Philippe Delhaise v. Ng & Co (A Firm) and Another

HCA 10165/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10165 OF 2000

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Coram: Deputy High Court Judge Gill in Court

Dates of Hearing: 13 - 17 October 2003

Date of Judgment: 5 November 2003

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J U D G M E N T

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Introduction

1.The first and then second defendants in turn represented the plaintiff as his solicitors in an action brought by him against another firm of solicitors, the senior partner of that firm and an assistant solicitor employed by that firm. When at trial the action appeared doomed the plaintiff accepted his solicitor's and counsel's advice to drop the case and settle as best as he could the other side's costs. And he did.

2.By these proceedings he now sues the defendants in negligence for not having been advised, as he should have been, that his action stood very little chance of success; alternatively, if his solicitor was of the view he had reasonable prospects, he should not have been advised to go for a dismissal.

The History

3.This is somewhat convoluted; it is necessary to go back a number of years to get to the beginning.

4.The plaintiff (Mr Delhaise) is Belgian born. He must have been an outstanding student, for his tertiary education resulted in a number of degrees in engineering and economics and the like. Of his many undoubted attributes it was also apparent during the course of the trial that he has a flawless command of English, speaking, writing and understanding it as if native born.

5.He chose as his career path banking. By 1984 he had risen to a senior position in the Belgian Bank. That year he was seconded to the Belgian Bank in Hong Kong and came to settle here with his wife of 8 years (Miss Christine Gioan) and their two daughters. The family home became a rented apartment in Discovery Bay. The following year Mr Delhaise opted for a change of direction. He left the bank and set up on his own account. But this was not a financial success; after 2 or 3 years, with funds depleted, he was obliged to explore alternative ways to earn enough to support his family. This included a possible return to live and work somewhere in Europe.

6.By mid 1988 Mr Delhaise had either secured a position in Europe or was high on a short list. But by then Miss Gioan had sought legal advice on the marriage from David Glynn, the senior partner of Hampton Winter v Glynn (HWG). Mr Delhaise says that she did not want to leave Hong Kong and this because she had taken a lover here. On 26 July 1988 Mr Glynn's then assistant Sharon Ser (Miss Ser is now a partner of HWG) issued a petition on behalf of Miss Gioan for judicial separation. On the same date she filed ex parte an application. This was to be the event giving rise to three separate actions culminating in the one before me. The application Miss Ser brought was for an injunction restraining Mr Delhaise from surrendering the lease on the family home at Discovery Bay and compelling him to keep the rent up, and prohibiting his departure from Hong Kong. The result of that was drastic; Mr Delhaise could not return to Europe and lost his chance of employment there. He immediately engaged Stevenson, Wong & Co. (SW) to act for him. It seems no steps were taken to pursue an immediate discharge or variation of the prohibition and mandatory orders, for the next event was the return date, fixed and heard on 9 August, 14 days after the order first made. On that date the order was discharged with costs because there was material non-disclosure of the family's financial circumstances, and in particular Mr Delhaise's need to secure a job in Europe. He says this was known to Mr Glynn and Miss Ser prior to the application for prohibition because it was dealt with in correspondence preceding the July order, but withheld from the presiding judge. Mr Delhaise formed the view that the non-disclosure was deliberate and as such amounted to gross professional misconduct. He laid a complaint against Mr Glynn and Miss Ser in January 1989 with the Hong Kong Law Society. There was an enquiry, but the upshot was a letter from the Law Society that the Professional Conduct Committee had accepted the explanation of Mr Glynn and Miss Ser and found there had been oversight but not misconduct. Mr Delhaise was told to seek legal advice if he wanted to take the matter further.

7.He did so. In or about December 1990 he consulted Mr John Edwards of Kao Lee & Yip. Mr Edwards told him that there was a possible claim grounded in malicious prosecution of civil proceedings but that it would be novel law and may be difficult to prove. Mr John Bleach of counsel was called in. His advice was no more encouraging. In any event at the time Mr Delhaise had no available funds and took the matter no further.

