agreement by the defendant to support its entitlement is not frivolous or untenable.

37.I would observe without going into unnecessary detail that I have had regard to the contents of the Agreement (and in particular Clauses 4 and 11 thereof) as concluded between two experienced solicitors, and that there are material, triable issues as to whether the Sept 2015 Email is admissible for the purposes of interpreting the Agreement in the manner contended for by the plaintiff to support his claim for the HK$113,000.  Such issues arise from the contents, context, and timing of the Sept 2015 Email (including it being one of a series of conversations between the parties), the parol evidence rule, the inclusion and effect of Clauses 14 and 15 of the Agreement, and whether the plaintiff is seeking to rely on such as evidence of pre-contractual negotiations in order to interpret the concluded written agreement in his favour (which evidence per Lewison would be generally inadmissible) rather than for the purpose of elucidating the object of the Agreement.

38.In reaching this conclusion I have primarily approached the matter with reference to the plaintiff’s stance that he relies on the contents of such email as a collateral “representation” which somehow “clarified” and does not contradict the Agreement, but which is also not said to be a collateral agreement (see paragraphs 30 and 31 above).  However, and for the avoidance of doubt, the same considerations are also relevant, and a triable issue would also arise, if and insofar as the plaintiff suggests for the purposes of the Summary Judgment Application that the Sept 2015 Email was a collateral agreement, varied the Agreement, or amounted to some sort of misrepresentation (the latter of which does not appear in any event to have been pleaded).

39.Secondly, and in relation to the Collateral Application, it is trite that relief under RDC O 14A requires that the question of law or construction to be determined should be stated or formulated in clear, careful and precise terms so that there is no difficulty, obscurity, still less any ambiguity, about what is the question that has to be determined, and that this is all the more important as the determination will be final. In the present case, as is evident from the contents of the Collateral Application and the matters recorded at paragraphs 28 to 31 above, the question(s) of law or construction on which the plaintiff seeks determination do not meet such criteria.  I do not think it would be appropriate to finally determine the Collateral Application in his favour given the multiple ways in which the term “collateral” has been used so far within these proceedings.  A fortiori when the sense in which the term “collateral” is used is crucial to the remainder of the Collateral Application.

40.Thirdly, even if I am wrong as to the above, and were for the purposes of the Collateral Application to restrict such question only to the plaintiff’s narrowed interpretation of the word “collateral” as I have summarised in paragraphs 30 and 31 above (i.e. excluding other possible cases, such as that the Sept 2015 Email was a “collateral agreement”), I still do not think it would be appropriate for me to determine that issue, nor to construe the Agreement to determine that issue. This is because I do not see that my doing so would finally determine the defendant’s defence to the HK$113,000 claim per RDC O 14A(1)(b) RDC:-

(1) I have mentioned several issues relating to the admissibility of the Sept 2015 Email in Paragraph 37 above.  Further to such and for the purposes of the Collateral Application I focus purely on the point arising from the citation from Lewison and would observe that on the matters presently before me, the character of the Sept 2015 Email appears to be more consistent with it being pre-contractual negotiations which the plaintiff seeks to rely on to interpret the concluded written agreement (which are generally inadmissible), rather than pre-contractual negotiations for the purposes of elucidating the general object of the Agreement (which would be admissible).  Hence, even if I were to determine that the Sept 2015 Email was somehow “collateral” in the limited sense contended by the plaintiff at the hearing, it would not be admissible in relation to the construction of the Agreement. I also do not see how Hoyt’s Proprietary Ltd v Spencer assists the plaintiff in relation to this issue.

