Re Y, A Solicitor

HCA002040/1985

In re Y, a solicitor

Coram: The Hon. Mr. Justice Jackson-Lipkin in Chambers

Dates of Hearing: 8th January and 15 August 1986

Date of delivery of Decision: 21 August 1986

Appearances: Mr. Y in person

Mrs. Tsang for the Plaintiff

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DECISION

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1. This action was commenced on 1st April 1985, and was for the price of goods sold and delivered. The plaintiff proceeded under Order 14, and, on 13th May 1985, Master Betts gave judgment for certain sums and unconditional leave to defend as to the balance.

2. Pursuant to paragraph 3 of Master Betts' Order, the defendant served a Defence and Counterclaim on 20th May 1985. Notwithstanding paragraph 4 of Master Betts' Order, the plaintiff did not serve its Reply and Defence to Counterclaim until 10th June 1985.

3. By reason of paragraph 5 of Master Betts' Order, mutual Discovery ought to have been effected by 25th June 1985. Following Hong Kong practice, that Order was ignored. Eventually, the plaintiff lodged a List of Documents, unsupported by affidavit or affirmation, on 19th September: It did that with the apparent consent of the Defendant given on 18th September, despite Master Betts' Order. Someone must have realised this mistake, because, on 2nd October 1985, the plaintiff lodged an affidavit deposing to the truth of its List of Documents. The defendant made no attempt to lodge its List of Documents until 12th October, when it did so with the apparent consent of the solicitors for the plaintiff given on 11th October. That, again, was wrong, and someone must have realised it, because, on 5th December, an affirmation was affirmed by the defendant affirming to the truth of its List of Documents, and that affidavit together with the exhibit was lodged on 11th December 1985.

4. In the meantime, on 23rd October 1985, the plaintiff applied to set the action down for trial, and, on the same day, the action was set down in the Running List. How that could have been done before Discovery pursuant to Master Betts' Order had been completed, has not been explained to me. However, be that as it may, the action appeared in the Pending List on 30th November 1985, as No. 20 in the list, and it is to be observed that Discovery was effected by the defendant three weeks after the case had appeared in the Pending List.

5. The action then appeared in the Warned List published on 27th November 1985, warning the action for the week commencing 2nd December: It was the fourth item on page 3.

6. It appears from the evidence before me, oral and written, that counsel was not instructed by either side, and little, if any, preparation for trial was made.

7. The action appeared in the Warned List again, on 4th December, for the week commencing 9th December. Perhaps it was that second appearance that prompted the swearing of an affidavit by Stanley Lam Chi-bin, the one to which I have referred, exhibiting the defendant's List of Documents.

8. The action appeared again in the Warned List on 11th December, for the week commencing 16th December, and it was on that day that Stanley Lam Chi-bin's affidavit was lodged.

9. The action appeared in the Warned List on 18th December, for the weeks to follow 23rd December, that is to say in the Warned List published at the end of the Michaelmas Term warning cases for trial in the first week of the Hilary Term. So far as I am able to ascertain, no steps towards preparing for trial were then taken. In fact, neither side did anything until they received what I, and the Chief Master, have described as a "courtesy telephone call", which my Clerk made to both solicitors on 6th January, the day before the trial was due to commence:

10. It behoves me to set out here certain passages from the affirmation of the defendant's solicitor affirmed on 14th January: -

"7.     In the afternoon of 6th January 1986, when I returned to my office after lunch, my secretary told me she received a message from Mr. Peter Cheung of the Court at about 12.00 noon that this action should come before His Lordship on 7th January 1986.

8.    I immediately telephoned Mr. Stanley Lam, the Director of the Defendant, but he was not in the office and a message was left for him to return call to me. I called him with a view to prepare for the trial, namely, to ask him which Counsel he preferred to engage, to take instructions from him on the fee of Counsel, to arrange and to hold a joint conference with him and Counsel, to ask him to get in touch with his witnesses and to ask them to come to attend trial and for other necessary arrangements. Those are also preparations for trial.