8.But in February 1992, Mr Delhaise did file a writ, against SW. This was the first of the three sets of proceedings I have referred to. I shall call it the 1992 Action. By that action he sued in negligence by reason of SW's failure to advise him that immediately following service of the ex parte order he could have applied to discharge the order or vary the terms or have the Court call for an undertaking in damages as a condition of its continuing. As it was he was deprived of that remedy when the truth emerged and the order was discharged. He sued for Discovery Bay rent of $17,763, costs, less those recovered, of $16,183, loss of earnings of $50,541, and Mr Edwards' bill of $23,530; in all $108,018, plus costs. In the event the matter was settled by SW paying to Mr Delhaise the sum of $120,000. A consent order to that effect was made in July 1992.

9.By now the marriage was effectively over. Miss Gioan's petition, amended to one for a divorce, had come before the Court in 1990. But Mr Delhaise chose to defend it; he was, after all, the victim of her adultery. Appearing unaided, he was successful. Returning to France, he initiated a divorce himself. Again unaided, his petition succeeded.

10.But Mr Delhaise was still unhappy. The events so far had not addressed what was a serious miscarriage of justice; a deliberate and cynical disregard by Miss Ser and Mr Glynn of their professional obligations to his ruination. Concerned that time was running out he issued on 17 June 1994 a writ against Mr Glynn, Miss Ser and HWG seeking damages for their misconduct. This has been called for short the 1994 Action and I shall continue to do so. It is the second of Mr Delhaise's three sets of proceedings. He drafted the statement of claim without legal assistance, using as he says books, documents he could get hold of and the internet. Perhaps could be added that he would have derived assistance from the proceedings he had by then been involved in. In any event the statement of claim had the appearance of being professionally drawn, though I accept that it was not. He recorded the descriptions of the parties, the terms of the ex parte order and the practical effect, that it was grounded in bad faith, maliciously and with ulterior motive and then, in detailed particulars, he pleaded why that should be so. The loss he claimed in damages was the Discovery Bay rent of $17,763, the unrecovered costs of $16,183 and the loss of earnings of $50,541 - the amounts that comprised the damages sought against SW in the proceedings ultimately settled. In addition he claimed $14 million for the loss of freedom between 26 July and 9 August 1988, that is $1 million per day, and aggravated damages as might be determined by the court.

11.My intention is to commend Mr Delhaise rather than criticise local standards when I state that I have seen many examples of proceedings less competently drawn.

12.The named defendants filed a defence. Recounting the history, it was pleaded that the ex parte order asked for and obtained was in direct compliance with Miss Gioan's instructions. She was concerned that Mr Delhaise had terminated the Discovery Bay tenancy and was planning to leave Hong Kong which would force her and the children to do likewise or face abandonment and penury in Hong Kong. They did as instructed in the honest and reasonably held belief that this was a reasonable, lawful and necessary remedy to preserve the family's status quo. Failure to disclose the correspondence which was to come before the judge on the return date was an oversight. It was further pleaded that whilst denying liability for damages there was no loss for the plaintiff had already been compensated his pleaded loss in the compromised action against SW; further, that a claim for unrecovered costs is bad in law.

13.Having filed his claim when he did to avoid it being time-barred Mr Delhaise was concerned about what he should do after that. He was by then, in 1994, in a more comfortable situation financially. But he was alive to the difficulties; he remembered Mr Bleach's somewhat pessimistic advice about his prospects. And Mr Edwards had told him his chances were slim; that it would be difficult to prove malice on the part of HWG's principal and employee; that there was no known precedent for a claim of this sort, most cases on malicious civil proceedings invariably involving bankruptcy proceedings and the like.

14.In October 1994 Mr Delhaise came to be introduced to Mr Christopher Erving, then a principal of Ng & Co., the first defendant herein. Early on in the solicitor-client relationship that developed Mr Erving was asked to consider the merits of Mr Delhaise's case and, depending on the result of that to decide whether or not he should take it on. What Mr Erving's advice was is in material dispute; my finding on that will lead inexorably to the outcome of this action; I shall return to that. What is not contentious is that Mr Erving's firm did agree to represent Mr Delhaise in his claim, Mr Erving having conduct throughout. A notice to act dated 12 December 1994 was filed. (The 2nd defendant, Erving Brettell, took over in August 1966 when the 1st defendant was dissolved and Mr Erving's subsequent firm, the 2nd defendant, came into being).