(2) Even if the Sept 2015 Email is “collateral” in the limited sense apparently relied on by the plaintiff, and is admissible/relevant in evidence (presumably on the basis that it merely elucidates the object of the Agreement), I cannot see how such would finally determine the defendant’s defence to the plaintiff’s claim for HK$113,000 which reflects the deductions made from the Security Deposit.  The said email and “examples” set out within by the defendant might, if taken at their highest, suggest that an annual accounting should be carried out between the parties in relation to fees.  However, they do not, on a fair reading, conclusively or finally support the plaintiff’s understanding/interpretation (or indicate one directly contrary to that advanced by the defendant), namely that the Agreement requires that the defendant’s entitlement to make monthly deductions from the Security Deposit for every relevant calendar month (per Clauses 4 and 11.2 of the Agreement) is also subject to their being “paid back”/reversed to the plaintiff as part of that annual accounting (or period on a pro rata basis if such is said to be relevant) in the event that the plaintiff’s overall billings for that year (or pro rata basis if such is said to be relevant) exceeded the minimum agreed billing threshold.  Or put another way, that as part of the annual accounting there be a payment back/reversal of prior monthly deductions.

41.Fourthly, and while in light of the above such observations are strictly speaking obiter, I further note that the Defence contains, in response to the claim for HK$113,000, allegations of certain facts said to be relevant to a pleaded issue of estoppel (see paragraph 8 above), which issue was raised by the defendant at the hearing.  It does not appear that there has been a Reply filed in response to such, but in any event the plaintiff’s evidence failed to deny that he had signed such monthly receipts.  Rather, he merely pointed to the exhibited receipt for the month of October 2016 (apparently signed and dated by him after notice of termination of the Agreement had already been served by the defendant on the plaintiff in around mid-October 2016) and seemed to somehow try and qualify his signature by pointing to his handwritten comment thereon (which apparently reads “Ada can you give me the cumulative update”) and averring that such comment “in itself indicates the lack of proper accounting”.  It also appears from the documents before me that he had signed such monthly receipts at least up to and including that particular document. In my view, I would therefore have to consider the issue of estoppel, and not simply whether the Sept 2015 Email is “collateral” (even in the limited sense now relied on by the plaintiff) in order to “finally determine” the defendant’s defence in relation to the HK$113,000.  However, I have not been asked by the plaintiff to consider or determine the issue of estoppel, and in any event I do not see that I am currently seized of all of the relevant facts that would enable me to resolve that issue.  I would hence, and in any event, decline to exercise my residual discretion to decide the “collateral” issue pursuant to RDC O 14A.

42.Fifthly, I note that there were certain submissions made by the plaintiff, apparently in relation to the Summary Judgment Application as a whole, that I should find the defendant’s evidence incredible.  In particular, the plaintiff’s evidence and submissions alleged that the defendants’ pleading and evidence in relation to the dispute over the HK$113,000 were “incredible” and “unbelievable” and that the falsity of such was confirmed.  The plaintiff also criticised the defendant’s credibility on the basis of other documents in the bundle, apparently submitting that the defendant had in his affirmation made unsubstantiated and/or exaggerated criticisms of the plaintiff when compared to the actual contents of a witness statement signed by the plaintiff’s former client, and exhibited to the defendant’s affirmation.  It was also said that the defendant, despite being a solicitor with the usual attendant expectations, was now apparently resiling from his earlier stance as expressed in correspondence, including that dated late 2016 and March 2018, as to the plaintiff’s entitlement for sums due and owing to him (although the plaintiff clarified that he was not for the purposes of the hearing advancing a case of estoppel premised on such).

43.However, for the purposes of the Summary Judgment Application in relation to the HK$113,000 I do not think I can or should summarily reach such conclusions on the evidence before me as to the defendant’s credibility, or bear such in mind when dealing with this particular part of the Summary Judgment Application.  The first such criticism above arises from the parties’ conflicting interpretations of Clauses 4.2 to 4.4 (amongst others) of the Agreement.  This is primarily a matter of law in relation to which, as discussed above, the defendant has raised triable issues. I do not see that such matters justify a finding that the defendant’s evidence and case are incredible.  The second criticism does not seem to be material to this portion of the Summary Judgment Application, let alone one that should be conclusively resolved in favour of the plaintiff at this stage without a trial. As to the third, and regardless of how I have later dealt with it in relation to the portion of the Summary Judgment Application seeking an account, I do not see how that should affect the matters above concerning the construction of the Agreement in relation to the fee split, which as I have mentioned above would seem to be primarily a matter of law. Insofar as may be necessary, I also do not see how such issues relate to the Collateral Application, let alone determine it decisively in the plaintiff’s favour.

