Ngao To Ki v. Attorney General and Others

HCA000313/1976

Coram: Zimmern, J.

Date of Judgment: 7th May, 1980.

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JUDGMENT

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The Plaintiff in this case was formerly a contractor trading under the firm name of Cheoy Lee Construction Company. The 1st Defendant the Attorney General is sued under the provisions of the Crown Proceedings Ordinance in respect of alleged breach of duty by the Director of Legal Aid a post created by Ordinance to administer the legal aid service in Hong Kong. The 2nd 3rd Defendants which I shall refer to as J.S.H. and G.H.W. respectively are firms of solicitors.

Very briefly, the claims against the Defendants are in damages for breach of duty for inordinate delay in the prosecution of the Plaintiff's suit against Yau Wing Company Ltd. being Action No. 775 of 1966 (which I shall refer to as the original action) which, upon the application of Yau Wing on 8th April 1975, was dismissed by Pickering J. for want of prosecution. The 1st and 2nd Defendants denied liability which the 3rd Defendants admitted at the hearing and all three rigorously contested the issue of damage.

It is now convenient to set out the

History of the original action

1.Yau Wing was the successful tenderer for the Government works Sha Tin Tunnel Approach Road - North Portal to Sha Tin and entered into a contract with the P.W.D. to perform the works being contract No. 181 of 1964.

2.By an agreement in the Chinese language Yau Wing subcontracted part of the said works to the Plaintiff on the terms and conditions therein set out including "The period of work of this job shall be from 29/9/1964 to 29/1/1966".

3.The Plaintiff commenced work as such sub-contractor. By a letter dated 4th March 1966 solicitors for Yau Wing on its behalf terminated the agreement on the ground that the Plaintiff had stopped work.

4.On 7th March 1966 Wong & Lo solicitors for the Plaintiff wrote to Yau Wing's solicitors part of which letter I shall set out later.

5.On 20th April 1966 Wong & Lo on behalf of the Plaintiff issued a writ against Yau Wing and the indorsement after amendment with leave granted on 11th June 1966 reads in part:

"The Plaintiff's claim against the Defendant arises from an agreement ..... which was subsequently extended by mutual consent .... and is for

This was signed by Mr. Swaine of counsel.

6.The Statement of Claim dated 7th June 1966 again signed by Mr. Swaine was then served and filed. By paragraphs 3 and 4 thereof the Plaintiff alleged that under the agreement

"the Defendant sub-contracted that portion of the works which related to the construction of the road ... on terms and conditions therein contained for the period from 29/9/1964 to 29/1/1966."

By paragraph 4 the Plaintiff averred

"At the expiration of the said agreement the Plaintiff and the Defendant extended the said agreement by mutual consent on the same terms and conditions for an unspecified period."

Particulars of the claim for $69,972 under (c) above were given as being additional charges for dumping excavated material at a site other than the specified site, namely at Siu Lek Yuen at $3 per lorry load from 16th December 1965 to 30th February 1966. The particulars for damages for breach of contract were given as

"Loss of profit at the rate of about $26,045.95 a month from 5/3/66 and continuing."

7.By its defence and counterclaim dated 8th September 1966 Yau Wing joined issue with the Plaintiff and counterclaimed $18,721.77 being overpayment up to termination of the agreement. The defence expressly averred that no retention money had in fact been deducted at the request of the Plaintiff.

8.On 19th November 1966 the Plaintiff was granted leave to amend his Statement of Claim by deleting the words "for an unspecified period" from paragraph which I have set out above.

9.Pursuant to an order of the Court the Plaintiff served particulars of his claim dated 16th November 1968 for the $200,000 under paragraph 6. I shall deal with these particulars later.

10.The Plaintiff changed his solicitors from Wong & Lo to K.C. Yung & Co. which filed a Reply and Defence to the Counterclaim dated 4th March, 1967.

11.By a notice dated 25th September 1967 Yau Wing called upon the Plaintiff to admit the several payments and receipts set out therein totalling $717,869.67 and $36,686.25. The Plaintiff admitted $717,869.67.

12.The matter came before Mills Owens J. for hearing on 26th February 1968 when

Mr. Peter Chan was counsel for the Plaintiff and Mr. Patrick Yu (who now appears for the 3rd Defendants) was counsel for Yau Wing.

13.The events which took place on the hearing before Mills-Owens, J. on the 27th, 28th, 29th February 1968, 1st and 4th March 1968 are recorded in the judge's notes (Ex. D149 - 155) and I summarise them as follows:

27th February

Counsel for the Plaintiff handed up 'talk' showing (a) amendments required to paragraph 6 of the Claim on amount due from $200,000 to $434,472.67, (b) deletion of the claim for $69,972.00. Counsel for Yau Wing made observations that the Plaintiff was then seeking an entirely different case formulated 18 months ago and observed that it might be advisable to appoint an assessor under Order 36. The matter was adjourned till the afternoon when Mr. Yu informed the court that counsel were agreed that the quantity of work actually done should be determined by a specially qualified referee and applied for an adjournment till the next afternoon so that the parties might

Hearing was accordingly adjourned till the next afternoon.