15.Matters moved on. On 26 April 1995 there was a check-list hearing. Mr Erving advised the wisdom of briefing counsel and Mr Delhaise instructed accordingly. Mr Allman-Brown was engaged. The brief is detailed; I highlight three excerpts.

" Your Instructing Solicitors' primary concern is whether or not the Plaintiff will be able to establish his claim in the light of the obvious defence of the Defendants that at all material times they were acting on the instructions of their client, the Plaintiff's ex-wife because if the Defendants can establish that that is the case, it is Instructing Solicitors' view that the Plaintiff's claim will fail.

...

Counsel should be made aware that attempts had been made to persuade the Plaintiff's ex-wife to give evidence because she has always maintained that she was told what to do by Glynn and Ser rather than be advised and then make her own decision. There is some suggestion of that in the disclosed documents. Unfortunately, she is not prepared to be involved. She now lives in France and has declined an invitation to speak to your Instructing Solicitors.

...

Counsel will please consider the papers and advise Instructing Solicitors and the Plaintiff on the prospect of succeeding with this quite noble claim."

16.In his witness statement subsequently deposed to as his evidence-in-chief in these proceedings Mr Allman-Brown stated:

"...
6.	After reviewing and considering the documents accompanying the instructions from Mr Erving, I perceived there to be a number of weaknesses in Mr Delhaise's claim. These were essentially the matters that had been raised in the Defendants' Amended Defence dated 10th February 1995 ... I was concerned in particular with the following matters:
	(a) In answer to the allegation of malicious prosecution, the Defendants had pleaded, inter alia, that the District Court Action and the ex parte application were not initiated by any of them but on instructions from Ms Gioan. If that were the case, it would be difficult if not impossible for Mr Delhaise to prove malice when all the Defendants did was to act in accordance with their client's instructions.
	(b) Having already recovered an amount of compensation from Stevenson, Wong & Co in an earlier negligence action against that firm (being High Court Action No. A1340 of 1992), Mr Delhaise could not claim from the Defendants in the Proceedings what in effect were the same heads of damages. This was the double recovery defence pleaded in paragraph 50(a) of the Amended Defence.
..."

17.On 26 May 1995 there was a conference, attended by Messrs Delhaise, Erving and Allman-Brown. Of this Mr Allman-Brown stated:

"	8.	I completed my reading of the case papers before I met with Mr Erving and Mr Delhaise in conference on 26th May 1995. The purpose of this conference was to discuss generally my view on the merits of Mr Delhaise's claim. During the conference, I explained to Mr Delhaise amd Mr Erving that I had serious conerns about Mr Delhaise's ability to establish both liability and loss. As to liability, I emphasised that in view of how the Defendants' Defence had been pleaded, it was clear to me that evidence from Ms Gioan needed to be produced to rebut the Defendant's assertion that they were acting under her instructions, and thus had not intended any malice towards Mr Delhaise. I told Mr Delhaise that it would be very difficult for him to prove malicious prosecution against any of the Defendants without supporting evidence from Ms Gioan.
	9.	On the question of quantum, I explained to Mr Delhaise that if he succeeded on the malice point, he would need to produce evidence of additional loss or damage in order to, first, rebut the Defendants' double recovery defence, and secondly, to base his claim for exemplary or aggravated damages. I pointed out that there appeared to be no evidence of any loss or damage above and beyond that represented by the amount of damages already received from Stevenson, Wong & Co. Mr Delhaise's response was to claim that the financial compensation he had recovered from Stevenson, Wong and Co did not reflect all the damages actually suffered by him. However, he could not explain to either Mr Erving or myself what further damages he had suffered."

18.It is apparent from Mr Allman-Brown's account that there were going to be difficulties and that Mr Delhaise was told of them.

19.Mr Allman-Brown prepared a draft amended statement of claim which he then sought leave to file. That was refused by order of November 1995. Mr Allman-Brown received no further instructions after that.