(5) The Agreement: Summary Judgment Application in relation to the claim for an account

44.This application seeks an account of “further sums due to [the plaintiff] pursuant to the Agreement”.  Those further sums are, the plaintiff says, his scale-fees payable by the defendant to him under the Agreement, both before and after the plaintiff had left the defendant on 5 January 2017.  The main issue is whether the defendant has established that there are reasonable grounds for an inquiry or account in order to ascertain whether there are any such amounts recoverable.

45.As regards fees payable after he had left the defendant, the plaintiff relied on his construction of Clauses 2, 4 (including 4.3) and 11.3 of the Agreement, as well as the definition of “Gross Legal Fees” in Clause 1.  It was highlighted that Clause 11.3 survived the termination of the Agreement (as did Clauses 10.4 and 12 which concern confidentiality and restrictive covenants).  It was said that, when properly construed, he should be given summary judgment for an account of such fees as several relevant clients had been introduced by him to the defendant.  The plaintiff also submitted (in relation to the LPP Application which point the defendant subsequently abandoned via Ms Kong’s skeleton) he was not asking for documents covered by client privilege, but rather for accounting information, which the defendant was obliged to disclose. An account should therefore be awarded in relation to his entitlement both up until his departure on 5 January 2017, and also for amounts he was entitled to be paid thereafter.

46.In support of his submission that there were amounts allegedly payable and his basis for an account, the plaintiff’s reply affirmation (but not his original affirmation) had also suggested that while the defendant’s accounting information claimed that HK$80,500 (out of the sum of HK$120,350.50 awarded by the Admission Application) had been paid to the defendant after he had parted ways, the plaintiff was “confident some were paid before” he had departed, and relied on this to suggest that the defendant should still give “a full and transparent accounting thereof” notwithstanding the entry of the Admission.  He further alleged in his evidence (albeit mainly, if not entirely, in his reply evidence) and also at the hearing that the defendant’s stance in relation to certain other clients and the pre-departure and post-departure split was incredible, that the defendant had “not been truthful”, and that the account should therefore be ordered.  As I have already mentioned, I was also referred to certain correspondence from late 2016 and March 2018 which the plaintiff said the defendant had resiled from, and which were said to reflect poorly on the defendant’s credibility.

47.The defendant’s Defence, which does not appear to have had the benefit of Ms Kong’s involvement, had suggested that there was no basis for an account as the plaintiff had prepared his own bills and was aware of his entitlements due to inter alia monthly entitlement calculation sheets/commission receipts signed.  It also relied on the point raised by the LPP Application, which point as I have said Ms Kong conceded in her skeleton.

48.In its evidence the defendant also denied, in summary, that there were any issues with either pre-departure or post-departure entitlement.  The defendant submitted that it had paid all of the defendant’s pre-departure entitlement to Scale Rates, and also submitted that he was not entitled to be paid any amount for work done post-departure.  In support of post-departure entitlements Ms Kong pointed to the Agreement, in particular Clauses 2, 4, and 11.3 thereof, as well as the definitions of “Scale Rates”.  She submitted that on their (and indeed any) commercial construction, and given the definitions of “Scale Rates”, the plaintiff could not possibly be entitled to be paid (and hence to an account) on work carried out after his departure from the defendant.  Rather, the Agreement had the effect of ensuring that the plaintiff was only entitled to a share of such Scale Fees/Scale Rates while the plaintiff was with the defendant and was contributing the Minimum thereunder.  It was also contended that the effect of the plaintiff’s interpretation of the Agreement would be to create some sort of life interest on his behalf.  The defendant did not, however, submit that the nature of the plaintiff’s allegations (which I have summarised in paragraphs 46 and 52 of this judgment) in relation to this part of the Summary Judgment Application rendered RDC O 14 inapplicable.

