Chow Lily v. Chow Wai Wai Violet and Another

HCAP 22/2019

[2025] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

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DECISION

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INTRODUCTION

1.There are 3 summonses before this Court:

(1)  The plaintiff’s summons filed on 14 February 2025 for further expert directions (“the plaintiff’s Expert Summons”);

(2)  The defendants’ summons filed on 12 June 2025 for extension of time to exchange further witness statement (“the defendants’ Time Summons”); and

(3)  The defendants’ summons filed on 27 June 2025 for numerous directions (“the defendants’ Miscellaneous Summons”).

THE RELEVANT BACKGROUND

2.The directions sought by the parties are case management directions.  In my view, the following background is relevant and would affect the Court’s exercise of its case management powers.

3.This action was commenced in 2019.  The plaintiff filed her Statement of Claim on 9 July 2019, and the defendants filed their Defence and Counterclaim on 7 November 2019.  The main issue which the Court has to resolve in this action is the validity of a will purportedly made by the Deceased in October 2015 (“the 2015 Will”).

4.Pursuant to expert directions given by Master Yee and Master Hui on 16 February 2022 and 28 April 2022 (“the Masters’ Expert Directions”) respectively:

(1)  The defendants were granted leave to file and serve Professor Raymond Cheung’s expert report (“Professor Cheung’s Report”) on:

“i Expert’s opinion and assessment on the mental state and condition of the Deceased during the following specific period : -

(a) 1 April 2015 to 29 October 2015

(b) 30 October 2015 to 8 January 2016

(collectively ‘the specific periods’).

ii. During the specific periods, expert’s opinion and assessment on whether the Deceased was mentally fit and capable of carrying out the following activities: -

(a)  […]

(b)  […]

(c) Preparing a testamentary note distributing his assets and properties upon death and making of a will in late October 2015; in relation thereto, whether the Deceased

(i) was capable of understanding the nature of the acts of writing a testamentary note and making a will and their effects;

(ii) was capable of understanding the extent of the property of which he was disposing by those documents; and

(iii) was able to comprehend and appreciate the claims to which he ought to give effect by those documents;

[…]”

(2)  The plaintiff was granted leave to file and serve a Rebuttal Expert Report within 90 days after the defendants’ filing of Professor Cheung’s Report;

(3)  The parties’ experts were required to meet and prepare a joint expert report.

5.The defendants filed and served Professor Cheung’s Report on 12 May 2022.  Therefore, the plaintiff should have filed her Rebuttal Expert Report by 10 August 2022. 

6.On 10 July 2023, Master Matthew Leung made an unless order (“the Unless Order”), and required the plaintiff to file and serve the Rebuttal Expert Report of Professor Helen Chiu by 4pm on 31 August 2023.

7.The plaintiff eventually filed Professor Helen Chiu’s expert report (“Professor Chiu’s Report”) on 28 August 2023.

8.Subsequently, the joint statement of Professor Cheung and Professor Chiu was filed on 16 November 2023.

9.At the Initial Case Management Conference held on 1 February 2024, this Court directed the parties to file and serve their respective certificates for estimation of time together with a table of availability of trial counsel by 6 March 2024.  This Court further indicated that it would set the case down on paper and fix the trial dates and pre-trial review accordingly.

10.By virtue of the said certificates, the plaintiff and the defendants gave an estimated time of 20.5 days (inclusive of 3 days for closing submissions) and 7.6 days (inclusive of 4 – 5 hours for closing submissions) respectively.  In other words, as far as evidence is concerned, the estimation of the parties was that it would take a total of around 24.1 days[1] to finish.

11.In light of the busy schedules of the senior counsel engaged by both sides, the trial was at the end of the day fixed on 8 March 2024 to be heard from 26 May 2026 to 30 June 2026 (a total of 25 days[2] for evidence) and 8 – 9 September 2026 (a total of 2 days for closing submissions).

12.On 10 May 2024, the plaintiff took out a summons (“the Undue Influence Amendment Summons”) to amend her Re-Re-Amended Statement of Claim.  In a gist, by virtue of the proposed amendments, the plaintiff sought to introduce an additional ground of undue influence in her attempt to set aside the 2015 Will.