20.In the event a further application to amend the statement of claim was made by Mr Erving in March 1996. Leave was on that occasion granted. By the amended statement of claim malice was pleaded and particularized. The actual financial loss claimed to have been suffered was retained as before and the claim for $1 million per day was replaced by a claim for exemplary, alternatively aggravated damages.

21.In due course after an exchange of witness statements the trial date came to be fixed; namely 19 March 1997. About a month prior to that there was an attempt to settle initiated by HWG. This was, essentially, a drop hands proposal with gagging conditions. Mr Delhaise was not prepared to settle on these or like terms; and so the matter proceeded.

22.Mr Leo Remedios of counsel was briefed to represent Mr Delhaise. There were pre-trial conferences. Mr Remedios' witness statement, also to become his evidence-in-chief, deals with the sequence and what was discussed. Parts of that I reproduce as follows:

"	7.	Following my review of the Proceedings and my first conference with Mr Erving on 21st February 1997, I became concerned with a number of matters regarding Mr Delhaise's case as pleaded in his Amended Statement of Claim (filed on 14th March 1996), namely:
		(a)	The law in this type of malicious prosecution proceedings was not settled in Hong Kong or in England and Wales. By that I mean there was no direct Hong Kong or English precedent for a claim similar to that made by Mr Delhaise. Instead, the case law in this area was restricted to bankruptcy and company winding up cases.
		(b)	Factually, there was no evidence from Ms Gioan to deal with the Defendants' assertion, as pleaded in their Re-Amended Defence dated 2nd April 1996, that they intended no malice in bringing the ex parte application and the matrimonial proceedings on her behalf, but were merely acting on her instructions.
		(c)	Assuming that Mr Delhaise could establish liability against the Defendants on the malicious prosecution point, he would have difficulties in proving any loss or damage flowing from the conduct complained of, especially in relation to the claim for exemplary or aggravated damages.
		...
	8.	In particular, I did not have any evidence from Mr Delhaise that any loss or damage suffered by him was in fact over and above the amount he had already received from Stevenson, Wong & Co, in the earlier negligence action he had brought against that firm. It was pleaded in paragraph 47(1) of the Defendants' Re-Amended Defence, that Mr Delhaise had not suffered any loss or damage since he had "already recovered in the Stevenson, Wong Action an amount exceeding all of the pecuniary damages claimed herein and has thus been fully or substantially compensated for any damages he might otherwise recover in this action" ... This issue of double recovery was noted in paragraph 3 of my note ... as one of the matters to be discussed with Mr Delhaise when I meet him in conference."
	9.	Having considered the relevant authorities in this area of the law, I was also concerned about whether Mr Delhaise could establish liability against the Defendants in relation to his claim for exemplary damages. Again, my intention was to discuss this with Mr Delhaise in conference and I noted this in paragraph no. 6, at pages 10 and 11 of my note ...
	10.	Given the time which has elapsed, I do not have any specific recollection of my discussions with Mr Delhaise and Mr Erving in relation to my note. However, based on my usual practice of preparing for and conducting conferences with my instructing solicitors and clients, I believe that the sequence of events between me making the note and the conference on 28th February 1997 was as follows:
		(a)	A copy of the note was sent to Mr Erving so that he would be aware of the matters that I wish to discuss at the conference and prepare accordingly.
		(b)	Copies of my note were also circulated to those who attended the conference.
		(c)	The contents of my note were discussed between Mr Erving, Mr Delhaise and myself during the conference.
	11.	During the conference on 28th February 1997, I took both Mr Erving and Mr Delhaise through those matters listed at pages 1 to 3 of my note ..., and also briefly outlined what I considered to be the issues relevant to Mr Delhaise's claim as outlined at pages 4 to 11 thereof ... I emphasised to both Mr Delhaise and Mr Erving that they must adequately address the matters listed in paragraphs 7(c) and 8 above if Mr Delhaise was to have any chance of success in the Proceedings. Although I cannot now recall the exact details of our discussions, it is my clear recollection that, despite my advice, Mr Delhaise was adamant that we should progress the case to trial. We had a discussion in words to the following effect:
		I said: "The law in this area is not settled in Hong Kong or England and Wales. As such, it is possible that you might lose. Even if the law is on our side, I am very concerned factually about the loss and damage claimed. It should be noted that in this respect, the reliefs claimed in this action are similar if not identical to those claimed against Stevenson, Wong & Co. Further, I also have my doubts about the claim for exemplary or aggravated damages. I have not seen any evidence of this. Assuming that we could prove malicious prosecution against Hampton, Winter and Glynn, we would still need to link this with any actual loss and damage suffered by you. As I have said, I have not seen any evidence of this. You will need to address this point."
		He said: "I note your advice on the law. Although it appears to you that there are difficulties with the case, I still want to go ahead with it. Glynn needs to be held responsible for what he did to me. I want to see him in Court. As to evidence of loss and damage, I can deal with that.""