49.For the purposes of the Summary Judgment Application and on the material before me, I find that there are reasonable grounds for ordering an inquiry or an account, and that I should not grant the application.  Bearing in mind its nature, my reasons (without going into unnecessary detail) are as follows.

50.Firstly, in terms of “further sums” allegedly due to the plaintiff post-departure, in my view the defendant has raised credible arguments in relation to the construction of the Agreement.  These are mentioned in Paragraph 48 above.  It would therefore be inappropriate for me to grant summary judgment to determine the matter in the plaintiff’s favour.

51.Secondly, insofar as it appears to be open to me to order an account only of “further sums” in the nature of the plaintiff’s pre-departure entitlements[13], I find that there are, similarly, reasonable grounds for an inquiry or account to ascertain such amounts recoverable.

52.As I mentioned above, the plaintiff’s case that he is entitled to an account for pre-departure “further sums” is apparently premised on allegations (the majority if not all of which appear to have been first clearly advanced in the plaintiff’s reply affirmation) that the defendant has “not been truthful” as to his evidence in relation to such sums.  In particular, what was apparently alleged both in the evidence and at the hearing was that I should order an account of “further” pre-departure sums payable under the Agreement as the plaintiff had been deprived or short-changed by the defendant, who had issued bills post-departure in relation to pre-departure work, and/or understated the amounts billed and paid.

53.Ms Kong during the hearing submitted a table to the Court which reflected her instructions in relation to disputed costs/plaintiff’s entitlement to the Scale Rates, in particular on what the defendant said had been paid by clients, and what then been paid to the plaintiff on what date, and which she submitted demonstrated that all of the amounts to which the plaintiff was entitled pre-termination had been paid.  I inquired with the plaintiff and he did not object to the production of the table, but instead indicated that he would instead address me on its contents in the course of his submissions, in particular on the portions of which he said were inaccurate and unbelievable, which he did.

54.Having heard the parties and taking into consideration all of the matters before me, including the relevant principles relating to summary judgment for an account, I do not find that the defendant’s evidence and case in relation to the following, material matters is incredible or unbelievable so as to amount to moonshine, and hence so as to justify an order for summary judgment instead of leave to defend. Without going into unnecessary detail:-

(1) I do not presently see any material inconsistency as alleged in the defendant’s stance in the table relating to a client with the initials “SA”.

(2) As for the client with the initials “HD”, the defendant’s case was that while the bill had been issued pre-departure, no fees were due and owing to the plaintiff as the latter had had “zero involvement” in the case, and that it hence fell outside the Scale Fees/Scale Rates regime as defined in the Agreement.  In that regard I note that it was not disputed that while the plaintiff had introduced the clients to the defendant, the transaction in question concerned conveyancing, which matters the plaintiff did not handle and would have hence been handled by the defendant.  It was also not apparently suggested that the defendant had contributed any work on the matter, other than the initial introduction. There are therefore reasonable grounds to ascertain whether such amounts are recoverable.

(3) On the whole, and having regard to the above and the remainder of the plaintiff’s allegations when considered alongside the contemporaneous documents, I do not see that I should find, at this stage and without a trial, that the defendant acted in the manner apparently alleged as set out in Paragraphs 46 and 52 above and that the defendant’s defence/evidence in relation to any pre-departure entitlement should be rejected as being incredible or unbelievable.

55.I therefore decline to grant summary judgment to the plaintiff for an account of any “further sums” due to him as requested in the Summary Judgment Application, whether such sums are in the nature of pre-departure or post-departure entitlements under the Agreement.