13.The call-over hearing of the Undue Influence Amendment Summons was heard on 7 June 2024, at which the defendants’ counsel indicated that the plaintiff’s application would be opposed.  While the trial was still around 2 years away at the time, this Court expressed concerns that pleadings were still not finalised 5 years since the commencement of this action.  This Court therefore enquired with both sides as to whether counsel’s advice had been given on whether further applications for amendment of pleadings would be required to be made.  Upon such enquiry, both sides gave an undertaking that no further application for amendment of pleadings would be made herein. As a result, this Court made an express order that no further application for amendment of pleadings may be made by the parties in this action.

14.The Undue Influence Amendment Summons was then fixed to be argued on 9 October 2024.  At the hearing, the defendants’ counsel argued that, if the proposed amendments were allowed, there would be a risk that the trial cannot finish within the scheduled time.  To answer this question, leading counsel for the plaintiff, inter alia, accepted that in the event the Court has to cut down the time for cross-examination so as to fit in the first period of 25 days (during which the witnesses are examined), the Court should cut down the time available to the plaintiff’s counsel first because such reduction of time is necessitated by the plaintiff’s late introduction of a new issue.

15.By a Decision handed down on 30 October 2024, this Court allowed the Undue Influence Amendment Summons.  It was further ordered, among other things, that:

(1)  Leave be granted to the defendants to make consequential amendments to their Re-Re-Amended Defence and Counterclaim filed on 27 July 2021;

(2)  Parties shall exchange their respective witness statements covering matters relating to the amendments on undue influence only.

16.Pursuant to the above order, the defendants filed and served their Re-Re-Re-Amended Defence and Counterclaim on 17 February 2025.

17.However, the defendants had not been able to exchange their further witness statements covering the plaintiff’s case of undue influence.  As a result, extensions of time had to be sought from and granted by this Court.  The latest application was made by virtue of the defendants’ Time Summons.

18.As aforesaid, the plaintiff filed a summons for further expert directions on 14 February 2025.  Pursuant to this summons, the plaintiff sought to adduce the expert report of Dr Robert Ho (“Dr Ho’s Report”).

19.The defendants initially opposed this application.  However, by a letter dated 18 June 2025, the defendants’ solicitors changed their stance and stated that:

“[…]

We are instructed that our clients no longer oppose the Expert Summons. We shall require more time to consider the consequential directions in relation to the Expert Summons and we shall provide you with our proposed directions in due course.

All of our clients’ rights are hereby expressly reserved.”

20.However, the parties could not agree on the consequential directions as proposed by the defendants, who therefore took out the defendants’ Miscellaneous Summons.

THE PLAINTIFF’S EXPERT SUMMONS

21.By virtue of the plaintiff’s Expert Summons, the plaintiff asked for, inter alia, the following expert directions:

“Leave be granted to the Plaintiff to adduce, file and serve within 7 days from the Order made herein, the medical report of Dr Ho Ting Kwok Robert dated the 13^th day of February 2025 (‘Dr Robert Ho’s Report’) […] addressing the precise issues as follows: -

i. Expert’s opinion and assessment on the mental state and condition of the Deceased during the following specific periods : -

(a) 1 April 2015 to 29 October 2015

(b) 30 October 2015 to 8 January 2016 (collectively ‘the specific periods’).

ii. In studying, examining and analyzing the MRI Images and existing medical reports on the Deceased, which have already been disclosed by the parties hereto, Dr Robert Ho’s opinion and assessment on whether the Deceased was mentally fit and capable of carrying out the following activities during the specific periods: -

Preparing a testamentary note distributing his assets and properties upon death and making of a will in late October 2015; in relation thereto, whether the Deceased

(a) was capable of understanding the nature of the acts of writing a testamentary note and making a will and their effects;

(b) was capable of understanding the extent of the property of which he was disposing by those documents; and

(c) was able to comprehend and appreciate the claims to which he ought to give effect by those documents.”