28th February

Mr. Chan told the Court that he was unable to obtain special referee on reasonable terms and that the case should proceed. He further applied to amend the Statement of Claim. The Court adjourned to the next day as requested for Mr. Chan to formulate his amendments.

29th February

Mr. Yu submitted before the Plaintiff put his Statement of Claim in order he was bound to deal with and clarify the contradiction in his Reply as pleaded in paragraphs 3, 4, 5. The learned judge suggested to Mr. Chan to incorporate the paragraphs of the Reply into the Statement of Claim. In the afternoon leave was given to amend the writ and further amended Statement of Claim and liberty to defendant to amend defence and further leave to the Plaintiff to amend or file fresh Reply.

1st March

Mr. Yu told the Court amended Defence filed and served and Mr. Chan asked for adjournment to consider Reply.

4th March

Mr. Chan told the Court that draft Reply ready but his instructions had been withdrawn and asked for leave to withdraw. The hearing then adjourned into chambers.

14.Pursuant to leave paragraph 4 of the Statement of Claim was amended to read (Ex. D.162)

"The said written agreement was intended by the parties thereto to embody the verbal agreement which had been reached between the Plaintiff and the Defendant by its Manager Mr. MA Ching in October 1964. By this verbal agreement the Plaintiff was employed to carry out and complete the work by 29/1/67 being one month prior to the time that the Defendant under its contract with the Public Works Department was to complete the works in question. The Plaintiff commenced work under the verbal agreement on or about 20/11/64."

I shall refer to the particulars delivered with this claim later.

15.On 12th August 1969 the Plaintiff wrote a letter (Ex. A2^a) to the Colonial Secretary.

16.On 2nd October 1969 Director of Legal Aid (D.L.A.) served notice that the Plaintiff had applied for legal aid. On 23rd October 1969 D.L.A. wrote to Mr. Swaine requesting an opinion on the merits of the application and the chances of success. On 27th October 1969 Mr. Swaine informed D.L.A. by letter that he did not have a copy of the Statement of Claim before him but on the papers with him when he drafted the Statement of Claim he was of the opinion that the Plaintiff had a good cause of action but preferred not to venture an opinion on the Plaintiff's chances of success. The D.L.A. then sent some documents including up to date court papers to Mr. Swaine who by letter dated 29th January 1970 (Ex. A39) gave a further opinion to D.L.A.

17.On 16th February 1970 the Plaintiff was granted a legal aid certificate upon payment of a contribution of $60. Mr. Swaine was the assigned counsel and J.S.M. solicitors both assignments having been approved by the Plaintiff.

18.On 23rd April 1971 J.S.M. sent to Mr. Swaine their instructions (Ex. A165 - 176) and requested

19.By a letter dated 1st June 1971 (Ex. A189) Mr. Swaine informed J.S.M. that after conferences with the Plaintiff he had understood that the Plaintiff was prepared to drop all claims save the valuation of work done and the specific claim for underpayment and that he had drafted a letter to be sent to the solicitors for Yau Wing setting out the issues to be tried. He reiterated that he would be away from Hong Kong from mid-June to mid-September 1971 and advised that the necessary one month's notice of intention to proceed under Order 3 rule 6 be given.

20.By a letter dated 7th June 1971 J.S.M. advised Mr. Swaine that the Plaintiff would not forgo any of his claims and insisted on going ahead with them all.

21.By letter dated 2nd July 1971 (Ex. A206) Deputy D.L.A. advised J.S.M. that he had seen the Plaintiff and requested J.S.M. to interview him once more to ascertain whether he would agree to the proposals advanced by Mr. Swaine and if he did not to inform D.L.A. of their views of his chances of succeeding in the claim for damages for breach of contract as the Deputy D.L.A. would have to consider discharging the legal aid cortificate.

22.By a letter dated 16th August 1971 (Ex. A225) the Plaintiff wrote again to the Colonial Secretary.

23.On 13th September 1971 J.S.M. wrote to the Plaintiff who replied on 27th September 1971.

24.On or about 1st October 1971 J.S.M. requested to be released from their assignment.

25.Between 8th October 1971 and 19th November 1971 D.L.A. assigned the Plaintiff's case to four firms of solicitors each of which refused.

26.On 23rd February 1972 Mr. Winter partner of G.H.W. was assigned and sent the papers.