23.The trial started on schedule. Mr Remedios began by delivering a prepared opening address. The trial was not to advance beyond that. There is no transcript; the judge declined a request for one. Mr Erving's clerk called Miss Cheng was in attendance and took a note. Mr Remedios' account, backed up by the note, was that the judge had formed a view on the papers; not long into his submissions Mr Remedios was in a debate with him on whether the law on malicious prosecution could be extended to the circumstances of the case. Mr Remedios attempted to introduce some Australian authorities which he regarded as being in support. The judge declined to heed them. By the end of the second morning and the opening submissions not yet complete Mr Remedios had by now decided that the chances of success were negligible. He told Mr Delhaise. Various alternative courses were considered. One, that the question of law be determined as a preliminary issue, had already been refused by the judge. Another, that Mr Delhaise proceed, lose, and then look to the Court of Appeal was rejected by him because he was not prepared to invest anything more in the litigation. Finally it was agreed that Mr Remedios should negotiate a settlement, with a view to limit the other side's costs he would inevitably have to meet. The proposal that these be fixed at $500,000 was accepted; and so the case settled.

24.But before the judge released the parties he let it be known that he was considering an Order 62 rule 8 RHC costs order by which means a judge can, after first giving a solicitor the opportunity to be heard, order him to refund costs incurred by his client. The judge stated he was concerned that Mr Delhaise may not have been properly advised of the merits of his claim. On this point Mr Remedios stated:

"In reply, I advised His Lordship that:

(a) Mr Delhaise had been advised of the difficulties of his claim both in terms of liability and quantum; and

(b) In spite of such difficulties and advice, Mr Delhaise's instructions were to proceed the matter to trial."

25.In the event, by letter from the judge by his clerk one or two days later, the judge stated that he was not after all going to pursue an enquiry under O. 62.

26.A few days later Mr Delhaise wrote to Mr Erving. In it he stated that he was deeply affected by the judge's comments that he was thinking of invoking an O. 62 enquiry. He then went on to state that if the case was as hopeless as the judge had said it was he should have been told he had no cause of action. Then he wrote:

"All told, I am now wandering whether, in fairness to me, you should not ask yourself if the case was handled the best it could have been."

He then went on to propose a drastic revision of the 2nd defendant's fees.

27.Mr Erving's response was to state:

"I have discussed the hearing with Leo Remedios and we both remain firmly of the view that you did have a good cause of action, such that before another judge the result could have been quite different."

He went on then to criticize the manner in which the judge had conducted the trial. Dealing with the proposal that his fees be reduced; he was not prepared to accede to that course, whilst writing that if professional negligence was alleged Mr Delhaise should seek independent advice.

28.And that is what he did. The upshot was that by writ dated 27 November 2000 Mr Delhaise's present solicitors issued these proceedings, the third of the three to devolve from the ex parte order.

29.I come to the pleaded case next.

The Pleadings

30.In his statement of claim Mr Delhaise recites the circumstances leading up to the ex parte order being granted and the consequences; the claim against SW and the resultant settlement; the issue of the writ against HWG and others and the pleaded case; and then breach by the 1st and 2nd defendants of the implied terms of his contracts with them that skill, care and diligence would be exercised in the advice he was to receive from them. In particulars, he pleads that he should have been told the claim for damages had already been made and settled; that a claim for distress, mental anguish and loss of liberty would not, even if successful, have warranted a prosecution; that malice in the circumstances of the case would have been very difficult to prove; that the claim for exemplary or aggravated damages stood no chance of success without proof of malicious prosecution. Thus he pleads that through the 1st defendant Mr Erving should have advised him "that the 1994 Action stood very little chance of success and that even if it were to succeed there was a substantial risk that the damages awarded might be below the High Court limit"; further or in the alternative, Mr Erving through the 2nd defendant should not have advised him to settle at the trial of the 1994 Action if he was of the view that Mr Delhaise had reasonable prospects of succeeding; on the other hand if he was not of that view it was negligent of him not to have advised him at a much earlier stage.