9.    Since time is running out I immediately looked for a Counsel to appear for the Defendant on 7th - 9th January 1986 and sometime before 3:00 p. m. the same day I had engaged Mr…………. and had agreed the Counsel fee (namely brief fee and refreshers fee) with him. ".

11. Apparently, at 4.30 p.m. that day, a director of the defendant, who was giving instructions in this matter, telephoned to the defendant's solicitors to say that the defendant did not intend to proceed further with the action, and that their services were not required. The defendant's solicitor then prepared a letter for signature by a responsible officer of the defendant, which is exhibit N. Y.1 to the affirmation of 6th January 1986. That letter was then sent by the defendant's solicitor to the defendant's premises, and the messenger returned with it at 6.15 p. m.

12. The defendant's solicitor did not notify the plaintiff's solicitor of his instructions, nor did he notify my Clerk.

13. The action was called on at 10 o'clock on the following morning, but only the plaintiff was represented. The affirmation of 6th January, with N.Y.1 already signed on behalf of the defendant, was put before me. Paragraph 6 of that affirmation asked me to discharge the defendant's solicitors from acting for the defendant. There is a procedure for that, but it had not been followed.

14. The plaintiff formally proved its case, and I gave judgment accordingly.

15. I then adjourned all questions of costs to 9:30 the following morning.

16. On 8th January, I sat in Chambers to hear the explanation of the defendant's solicitor. I was greatly assisted by having Master Betts with me. There is a transcript of those proceedings, and so there is no need for me to recite here what happened.

17. The defendant's solicitor asked for an adjournment so that he might be given an opportunity to "shew cause" under 0.62 r:8(2) of the Rules of the Supreme Court. I consented to do that, and adjourned the matter to a date to be fixed.

18. I then caused a letter(of 8th January) to be sent to the defendant's solicitor, and, in due course, a hearing date was fixed for 15th August:

19. On 15th August, the defendant's solicitor appeared before me and gave his explanations. I arranged for a transcript to be taken of what transpired, and it is not necessary, therefore, for me to recite here the startling and disturbing facts which were put before me.

20. I am deeply anxious about what was disclosed to me, and I can not let the matter rest here. A copy of this judgment, together with copies of the affirmations and letters listed in the appendix to this judgment will be sent to the Chief Justice, the Chief Master, the' Chairman of the Bar Association and the President of the Law Society, not, I hasten to add, for disciplinary action to be taken, but for study to see how, if at all, our present practice, as now disclosed, can be improved. Under the system described by me, the litigants suffer greatly, the face of litigation is given an ugly aspect and the Court Lists are thrown into disarray.

21. It did appear, however, that the plaintiff had instructed counsel before (albeit very shortly before) the defendant's solicitors received their instructions not to proceed.  It also appeared that counsel's fee had been agreed by the plaintiff's solicitors before the defendant's solicitor was in a position (if he so wished) to notify them that the action would not be defended on the following day.

22. In all those circumstances, and having regard to the evidence put before me orally on 8th January and 15th August, and in the affirmations listed in the appendix, I have come to the con clusion that this is not a case where I should order the solicitor concerned to pay any costs personally, and he is discharged from such obligation.

Representation:

Appearances :  In person

Kao, Lee & Yip for the Plaintiff

List of relevant affirmations

1.    6th January 1986

2.    14th January 1986

3.    24th January 1986

4.    18th February 1986

List of letters concerning Bundles

1.    10th December 1985 from the plaintiff's solicitor

2.    6th January 1986 from the plaintiff's solicitor

Letters between Judicial Clerk and defendant's solicitor

1.    8th January 1986

2.    13th January 1986

3.    14th January 1986

4.    14th January 1986

5.    15th January 1986

6.    28th January 1986

7.    1st August 1986

Pending Lists

1.    30th November 1985

2.    31st December 1985

Warned Lists

1.    27th November 1985

2.    18th December 1985

3.    8th January 1986