27.On 12th December 1972 Mr. Gittins, Q.C. assigned leading counsel for the Plaintiff gave his opinion (Ex. B48) on the merits of the Plaintiff's case and suggested that Mr. Swaine should be invited to comment on his views.

28.By a letter dated 28th December 1972 (Ex. B55) to G.H.W. Mr. Swaine gave his views and reasserted that he favoured abandonment of the claim for loss of profit.

29.On 29th January 1973 Asst. D.L.A. wrote to G.H.W. that he supported counsel's views and confirmed the Department's decision not to support the Plaintiff's claim in respect of damages for unlawful termination of contract.

30.On 8th February 1973 G.H.W. wrote to D.L.A. confirming receipt of his letter of 29th January 1973 and continued:

"We have recently interviewed our client Mr. Ngo regarding the documentation in this action i.e. contract, sub-contract etc. with relative papers and he advises us that same were deposited with you, on his application for legal aid. These documents are necessary evidence in this case and we shall be pleased if you will let us have same."

31.On 22nd February 1973 Asst. D.L.A. wrote to all the solicitors who had refused the assignment and J.S.M. asking whether they had retained papers in the case. They all replied in the negative.

32.By a letter dated 10th May 1973 the Plaintiff wrote once again to the Colonial Secretary (Ex. B81).

33.On 8th May 1973 Asst. D.L.A. wrote to G.H.W. to say that his efforts to trace the documents had drawn a blank and suggested that they should interview the Plaintiff to ascertain where he last saw the documents.

34.On 27th August 1973 the Plaintiff wrote again to the Colonial Secretary.

35.On 3rd September 1973 Mr. Swaine wrote to G.H.W. and said he was not aware of any missing documents. I shall refer to this letter again later.

36.On 4th October 1973 the Plaintiff wrote again to the Colonial Secretary.

37.On 10th October 1973 Asst. D.L.A. wrote to Plaintiff that no documents belonging to the Plaintiff were in the Department and asked for a list of the documents alleged to be missing by him.

38.On 19th October 1973 Plaintiff again wrote to the Colonial Secretary.

39.On 5th November 1973 Plaintiff wrote to D.L.A.

40.On 7th November 1973 D.L.A. wrote to Plaintiff advising his intention to hold a conference with solicitors and counsel to discuss "the merits - in other words, the chances of your success in these proceedings."

41.On 9th January 1974 Asst. D.L.A. wrote to G.H.W. confirming the decision reached at conference with counsel to proceed with the case in accordance with the Plaintiff's wishes.

42.On 5th July 1974 Mr. Swaine wrote to G.H.W. enclosing draft of the proposed amendments (Ex. B203).

43.Plaintiff's application to amend Yau Wing's application to strike out were heard by Pickering J. who on 8th April 1975 ordered that the Plaintiff's claim be struck out.

Present Action

Liability

There is no necessity under this heading to deal with the 3rd Defendants and as a matter of convenience I shall deal with the 2nd Defendants (J.S.M.) before the 1st. Neither the 2nd Defendant nor the 3rd called any witness.

2nd Defendants

They were assigned solicitors for the Plaintiff on 18th February 1970 and discharged on 30th September 1971. The case against them as I understand it is

Though it is a fact that the 2nd Defendants took over a year to deliver instructions to counsel that by itself, is not evidence of negligence or breach of duty. Solicitors' instructions to counsel depend upon instructions from lay clients. In this case the instructions were in the main masses of calculations to put counsel in a position to settle the amendments of the particulars of the Plaintiff's claims and to add new ones. These calculations had to come from the Plaintiff. He had at the outset claimed a specific sum as underpayment besides an account of the work done. Under the rules he was bound to give particulars of how the sum was made up. (Kemp v. Goldberg [1887] 36 Ch. D. 505). In 1966 this sum was about $200,000. By 1968 it had more than doubled and by 1971 the instructions showed a figure of over $600,000. Then there were calculations for the claim for loss of profit and for new claims for conversion of various tools and machines. Once the Plaintiff admitted he supplied the calculations he had to prove that upon receipt the 2nd Defendants procrastinated and did not act on them within reasonable time otherwise his contention falls apart. He completely failed to so prove. Having read the instructions, heard and seen the Plaintiff in the witness box for so many days may I add that not only was there no evidence of delay but I find that the 2nd Defendants stuck to their task with commendable fortitude and equanimity in the face of a lay client who had no respect for the truth.

The matter does not end there for even if the 2nd Defendants had been guilty of delay the Plaintiff still had to prove that damage flowed from that breach. As was put by Lord Reid in Stapley v. Gypsum Mines Ltd.⁽¹⁾

"One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened but that does not mean that the accident must be regarded as having been caused by the faults of them all. One must discriminate between those faults which must be discarded as being too remote and those faults which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt if any test can be applied generally."