22.The application was supported by the 18^th Affirmation of Fenn Kar Bak Lily, in which it was deposed that:

“3. A Rebuttal Medical Expert Report prepared by Psychiatrist, Professor Helen Fung Kum CHIU (for the Plaintiff) was filed on the 28^th August 2023 (‘Professor Chiu’s Report’), pursuant to Paragraphs (2) and (3) of the Order made by Master Kent Yee on Medical Expert Evidence dated the 16^th day of February 2022 (‘Order of Master Kent Yee’). During and after the preparation of Professor Chiu’s Report, Professor Chiu indicated to us that there were many (over 4,000) MRI scan images on the brain of Dr. Chow Yei Ching (‘the Deceased’) taken from the year 2010 to 2015. However, her medical training in psychiatry did not equip her with adequate knowledge and expertise in studying, interpreting and analysing in detail the MRI scan images of a patient’s brain, which would be highly relevant to determine the cognitive functions and mental capacity of a patient.

[…]

4. In this regard, we have instructed Neurologist Dr. Ho Ting Kwok Robert (‘Dr. Robert Ho’) to supplement Professor Chiu’s report and prepare an independent medical report, for the benefit of the Court. Dr. Robert Ho’s report provides a more in-depth account and summary of the Deceased’s medical conditions, specifically his neurological status, for the period from February 2010 to December 2015. Dr. Robert Ho’s Report gives an in-depth and comprehensive analysis, by comparing and contrasting various MRI images of the Deceased’s brain, taken in July 2010 and August 2015 respectively. As a result, Dr. Robert Ho opines that the Deceased was suffering from Cerebral Amyloid Angiopathy (‘CAA’) from 2010 to 2015 […] Besides, Dr. Ho also compares and contrasts the Deceased’s Cerebral Small Vessel Disease (‘CSVD’) progression from the MRI scan images of the Deceased’s brain taken in July 2010 and August 2015. […] Therefore, it is necessary to call Dr. Robert Ho, as a medical expert witness, to give evidence at the trial to assist the Court.

5. Besides, Dr. Robert Ho also offers his comments and rebuttal on the Medical Report of Professor Raymond Cheung (for the Defendants), filed on the 11^th May 2022 […]

6. […]

7. In the circumstances, Dr. Robert Ho’s Report is necessary to supplement Professor Chiu’s Rebuttal Medical Expert Report […]

8. Specifically, the issues mentioned in Paragraph 7 above are already encompassed in Paragraphs (2)(i) and (2)(ii)(c) of the Order of Master Kent Yee, as well as the Medical Report of Professor Raymond Cheung.  Therefore, Dr. Robert Ho’s Report serves to supplement Professor Chiu’s Rebuttal Medical Expert Report, and is probative to determining the mental capacity of the Deceased when the 2015 Purported Will was allegedly made.”

23.Before I discuss the merits of the plaintiff’s application, I would deal with the question of whether the defendants’ solicitors had in fact indicated that they won’t object against the plaintiff’s Expert Summons.

24.For this purpose, I should refer to the letter of the defendants’ solicitors dated 18 June 2025.  The relevant part thereof had been quoted in [19] above.

25.Mr Benjamin Yu SC submitted on behalf of the defendants that the defendants’ indication was only made on the basis that the reasonable and necessary case management directions proposed by the defendants would not be objected to, because the “no objection” stance and the consequential directions should be considered as a “package”.  Therefore, he said, in the circumstances where the plaintiff did not agree to the defendants’ proposed directions, the defendants should not be described as having changed their stance as such.

26.With greatest respect, I disagree, because it is clearly stated in the said letter that the defendants “no longer oppose the Expert Summons”.  There was no indication that such a stance would hinge upon the plaintiff’s agreement to the consequential directions to be proposed by the defendants.

27.Be that as it may, while the defendants’ stance might affect the Court’s exercise of discretion on costs, this Court is not bound by the consensus reached between the parties when case management directions are made, even though such consensus, if any, would be one of the factors which should be taken into account. 

28.In the present case, even though it has at one stage been agreed between the parties that further expert directions should be given as per the plaintiff’s Expert Summons, this Court would depart from such consensus.  The reasons are set out below.