31.What is claimed are the costs incurred and paid to the 1st and 2nd defendants of $589,507 and the settled costs of the 1994 Action of $500,000, interest and costs.

32.By their defence the 1st and 2nd defendants deny the negligence pleaded. The advice of Mr Allman-Brown was referred to. On 29 March 1995 and again on 23 November 1995 Mr Erving gave Mr Delhaise advice of the difficulties that he would be facing in establishing liability and quantum; in particular, that damages claimed had already been recovered, that there was no evidence of loss associated with the loss of freedom; that there was a need to prove malice; that there was a need to overcome the defence that HWG was acting on client's instructions; that exemplary and/or aggravated damages must be evidenced by loss flowing from the malicious prosecution; notwithstanding such advice the plaintiff instructed that the 1994 Action proceed to trial. As to the events at the trial itself Mr Delhaise was advised by counsel of the difficulties of his case; notwithstanding, his instructions were to proceed. The plaintiff instructed both Mr Erving and counsel to pursue settlement upon advice from counsel that the judge's inclinations were by then sufficiently telegraphed to make it clear that the action would not succeed.

The Issue

33.That being the pleaded case it becomes apparent that the central issue is as to whether Mr Erving in his capacity as Mr Delhaise's solicitor through the conduct of the 1994 Action exercised the necessary level of care, skill and attention of a reasonably skilled solicitor in the advice that he gave Mr Delhaise as his client. Crucial to the outcome is whether or not Mr Erving warned Mr Delhaise of the difficulties he would have to surmount in achieving a successful prosecution. I come to deal with that next by reviewing the accounts of the principal protagonists.

The Evidence

34.First, that of Mr Erving.

35.He stated in his witness statement that was to become his evidence-in-chief that he was first instructed by Mr Delhaise in early October 1994. Then it was there was a meeting at which Mr Delhaise introduced him to the history, taking him through documents and the pleadings of the 1994 Action already filed. Mr Erving noted the claim was essentially one of malice. He told his client he would need to prove improper motive. He told him he could not advise him properly on the merits of the claim until after discovery had been completed. Between October and December Mr Delhaise supplied him with the documents he needed for the List of Documents. There were meetings between solicitor and client in March, during the course of which Mr Delhaise's draft of evidence was reviewed and discussed. There was a particular meeting of 29 March. I repeat verbatim Mr Erving's evidence about that:

"	14.	On 29th March 1995, I met Mr Delhaise in the First Defendants' offices to discuss my amendment to his draft statement. During the meeting, I discussed with Mr Delhaise the merits of his claim generally and more specifically, the evidence that I needed him to produce in support of his claim. I emphasised that there were, in my view, a number of difficulties with his claim. I explained to him that it would be difficult for him to prove malice on the part of the Defendants without any direct evidence from Ms Gioan to rebut the Defendants' defence that they had acted under her instructions, and thus that no malice could have been intended. I said to Mr Delhaise in words to the following effect:
			"It is difficult anyway, but even more difficult if we do not have evidence from your ex-wife of her instructions to Hampton, Winter and Glynn."
		Mr Delhaise's response was that he would try to contact Ms Gioan and ascertain whether she would be prepared to assist.
	15.	In relation to the quantum of Mr Delhaise's claim, I was concerned with the double recovery defence raised by the Defendants, which in effect asserted that Mr Delhaise had already recovered from the 1992 Action an amount exceeding all the damages claimed in the Proceedings. I pointed out to Mr Delhaise that he would, therefore, need to produce evidence of any loss or damage suffered above and beyond what he had recovered from Stevenson, Wong & Co. I explained that his draft statement did not address this point. I made it clear to Mr Delhaise that without such evidence, he was unlikely to be able to recovered any damages, apart from a nominal amount, even if he was successful in establishing liability against the Defendants. Mr Delhaise agreed that he would take the amended draft away and consider my amendments. However, he told me that despite my advice he would nonetheless like to proceed the claim to trial as soon as possible. He said words to the effect of:
			"I want this to go before the Court as soon as possible. I want to expose these people. I want to go ahead with this."