The 2nd Defendants delivered full instructions to counsel on 23rd April 1971 and were discharged on 30th September 1971. Their successors the 3rd Defendants had sufficient time to deal with the matter before any question of striking out for want of prosecution could arise and they in turn did not impute any blame or fault on the 2nd Defendants. I find it impossible to accept that any reasonable jury would not discard this delay as being too remote. Expressed in terms of causation the delay was not the cause of the damage and was at most merely the causa sine qua non. As for the other allegations the 2nd Defendants never mislaid documents as alleged in (b) above. (c) and (e) are totally irrelevant. As to (d) I do not have to decide whether there was a duty on the 2nd Defendants to assist the Director of Legal Aid and the 3rd Defendants to locate documents allegedly lost. In fact no documents were lost but in any event they had rendered all assistance with courtesy in the matter. Accordingly the claim against the 2nd Defendants fails and I would not be doing justice to them without commenting that the action against them was both ill-advised and ill-conceived. J.S.M. had acted responsibly throughout.

1st Defendant

The case against the 1st Defendant as claimed is that he as the Director of Legal Aid owed the Plaintiff a contractual duty and/or a fiduciary duty and/or a general duty of care in respect to the continuation and conduct of the proceedings and he was in breach of that duty by reason of the matters particularized in the claim.

On the civil side the powers of the D.L.A. are provided by the Legal Aid Ordinance which makes provisions for the granting of legal aid in civil actions to persons of limited means. Before any applicant is granted a legal aid certificate the D.L.A. must be satisfied that

In respect of (2) the Director or other officers of the department may either decide the matter themselves or refer it to counsel or solicitor on the panel for advice before decision.

The Plaintiff having passed the tests was granted a certificate which entitled him to the selection of counsel or solicitor on the panel. He agreed to Mr. Swaine and J.S.M. respectively. It is now convenient to deal with three matters. First the Plaintiff's claim that the Director owed him a contractual duty of care. Mr. Bernacchi submitted that the $60 paid by the Plaintiff to the Director was a consideration for the legal aid certificate. With respects the $60 was a sum assessed to be payable by the Plaintiff under the means test before a certificate could be issued. There was no bargain or offer and acceptance in any form. Second a similar claim of fiduciary duty of care. May I say without discourtesy to the pleader, I do not know what this means. A fiduciary relationship might well give rise to a duty of care. It was not argued before me that there was such a relationship and that the duty was greater than the ordinary duty of care. This leaves the general duty alleged.

Once the D.L.A. has granted a certificate and assigned solicitor and counsel to a matter the conduct of the proceedings is in the hands of the latter and under the Ordinance and Regulations, his residual powers are:

What then is the breach of the general duty alleged. The allegations stemming from paragraph 13 of the amended Statement of Claim in terms:

"Ever since the granting of the said legal aid certificate on 18/2/70 and despite the written opinion given by Mr. Gittins and Mr. Swaine on the 12th and 28th days of December 1972 respectively on the chances of success of the said action the Director had failed and/or refused to make a decision to proceed with the said case."

read

The statement contained in paragraph 13 bore no resemblance to the truth of the matter on the evidence before me.

After Mr. Swaine received his instructions from J.S.M. he in conference with the Plaintiff and later in writing advised that the Plaintiff should only proceed with his claims for (a) an account of the work done and (b) the specific claim for about $600,000 and abandon his claims for damages for breach of contract and conversion of machine etc. in order to speed up the trial. Mr. Swaine understood that the Plaintiff had agreed and had settled all the documents necessary for J.S.M. to approach the solicitors for Yau Wing to have only those issues tried. This was in early June 1971 soon before Mr. Swaine was going off on long vacation.

The Plaintiff refused to confirm to J.S.M. that he would abandon those claims and insisted on proceeding with them all. He wrote at length twice to the D.L.A. J.S.M. by their letter of 10th July 1971 to the D.D.L.A. gave a full history of the Plaintiff's conferences with counsel in reply to the D.D.L.A.'s requests for their views as to the chances of the Plaintiff succeeding on a claim for damages for breach of contract. I quote in part J.S.M.'s letter:

"Returning now to the last part of your letter of the 2nd July, we are of the view that the aided person will have considerable difficulty in proving his case in respect of his claim for damages for breach of contract."

Having heard the Plaintiff cross-examined at length on this I have come to the conclusion and I doubt if any other court would conclude otherwise than that the claims for breach of contract and damages for conversion were false and known to be false by the Plaintiff.