29.First, a comparison of the expert issues defined under the Masters’ Expert Directions (see [4] above) and the expert issues as proposed in the plaintiff’s Expert Summons (see [21] above) would reveal that the plaintiff is in fact minded to adduce expert evidence on the same expert issues under the Masters’ Expert Directions, even though she is now trying to deal with those same issues from a different angle – by asking her new expert (Dr Robert Ho) to compare the MRI images of the Deceased’s brain taken in 2010 and 2015 respectively.  In my view, she should have produced Dr Ho’s Report pursuant to the Masters’ Expert Directions.  In other words, she should have done so pursuant to the Unless Order, which she did not.  In such circumstances, before the plaintiff is allowed to adduce Dr Ho’s Report, she should apply for relief from sanction, which she has not done so. 

30.Second, even if there is no requirement that Dr Ho’s Report should be adduced within the time limit as per the Unless Order, it is undeniable that the present application has been made extremely late, and there is no acceptable explanation given by the plaintiff.

31.According to Ms Fenn, the plaintiff’s solicitor, Professor Chiu had “during and after the preparation of Professor Chiu’s Report”[3] indicated to the plaintiff’s solicitors that there were many (over 4,000) MRI images on the brain of the Deceased taken in 2010 and 2015, but she did not have the expertise to study, interpret and analyse in detail those MRI images. 

32.In her 20^th Affirmation, Ms Fenn also stated that since September 2023, she had approached a few neurologists for the purpose of preparing an expert report.  However, none of them agreed to take this task up for personal reasons.  Ms Fenn then mentioned that, in July 2024, she approached Dr Robert Ho, who declined to take up this appointment because he was too busy.  It was only in November 2024 that Dr Ho finally agreed to be appointed in the present case. 

33.Such an explanation for delay is simply unacceptable:

(1)  It should not take long for the plaintiff’s solicitors to approach neurologists and ask them to accept appointment as an expert.  The plaintiff’s solicitors have simply failed to explain why they were unable to locate a single expert who was willing and available to take up this appointment even with due diligence for 14 months (September 2023 – November 2024);

(2)  The plaintiff’s solicitor did not state how many neurologists they had approached since September 2023.  She only stated that she had approached “a few”.  That is certainly not enough.  If she did not spend enough effort in looking for a willing and available expert, then the plaintiff should bear the consequence;

(3)  There is no explanation as to why, upon Dr Robert Ho’s rejection in July 2024, the plaintiff’s solicitors did not look for someone else immediately (there is no evidence that they had done so);

(4)  Ms Fenn’s explanation also contradicts the plaintiff’s Listing Questionnaire filed on 18 January 2024 (which she herself signed), in which it was not mentioned at all that the plaintiff was in the course of looking for a neurologist as an additional expert.

34.The delay on the part of the plaintiff has caused great difficulty in terms of case management because the trial date has been fixed for a long time and it is important to make sure that the trial would not over-run (see further below).

35.The plaintiff’s solicitors now try to shift the blame to Professor Cheung.  They accused him for, among other things:

(1)  not making specific reference in his expert report to any analysis of the MRI images taken in August 2015 when he came to his conclusion on the Deceased’s mental capacity;

(2)  “evading or ignoring” those MRI images, and simply opined that it was not necessary to conduct any mental state examination on the Deceased in 2015;

(3)  failing to produce or exhibit any MRI images of the Deceased’s brain taken in 2015;

(4)  failing to do any detailed analysis of the impact of the stroke which the Deceased suffered in 2015 on his cognitive functions.

36.The plaintiff’s solicitor (Ms Fenn) also alleged that:

(1)  Had Professor Cheung referred to the plethora of MRI scanned images of the Deceased’s brain taken in August 2015 in his analysis, it would have been necessary for the plaintiff to instruct a neurologist to view, examine and analyse those images in the Rebuttal Medical Expert Report to be prepared;

(2)  Neither the plaintiff nor herself had any knowledge or information that the Deceased had had a stroke in August 2015, let alone the massive body of information and MRI scanned images of the Deceased taken in August 2015, and it was not until August 2023 that Professor Chiu drew her attention specifically to the fact that the Deceased had had a stroke in August 2015, and that there were a lot of MRI scanned images.

37.I regret to say that these points are made to be rejected:

(1)  Ms Fenn’s explanation is self-contradictory. If she (and Professor Chiu – the plaintiff’s expert) had really been “misled” by Professor Cheung on the usefulness of the MRI scanned images as alleged, Professor Chiu would not have alerted Ms Fenn about the large number of MRI scanned images and her own lack of expertise in analysing them in the course of the preparation of her expert report.  Neither would Ms Fenn have started looking for a neurologist in September 2023.  The apparent fact is that Ms Fenn and Professor Chiu considered it necessary no later than September 2023 to have expert opinion on comparison and analysis of MRI scanned images.