56.The plaintiff had also suggested only in his skeleton, and not prior, that the issue of whether he is entitled to “an account of [the defendant’s] fees of [the plaintiff’s] clients” post-departure could be determined (presumably in his favour) under RDC O 14A, apparently by construing Clauses 2 and 4 of the Agreement.  However, even if I were to assume that the issue is formulated in sufficiently careful, clear, and precise terms, I decline to summarily determine the point at this stage under RDC O 14A, given the circumstances in which the argument was raised, and the conduct of the hearing whereby neither party sought to press the point either way.  Moreover, even if I were to finally determine the issue in the plaintiff’s favour, it seems from the matters before me that there would be no great saving of time and costs, as the taking of an account would still require that the parties resolve at least the factual disputes set out in Paragraphs 46 and 52 above, which can and should also be more appropriately dealt with at one go.

(6) Disposal of the Summary Judgment Application

57.The defendant suggested in its skeleton that I should grant unconditional leave to defend.  It was orally suggested that I should dismiss the Summary Judgment Application, with reference being made to the discussion in relation to the HK$113,000.

58.I decline to dismiss the Summary Judgment Application, but would instead grant the defendant unconditional leave to defend.  In doing so I have had regard to the principles cited, the somewhat haphazard manner in which the underlying issues pursuant to the Summary Judgment Application appear to have been ventilated, and that it was not suggested by either party that any leave granted should be the subject of any conditions.

DISCUSSION: INTEREST AND COSTS OF THE ADMISSION APPLICATION

59.In the Admission Summons and Admission Application, the plaintiff had sought an order that he be at liberty to enter judgment against the defendant for the sum of HK$120,350.00, and interest thereon at P+1% from 31 January 2017 until Judgment, or at a rate based on ss. 49 and 50 of the District Court Ordinance (CAP 336) (“DCO”).

60.I have summarised other relevant features of how the matter developed at Paragraphs 7 and 10 to 12 above, including how the defendant had calculated the Sum.  Further to such, the plaintiff’s skeleton submitted that although the defence dated 20 June 2019 admitted that HK$120,320.00 was payable, it had never been paid to him.  It is also said that such amount must have been payable from 31 January 2017, that being the date of the defendant’s accounts showing what sums were said by the defendant to be due between the parties as at that date.  It was also submitted in relation to interest that the usual interest on a debt (which the Sum was said to be) would be judgment rate from the date on which the cause of action arose (which the plaintiff said was 31 January 2017), until the date of judgment.  The plaintiff submitted in his skeleton that he had calculated interest “as at 2 December 2019” as being HK$25,106.00.  However he did not set out the underlying calculations.  Reference was made to the defendant having allegedly “not disputed interest at 8% p.a.” , apparently on the basis that the defendant’s Voluntary Particulars dated 15 July 2019 specified that his payment into court included interest calculated at judgment rate from the date of the writ (see paragraph 10 above).  However, the rate of Prime + 1% was sought by the plaintiff in the Admission Application and is the rate usually ordered in relation to pre-judgment interest.

61.The defendant in its skeleton submitted that upon the defendant’s departure, the plaintiff had “never disputed” that the Sum was payable to the plaintiff and had invited the plaintiff to so confirm/accept it since February 2017.  Reference was also made to correspondence exchanged in 2017 and 2018 since then, it being said that the plaintiff had invited the defendant to accept the Sum and subject the remaining disputed amount to arbitration, which the plaintiff had refused.  It was submitted that the plaintiff should have accepted the defendant’s offer as partial settlement, rather than issuing the Admission Summons which (the plaintiff submitted) was only apparently to pursue interest.  The defendant therefore denied that it was its fault that the plaintiff had taken time to receive his fees and the part-refund of the Security Deposit.  It was hence submitted that given the opportunities for the plaintiff to accept the Sum, interest should not be awarded as since per s 49 DCO interest is not paid to punish the defendant, but only paid as compensation for a plaintiff who has been deprived of the use of money due to him.  It was similarly said that the Admission Summons was therefore unwarranted and a waste of the parties and the court’s resources, and that the plaintiff should therefore be ordered to pay the defendant’s costs in relation thereto.