The facts are:

"First we would point out that our clients were sub-contracted only by your clients to carry out the construction of the road work for a period of time namely from 29th September 1964 to the 29th January 1966 and they were not sub-contracted to complete the whole piece of work assigned to your clients by Government after the 29th January 1966 at your clients' request our clients to carry out the said work on the same terms of the agreement."

"the Defendant sub-contracted that portion of the works which related to the construction of the road ... on terms and conditions therein contained for the period from 29/9/1964 to 29/1/1966. At the expiration of the said agreement by mutual consent on the same terms and conditions for an unspecified period."

An analysis of the documents and repeated amendments to the pleadings shows the Plaintiff's claim for breach of contract to have been

Let me note that the claim of common mistake was not made till nearly a year after commencement of action. This claim calls for a prayer for rectification of the agreement in writing. Yau Wing had denied that there was such a mistake. The burden of proving such a mistake lies heavily on a party so alleging (see Chitty on Contract paragraph 314). When cross-examined on the "mistake" his explanation including the dates advanced namely 29th January 1967 then 12th November 1966 were beyond belief.

With hindsight and with no disrespect I think the D.D.L.A. made an error of judgment in not confining at an early stage the certificate to the accounts and underpayment claims only. He was perhaps too tolerant and was not disposed so to do unless he received advice from solicitors and counsel that the Plaintiff's chances of success were nil and this they were understandably reluctant to give though both Mr. Swaine and J.S.M. came near enough to so saying.

It was not till January 1973 that the Asst. D.L.A. finally decided not to support the Plaintiff's claim for breach of comtract after taking an opinion from Mr. Gittins Q.C. and further advice from Mr. Swaine who reasserted that he favoured abandonment of the breach of contract claim and accordingly wrote to G.H.W. then the assigned solicitors and had been since February 1972.

I come to the episode of the "Missing documents" one of the subject matters of complaint by the Plaintiff. It stems from a letter from G.H.W. to the Asst. D.L.A. dated 8th February 1973 confirming receipt of his letter of 29th January 1973 and continuing:

"We have recently interviewed our client Mr. Ngo regarding the documentation in this action i.e. Contract, sub-contract etc. with relative papers and he advises us that same were deposited with you, on his application for legal aid. These documents are necessary evidence in this case and we shall be pleased if you will let us have same."

I am unable to appreciate how a firm of solicitors seized of a matter for nearly a year with J.S.M.'s instructions to counsel in their possession and the decision of the Asst. D.L.A. just to hand could be quite that nebulous. The Department accepted that letter at face value and wrote to all who had contact with the papers. They searched their own offices and no documents were found. In May the Asst. D.L.A. asked G.H.W. to find out precisely what documents were alleged missing. In August 1973 G.H.W. wrote to Mr. Gittins and Mr. Swaine and I quote in part:

"Bearing in mind the position with regard to the missing documents we shall now be pleased to be advised by yourselves whether you are prepared to proceed forthwith to finalize the action."

Mr. Swaine on 3rd September 1973 replied by asserting he was unaware that any documents were missing and ending:

"It appears to me with great respect that the last paragraph of your letter in which you asked whether I am prepared to proceed forthwith to finalize the action misconceives the position. The point surely is whether the Director of Legal Aid has come to a decision as to the aided person's claim to his loss of profits. As Mr. Gittins says at paragraph 7 of his opinion, it is a matter of policy for the Director of Legal Aid whether the Plaintiff's litigation should continue to be supported out of public funds. The question at this point is most emphatically not whether I am prepared to proceed to finalize the action."

It would appear that G.H.W. had not told counsel of the decision of the Asst. D.L.A. made in January 1973. As G.H.W. have admitted liability I would not have said anything about them but for the fact that I am still dealing with the liability of the 1st Defendant. From the documentary evidence before me the only conclusion I can come to is that G.H.W. from the date of assignment to the date of Mr. Swaine's letter never came to grips with the case at all. It was a year and a half of procrastination. The Plaintiff certainly made no bones about it by writing letters galore to the D.L.A. and the Colonial Secretary. I have no doubt that the D.L.A. was worried. He had neither the power to interfere with the conduct of the proceedings save to request for information regarding the progress and disposal of proceeding under regulation 12(9) nor to discharge the solicitors on his own initiative. I accept the evidence of Mr. Pokorny the Deputy D.L.A. who told the Court that there was not another firm of solicitors on the Panel who would accept this assignment and his department was then not equipped to act as solicitors for any aided person. The department was then still in its comparative infancy and not the strength it is today.

The Plaintiff carried on pressing for the so-called missing papers and it was not tell November 1973 when it was determined that no papers were missing. On the relentless pressure of the Plaintiff it was finally decided in March 1974 that the Plaintiff be permitted to pursue all his claims. I have set out heretofore how the Statement of Claim was struck out upon the application to amend it once again. I have set out all the facts necessary to deal with the liability of the 1st Defendant.