(2)  Even though Professor Cheung did not analyse the MRI scanned images, there was nothing which stopped the plaintiff’s expert from doing so (and for that matter, seeking court’s leave to do so if necessary).

(3)  It is in fact unfair for Ms Fenn to make her accusations against Professor Cheung.  This is because he had in his expert report referred to “MRI stroke protocol” for a number of times. 

(4)  Ms Fenn must also have had knowledge about the Deceased’s stroke in 2015 no later than the time when she perused Professor Cheung’s Report which was served on the plaintiff on 12 May 2022.  Indeed, in her 20^th Affirmation, Ms Fenn accepted that Professor Cheung had “only very generally glanced over the Deceased’s August 2015 stroke”. Whatever this quoted phrase means exactly, it is undeniable that she knew the Deceased had suffered from stroke in 2015 at least by virtue of Professor Cheung’s Report.

38.Third, given Ms Fenn’s explanation that the new expert report is necessary only by reason of Professor Chiu’s lack of expertise in the comparison of MRI images of the Deceased’s brain, there is no reason why Dr Robert Ho had to go into the “clinical evidence” as revealed in various witness statements which, as he himself admitted, had been comprehensively discussed by Professor Chiu in her report.

39.Fourth, I have initially inclined to allow Dr Ho’s Report to be adduced but on the condition that it is to be edited such that he would only confine his opinion on the comparison of MRI images without referring to the witness statements (because there is no reason why the plaintiff should be given the chance to have a second bite of the cherry).  However, in the end, I have decided against this initial thought because:

(1)  When this idea was first raised in Court, Mr Lam for the plaintiff frankly admitted that he could not be sure whether it is feasible for Dr Ho to give his opinion purely on the basis of MRI images without references to the clinical evidence.  The probative value of such an edited report is therefore questionable;

(2)  More importantly, one must bear in mind that there is only around 1 day’s buffer in the trial period: 25 days have been reserved for opening submissions and the taking of evidence while the estimation of the parties was that it would take 24.1 days for the above procedures to complete.  Such a trial length was fixed before the plaintiff added “undue influence” as part of her case.  Now that the plaintiff’s Undue Influence Amendment Summons had been allowed, parties had been given leave to exchange further witness statements to cover this aspect of the case.  It is unclear how much longer the evidence will take, but what is certain is that the additional evidence would eat into the buffer.  In such circumstances, allowing the plaintiff’s Expert Summons (even if only on a more limited scope) would necessarily mean that there would be at least 1 more (if not 2) expert who would have to give evidence at the trial.  That would create a great risk of causing the trial to over-run, which will be disastrous, given the busy schedules of both leading counsel in the present case.  What this Court does not want to see is that the trial would have to be truncated, and that is something which should be avoided.

40.I have always borne in mind that the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court). However, we do not live in a perfect world.  Hence, such primary aim has to be balanced with the underlying objectives.

41.Having conducted such a balancing exercise and considered the matters mentioned above, I hold that the plaintiff’s Expert Summons should be dismissed.

THE DEFENDANTS’ MISCELLANEOUS SUMMONS

42.The defendants’ counsel (in their written submissions) and the defendants (in Chow Vi Vi’s 10^th Affirmation) described the defendants’ Miscellaneous Summons as a summons which contains directions consequential to the grant of leave to the plaintiff to adduce further expert evidence from Dr Robert Ho.  To summarise, these directions include:

(1)  Leave for the defendants to adduce an expert report from an independent psychiatrist in reply to Professor Chiu’s Report;

(2)  Leave for the defendants to adduce an expert report from an independent neurologist in reply to Dr Ho’s Report;

(3)  Joint meeting and joint statement of experts;

(4)  Consequential amendments to the Re-Re-Re-Amended Defence and Counterclaim;

(5)  Filing of witness statements covering factual matters relevant to the mental condition issues set out in paragraph 2 of the plaintiff’s Expert Summons.