62.In particular, Ms Kong in her oral submissions submitted for the defendant that it was, apparently, common ground that the Sum had been admitted as being due since, at least, 27 April 2017.  It was said that the plaintiff had therefore never kept the defendant out of the Sum but rather that it had acted reasonably in making a proposal to pay such sum to the defendant as of 27 April 2017, and to “sort out the rest later” (albeit that it was clear to me on a fair reading of the correspondence that “the rest” was limited to the remainder of the Security Deposit) by way of an arbitration.  I was also taken to further correspondence with the defendant dated March 2018 which made an offer to pay the Sum “in full and final satisfaction of all entitlements and claims [the plaintiff] may have against [the defendant] arising from the Agreement” etc.  I also note that the plaintiff had in February 2018 sent the defendant a draft statement of claim (which was not placed before me) in the course of correspondence.

63.The plaintiff submitted that the offers were all not unequivocal, or rather were conditional, in nature.  It was further said that the letter of 24 April 2017 made an impossible offer, as payment of the Sum was in “full and final satisfaction of all claims” he had against the defendant (including his claim for an account) and also required him to undertake to pursue a client in relation to some apparently outstanding fees, to which he could not agree so as he had been and was of the view that such sums should not be paid to the defendant (and which bill the said client had subsequently applied to be taxed).  Similarly, as to the 27 April 2017 letter, he emphasised that such (which did not include a term relating to his other client) continued to relate only to the Security Deposit.  Finally, he pointed out that he had not, actually, been paid, as the Sum (plus HK$3,000 interest which I mention next) had been paid into court only as a sanctioned payment rather than directly to him.  It was also said that the additional figure of HK$3,000 interest as paid into court by the defendant was erroneous since (as accepted by Ms Kong at the hearing) interest should run from the date on which the cause of action accrued.

64.On the whole, I consider that this is an appropriate case for me to exercise my discretion to award the plaintiff pre-judgment interest on HK$117,320.50 out of the Sum, which interest totals $19,162.35 by my calculation and covers the period from 1 February 2017 until 20 September 2019.  I also further adjourn the question of pre-judgment interest on the remaining HK$3,000.00 to the trial of the action, save that there be liberty to apply in relation to such order (including for directions and to vary such) at the hearing of the first Case Management Summons or at any subsequent Case Management Conference. Finally, I also award the plaintiff post-judgment interest at judgment rate on the Sum until full payment.  My reasons and the relevant breakdown are as follows.

65.Firstly, there was no apparent obstacle to the defendant actually paying (which it did not) the plaintiff the Sum, which the defendant had admitted was due.  However, while the defendant admitted that it was liable to pay the plaintiff the Sum in the 2017 and 2018 correspondence, all of its offers were conditional, and essentially required that receipt of the Sum would be acknowledged to be in full and final settlement of all claims in relation to the Agreement.  Even if the plaintiff’s allegations underlying his claim for an account were only advanced from around 5 March 2018 onward, the fact remains that the plaintiff was hence deprived of the use of his money.

66.Secondly, it is presently not possible for me to ascertain whether the period for which pre-judgment interest should run on the remaining HK$3,000 out of the Sum should begin on 31 January 2017 (as contended by the plaintiff) or from a later date (as contended by the defendant).  That issue depends on resolving a factual dispute between the parties in relation to the plaintiff’s claim for an account of pre-departure sums, which topic I have touched on at Paragraph 54(3) above.  It is therefore more appropriate for pre-judgment interest on this sum to be dealt with once the relevant underlying facts have been finally determined by the court, and hence presumably at trial, even if the final amount (and the difference in the parties’ positions) is likely to be de minimis.