Mr. Bernacchi in imputing liability on the 1st Defendant relied heavily on Section 24(1) of the Legal Aid Ordinance which reads:

"The like privileges and rights as those which arise from the relationship of client, counsel and solicitor acting in their professional employment shall arise from the following relationships, that is to say -

He said that section puts the D.L.A. in the same position as counsel and solicitors and there can be no privileges and rights without liabilities. Therefore the D.L.A. is in the same position as a solicitor in any matter under the ordinance. This argument is a complete fallacy. The meaning and effect of that section is that confidential communications between an applicant for legal aid and the D.L.A. and between an aided person and the D.L.A. and solicitors and counsel assigned are privileged from disclosure and that privilege is the privilege of the applicant or the legally aided. On the evidence in this case the only possible application of this section could have been to the series of correspondence between the Plaintiff, the Colonial Secretary and the D.L.A.; but seeing that the Plaintiff instigated the series he would have waived that privilege.

Mr. Bernacchi cited many well known cases on negligence including Heaven v. Pender⁽²⁾, Donoghue v. Stevenson⁽³⁾, Hedley Byrne & Co. Ltd. v. Heller & Partners⁽⁴⁾ to name only a few. Seeing that he intended to apply them on a misconceived premise that the D.L.A. was so to say a co-solicitor in the case I do not have to go into them in detail. In this case the D.L.A. never at anytime acted qua solicitor or counsel for the Plaintiff. He was performing his duties to provide legal aid for the Plaintiff within the ambit of the Ordinance. The Plaintiff under the legal aid was represented by solicitors and counsel. Within the scope of their certificates the relationship between them and the Plaintiff was the same as if he was their own private client. The D.L.A. could not intermeddle. His decisions were subject to appeal to the Registrar of the Supreme Court and his administrative acts subject to applications for judicial review under Order 53 of the Rules of the Supreme Court. What then is this duty of care in respect to the continuation and conduct of the proceedings which are in the hands of the solicitors for whom the D.L.A. is not vicariously liable. The D.L.A. had no duty in respect of the complaints alleged by the Plaintiff. Further the Department never mislaid any documents and the whole episode arose because G.H.W. were not au fait to the matter and it remains a matter of grave suspicion whether the Plaintiff made use of the situation to drag the matter on. The Plaintiff's case against the 1st Defendant must be dismissed.

This leaves the matter of damages against G.H.W. They having admitted liability.

Mr. Bernacchi said on the dicta of Diplock L.J. (as he then was) in Allen v. McAlpine⁽⁵⁾ the burden was on the Defendant to prove that the Plaintiff would not have succeeded in his whole claim against Yau Wing for $1,050,804,17 alternatively the onus was only on the Plaintiff to show that he had some chance of success and it was then up to the Court to assess that chance and quantify the sum.

Diplock J.J. was reviewing generally the position of a blameless plaintiff whose case had been dismissed for want of prosecution through the negligence of his solicitor. He said at pp 256/257:

"It is true that if the action for professional negligence were fought, the court which tried it would have to assess what those chances were. But on this issue the plaintiff would be in a much more advantageous position than if he had sought, despite the inordinate delay, to establish liability against the defendant in the action which had been dismissed. Not only would there be available to him any advice or material which had been given or obtained by his solicitor in support of his case in the dismissed action, but the principle of Armory v. Delamirie [(1722) 1 Stra. 505] would apply and would impose upon the solicitor the onus of satisfying the court that the plaintiff's claim in the dismissed action would not have succeeded had it been prosecuted with diligence."

In my view, the dicta of the learned Lord Justice has no application to the facts of this case at all. Negligence is not actionable without proof of damage. The two must co-exist (Munday v. L.C.C. [1916] 2 K.B. @ 334). In this line of cases the damage suffered by a blameless plaintiff is the loss of his chances of recovering damages against the original defendant, which the Court has to assess and according to the Lord Justice if the solicitor defendant contends that those chances were nil, the burden then is on him so to prove. Mr. Yu has contended with force that this onus could not possibly spring from the principle of Armory v. Delamirie and here viewed many cases in which this principle was applied. I need not have to say anything on this issue for Mr. Yu has admitted liability which in an action in negligence means an admission not only of the fact of negligence but also that the Plaintiff has also suffered at least some damage otherwise there can be no liability. The question now is quantum or how much. My task is then to evaluate the Plaintiff's claims and his chances of success in the original action. On this point Lord Evershed said in Kitchen v. Royal Air Force Association⁽⁶⁾ that the onus was to a substantial extent on the plaintiff to prove what was the loss or damage which flowed from the negligence. At pp 574/575 he further said:

In the present action the Plaintiff has boldly claimed by paragraph 20 of his Statement of Claim as finally amended

This sum comes from the final draft pleading in 1974 against Yau Wing and comprises of:

Of the above items I have disposed of the claims in damages for breach of contract and for conversion. His chances of succeeding on these claims were nil. This leaves the underpayments. In my view the extent of the onus of proof on the Plaintiff in the circumstances of this case is high for the following reasons.