43.Now that the plaintiff’s Expert Summons is dismissed, theoretically there is no need to discuss the defendants’ Miscellaneous Summons further, and no order should be made thereon.

44.Unfortunately, the matter is not as straight-forward as it first appears, because Mr Yu SC admitted in Court that in fact the proposed  amendments to the Re-Re-Re-Amended Defence and Counterclaim are not consequential upon the grant of leave to the plaintiff to adduce Dr Robert Ho’s expert evidence, but consequential upon the plaintiff’s addition of a case of undue influence.

45.On the other hand, Mr Lam for the plaintiff submitted that the proposed amendments do not only cover the plaintiff’s case of undue influence.

46.In my view, no matter whether those amendments are made consequential to the addition of the plaintiff’s case of undue influence, they should not be allowed:

(1)  If they indeed do not only relate to the case of undue influence, then such amendments should not be allowed because the defendants are bound by:

(a)  The undertaking given by the defendants’ counsel to the Court on 7 June 2024 that they shall not make any further application for amendment of pleadings herein; and

(b)  This Court’s order of even date that no further application for amendment of pleadings may be made by the parties in this action.

(2)  Even if they only relate to the new case of undue influence, it should be borne in mind that the defendants have already amended their pleading pursuant to the consequential directions given by this Court when leave was given to the plaintiff to add a case of undue influence. There is no reason why the defendants should be given a second chance to do so.

47.From the case management point of view, I consider that given the long history of this case, there is simply no further room for the parties to further “perfect” their case, which should have been done long time ago.  They should concentrate on what they have already placed before the Court and prepare for the upcoming trial accordingly.

48.With the above in mind, I should also say a few words on some of the defendants’ other proposed consequential directions:

(1)  The suggestion that there is a need to appoint a new expert for the purpose of replying to Professor Chiu’s Report is bound to be rejected, since Professor Cheung should have already done so, if he thought fit, in the Joint Statement filed on 16 November 2023;

(2)  The proposal of introducing Professor Lo Chung Mau as a witness apparently comes too late, bearing in mind his involvement in the matter had already been mentioned all the way back in the first version of the Defence and Counterclaim filed on 7 November 2019; 

(3)  Insofar as it is the defendants’ argument that there are other witnesses who should give additional factual evidence which may constitute “clinical evidence” for the benefit of their independently instructed experts, such an argument must be rejected.  This is because there is no acceptable reason why these witnesses should not be asked to give their witness statements when the parties first exchanged witness statements.   I do not see how it can be argued that the defendants did not see the need in the past.  In light of the amount of money at stake and the financial strength of the parties, it is not reasonable to suggest that the defendants had deliberately withheld from preparing for the case at 100% effort.  With respect, they are simply making use of this opportunity to further “perfect” their case. 

THE DEFENDANTS’ TIME SUMMONS

49.The plaintiff does not oppose this summons, save that she would ask for the usual costs of $1,040.

ORDER

50.For reasons of the aforesaid, I make the following orders:

The plaintiff’s Expert Summons

(1)  The plaintiff’s Expert Summons be dismissed.

The defendants’ Miscellaneous Summons

(1)  The defendants’ application to make amendments to their Re-Re-Re-Amended Defence and Counterclaim be dismissed.

(2)  Time for service of this Summons be abridged.

(3)  Subject to the above, no order be made on the Summons.

The defendants’ Time Summons

(1)  Order in terms of the Summons.

COSTS

51.The costs of the defendants’ Time Summons should not be controversial.  As it was the defendants who were seeking indulgence from the Court, there is no reason why the defendants should not bear the plaintiff’s costs thereof, which the plaintiff suggested to be summarily assessed at $1,040.  I make an order accordingly, and the defendants shall pay such assessed costs forthwith.

52.In relation to the plaintiff’s Expert Summons and the defendants’ Miscellaneous Summons, having taken into account the following matters:

(1)  The result of the applications;

(2)  The change of stance on the part of the defendants;

(3)  The litigation conduct on the part of the defendants in that they initially described the proposed amendment to their pleading as consequential upon the plaintiff’s proposed expert directions when they apparently are not,

I take the view that there should be no order as to costs in relation to both summonses. I therefore make a cost order nisi accordingly, and this order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.