67.Thirdly, for the period from 1 February 2017 until judgment was given on 20 September 2019, I have applied the usual pre-judgment rate of P+1% (6%) per annum, to the sum of HK$117,320.50, pursuant to which I have calculated interest at HK$19,162.35.  I see no reason, and the defendant did not suggest any other than those set out in paragraphs 61 and 62 above, why interest should not run during that period at that rate (which is the rate requested in the Admission Application).  However, for the period from 27 March 2019 to 20 September 2019, I do not think it appropriate to rely on and apply (as the plaintiff apparently did) the judgment interest rate of 8% or thereabouts used by the defendant in his Voluntary Particulars as being “not disputed”, much less conceded, by the defendant.  For while those Voluntary Particulars also explicitly stated that while the amount of HK$3,000 is interest calculated based on judgment rates, they also stated that it was paid into court “as an ex-gratia payment and for the sake of producing an expeditious and prompt settlement”.

68.As to post-judgment interest on the Sum, I see no reason why I should depart from the usual judgment rate.

69.As to costs of the Admission Application, while there is an outstanding issue in relation to pre-judgment interest on HK$3,000 out of the Sum, that amount and any difference in the parties’ cases is likely to be de minimis.  I therefore consider, bearing in mind the CJR and proportionality, that the plaintiff has in substance succeeded in relation to the Admission Application and that he should be entitled to his costs thereof.  I hence make an order nisi to reflect such a finding, which order I have set out below.

CONCLUSION AND ORDERS

70.In relation to the matters contained in the SJ Summons, I therefore grant the defendant unconditional leave to defend as to the matters contained in the Summary Judgment Application.

71.As regards the matters contained in the O 14A Summons, I dismiss the plaintiff’s Collateral Application.  For the LPP Application, as I have set out at paragraph 13 above, Ms Kong has conceded that the defendant would not rely on LPP to resist disclosure of certain bills.  Given the context of the LPP Application, such concession must refer to and include those bills identified in Paragraph 18(d) of the Defence and Counterclaim.  In view of that concession and given the issues before me, I therefore do not find it necessary to make an order, and hence make no order, as to the plaintiff’s LPP Application, but would observe that such concession should be recorded as part of the preamble to my order dealing with the O 14A Summons in case it becomes relevant at some point in these proceedings.  I will also reflect that concession in my orders as to costs below.

72.In relation to the costs of the O 14 and O 14A Summons, I make orders nisi that:-

(1) the plaintiff do have his costs of paragraph 3 of the O14A Summons (i.e. the LPP Application), such costs to be summarily assessed and to be disposed of on paper; and

(2) the costs of the O 14 Summons and the costs of the remainder of the O 14A Summons be in the cause.  I grant certificate for counsel in relation to both sets of costs.

73.In doing so I have taken into account the following matters:-

(1) The plaintiff has substantially succeeded in relation to the LPP Application, which issue was only conceded in Ms Kong’s skeleton submissions;

(2) While the defendant has substantially succeeded in relation to the remainder of the O 14A Summons (i.e. the Collateral Application), there was significant overlap in relation to the issues raised in relation to that and the O 14 Summons, and there apparently remain various extant issues of both fact and law that are common to both and which remain to be determined at trial; and

(3) There were substantial submissions and argument, pursuant to which judgment was reserved.

74.As for the Admission Summons, I make orders as to pre-judgment and post-judgment interest as set out in Paragraph 64 above.  I also make an order nisi that the plaintiff do have his costs of the Admission Summons, to be summarily assessed and disposed of on paper.

75.I also order that such orders nisi shall be made absolute if no application to vary the same is made within 21 days hereof.  I will hand down further directions in relation to the paper disposal in relation to any orders that are made absolute by such method.

76.Lastly, it falls to me to thank both the plaintiff, and counsel for the defendant, for their assistance.

The plaintiff appeared in person

Ms Cindy Kong, instructed by the defendant