1. He was a blameworthy Plaintiff. He commenced action in 1966 and dismissed his own counsel in the middle of trial in 1968 when the case was adjourned. He was an aided person in 1971 and though well served refused to accept the advice of counsel and solicitors. He was to a great extent responsible for the episode of the missing documents.

2. His conduct right through the two actions gave rise to the gravest suspicion whether he really wanted the original case tried at all. On the evidence both documentary and oral there were protestations and nauseam by the Plaintiff that

Both sounded to me hollow. The question arises what was neath this veneer of protestations of righteousness and indignation. I think Mr. Caird for the D.L.A. was probably right in his submission that the Plaintiff did not want his original case tried as it was no more than a contingent asset to pacify his creditors. It is difficult to accept that workmen on a site in 1966 would still be pressing an employer for wages then earned in 1972 and onwards even after such wages had become time barred. The Plaintiff had been well advised to proceed without certain of his claims in 1972 with prospects of early determination of his case and he refused. There was an abundance of evidence that the Plaintiff was in financial difficulties if not at the inception of his contract with Yau Wing at least soon afterwards. He had some facilities with a Bank in 1965 but that Bank in that year closed its doors. There were judgments against him. Yau Wing's records in evidence show and these he could not deny that he was at times drawing in advance of money earned. On the evidence I find that he was a hard pressed debtor from 1965 onwards independent of his contract with Yau Wing which leads me to:

3. The Plaintiff admitted receipt of $717,869.67 from Yau Wing under the Contract. Yau Wing claimed more had been paid but I do not take this into account. What remain of the Plaintiff's claims in the original case are for an account of work done under the contract and a specific sum for underpayment namely $470,678.10 besides non-payment for extra work of $141,063.87. The Plaintiff said in evidence that it was his duty as a subcontractor to send periodic particulars of work done to support his invoices for payment to Yau Wing but Yau Wing was so unaccommodating with his particulars that after a few months he stopped sending his own particulars of work done and accepted Yau Wing's measurements under protest. The protests he said were oral and manifested in signing receipts for payment by Yau Wing as temporary receipts. The documents in this case run to hundred of pages and the records of the Plaintiff's own work only run up to May 1965. All sorts of excuses were advanced for the non-disclosure of the rest. Bearing in mind that the claim for under payment was about $200,000 in 1966 and $400,000 in 1968 and $600,000 in 1974 the Court asked both the Plaintiff and his counsel how an impecunious sub-contractor with a labour force on site could in over a year's work be paid only $700,000 and withstand an underpayment of over $600,000. Neither could come out with a reasonable answer.

4. The claim whether on the account or on the specific sum claimed calls for a measurement of the work done by the Plaintiff. Save for the item for $141,063.87 there is no dispute over the rate for the work done. Three different sets of particulars had been delivered with the Statement of Claim at various times:-

When Mr. Yu was cross-examining the Plaintiff on the 2nd March 1979 the latter was asked to identify the documents from which the three sets of particulars had been obtained. The Court was adjourned that day for new dates to be fixed. Mr. Bernacchi on behalf of the Plaintiff gave an undertaking to the Court that where particulars had been obtained from documents they would be identified and notified to those instructing Mr. Yu before the date fixed for the resumed hearing. Dates were eventually fixed to resume hearing on 11th February 1980. Sometime before then the Plaintiff's solicitors with leave of the Registrar not themselves off the record and the Plaintiff became a legally aided person again and was assigned new solicitors. At the date of the resumed hearing the undertaking to the Court was not complied with though reminded by those instructing Mr. Yu.

There was no acceptable reason why after nearly a year the undertaking was not complied with. No fault was imputable to the Plaintiff's new solicitors. Mr. Yu had every right to stand on his ground that he could not carry on his cross-examination until he received what had been promised. The Court had to adjourn till 20th February 1980 before the particulars were produced. Once these particulars were produced it was clear that the Plaintiff relied unproved P.W.D. documents. The site was divided into levels and under the Plaintiff's contract with Yau Wing he was to work the lower level. Theoretically it could be argued that as the P.W.D. surveyed the work done periodically it was possible from final survey of the work done upon completion by Yau wing of its contract with the P.W.D. to estimate the amount of work done by the Plaintiff and Yau Wing. Let me take a specific item being No. 4 in the contract between Yau Wing and the Plaintiff reading:

"4. Earth excavation within the line of the new road, including all the decomposed granite and loose stones on not exceeding 5 cu. ft. and the removal of the same to the specified place for dumping within the line of the road, and the levelling of the same in layers and rolling of same to make it hard; fixing the place where earth has been excavated or the slope where earth is to be filled, including all the charges for the Bulldozer, lorries for transportation, fuel, coolies, and repairs (the Co. to provide the Rolling Machine). Per every 100 cu. ft.5.15."

The Plaintiff argued that this was the equivalent of B.1 in the Bill of Quantities between Yau Wing and the P.W.D. reading:

The Plaintiff therefore took this item from Yau Wing's application for payment which reads:

The Plaintiff then adopted four P.W.D. documents being Ex.E.378, 379, 380, 381, headed Final Survey volume of earthwork and elicited volume for Yau Wing's working levels to be 7,803,800 cu. ft. and the Plaintiff's to be 10,472,500 cu. ft. The Plaintiff then said at the agreed rate of 5.15 per cu. ft. he had earned $539,310.57 and had only been paid $370,892.30 leaving a balance of $168,418.27 unpaid. The Plaintiff called Mr. YAU Koon Leong of the P.W.D. who told the Court that he computed the documents E.378, 379, 380, 381 but unfortunately for the Plaintiff this witness told the Court that those calculations showed everything which had been excavated from the site and would include rocks. I need only further to add that in his previous two claims for this item it was clear that he was paid by Yau Wing in terms of $5.15 per lorry load of earth removed on the basis of 100 cu. ft. per lorry load. He had already inflated one of those claims to 125 cu. ft. per lorry when he told his own solicitors a lorry load was 100 cu. ft. I am not going into the other items in detail. Measurement of volume of work done is a matter for a surveyor. He did not call one to testify on his own behalf. He was his own expert and I am not prepared to accept his expertise on calculations of measurements or in fact that any term of his contract corresponds with any item of the Bill of Quantities in the Contract between Yau Wing and the P.W.D.

Taking into consideration that the Plaintiff stopped work on the site on 22nd February 1966 and there is a P.W.D. document showing the work left undone on the levels for which he was responsible Mr. Yu presented a far more plausible argument on the documents that the Plaintiff had been fully paid if not overpaid for his work done in respect of his work for excavation and removal of earth, rock blasting, and rock splitting. I am not convinced on probabilities that he had a chance of succeeding on these claims. There is left an item of $141,063.00 claimed under the draft Statement of Claim as an extra for removal of earth for dumping at Siu Lek Yuen between 16th November 1965 and 28th February 1966. The Plaintiff estimated 4,702,129 cu. ft. at a fair rate of $3.00 per 100 cu. ft. above the rate of $5.15 per 100 cu. ft. i.e. $141,063.00.

The records do show that the P.W.D. requested Yau Wing to dump certain earth at Siu Lek Yuen but this was in February of 1966 and there is an variation order issued to Yau Wing dated 6th April 1966, for this work. The Plaintiff said in evidence that he had not agreed with Yau Wing on $3 for the extra haulage as it had offered $2.00 and he insisted on $3.00. This claim first appeared in the Statement of Claim dated 7th June 1966 as $3 extra per lorry from 16th December 1965 to 30th February 1966 $69,972.00. This was repeated in the Statement of Claim dated 11th February 1967. By the Statement of Claim dated 29th February 1968 this was increased to 34,014 lorry loads at a fair price of $3.00 per load i.e. $102,042. The draft Statement of Claim increased this claim to $141,063.87. On this claim the Plaintiff had some prospects of success. There is some evidence that earth was dumped at Siu Lek Yuen which is further away than the dumping site stipulated in the contract. On balance I find that the Plaintiff at the request of Yau Wing did some of this extra haulage and there is no suggestion that he had been paid for any extras therefor. He ought to have produced his own record of lorry loads to support his claim but did not do so. The inflation of this claim as time went on is of course most suspicious. His initial claim was $69,972.00. He was unable to prove even this sum but a chance he did have of proving something and I accordingly award the sum of $40,000.00.

There will be judgment in the sum of $40,000 against the 3rd Defendants.

Representation:

B. Bernacchi, Q.C. & K.H. Woo (W.K. Lore & Co.) for Plaintiff

B. Caird & J. Leung (Legal Department) for 1st Defendant

Martin Lee, Q.C. & P. Lee (Lo & Lo) for 2nd Defendant

Patrick Yu & A. Dicks (Deacons) for 3rd Defendant

(1) [1953] A.C. at p.681

(2) [1883] 11 Q.B.503

(3) [1932] A.C. 562

(4) [1964] A.C. 465

(5) [1968] 2 Q.B.229

(6) [1958] 1 W.L.R. @ 567