36.He also identified the difficulty in establishing a claim arising from his client's involuntary detention in Hong Kong. He stated:

"	... Mr Delhaise's only comment was: "My suffering was more mental than physical, but injury there was. Since Glynn cannot, alas, be sent to jail for what he did, a hefty financial punishment seems to be the only appropriate remedy" ...
17.	I did follow up the loss and damage point with Mr Delhaise shortly after my review of his letter on 21st and 22nd April 1995. However, I made no progress on this since all Mr Delhaise wanted me to do was to set the Proceedings down for trial, and he took the view that the claims for loss and damage as pleaded in the Statement of Claim were justified by reason of the mental anguish he had suffered. As far as I was concerned, I had already advised Mr Delhaise of the merits of his case. It was open to him to decide what action he should take in view of my advice. To that extent, he chose to proceed with the claim against the Defendants and instructed me accordingly."

37.What Mr Erving did not do, as he freely conceded from the witness box, was to write to Mr Delhaise or otherwise make a contemporaneous note of his advice to Mr Delhaise of the merits of his case.

38.He went on to describe Mr Allman-Brown's involvement; in particular, that in his view the defendants (HWG et al) had prima facie a viable defence; further, that without evidence from the ex-wife it would be very difficult to establish malicious prosecution. Mr Delhaise's response was that he wished to press on to trial.

39.There was a further discussion after leave to amend the statement of claim was first refused, on or about 23 November 1995. Of this he stated:

"21.

Shortly after this, I asked Mr Delhaise whether he wished to continue with his claim in view of Mr Allman-Brown's and my views on the difficulties that he faced in establishing both liability and quantum in the Proceedings. However, Mr Delhaise was adamant that he would like to see the Defendants being brought to justice and Mr Glynn being cross-examined in Court, and therefore instructed me to progress the Proceedings to trial."

40.Moving on to the briefing of Mr Remedios and conference, he recounted counsel's advice as to the difficult features of the case; I have already spelt out Mr Remedios' account about that. Then he stated:

"	26.	It was agreed between Mr Remedios and myself that Mr Delhaise's claim was by no means hopeless. Our view was that he had some chance of establishing liability against the Defendants. I recall Mr Remedios saying to Mr Delhaise words to the effect of:
			"You have got an uphill battle my son. It is a very difficult case. However, there is a possibility that you could give this a shout."

Of course, as it transpired, there was indeed some shouting; but not of the positive kind. The advice to settle and Mr Delhaise's acceptance of that and the post-settlement exchange between counsel and judge has already been dealt with. Mr Erving concluded his statement with the following:

"40.

As will be apparent from the matters set out above, I believe that Mr Delhaise was properly advised of the difficulties with his claim, and that he chose to continue with the Proceedings on a fully informed basis. His allegations against Ng & Co and Erving Brettell are completely without foundation."

41.I come now to the evidence of Mr Delhaise. His account of his introduction to Mr Erving and subsequent involvement with Mr Allman-Brown concluded with these paragraphs:

"	30.	I recall there was a conference with Allman-Brown where I was advised that if my wife came to give evidence it will be very helpful to my case but I was not told that if she did not it would be fatal to the 1994 Action. I told Allman-Brown and Erving at the conference that I would not be able to secure her co-operation to be my witness.
	31.	I was advised by Allman-Brown that I had a reasonable case against the defendants in the 1994 Action and it was Glynn who had to prove that he acted on the instructions of my ex-wife and not the other way around."
	32.	The difficulty of proving malice was discussed in the meeting and the loss and damage was also discussed but I was told that the burden of proof was on Glynn to prove he acted on my wife's instruction and not for me to disprove.
	33.	I originally claimed for HK$14,000,000 but this was then amended to exemplary damages to be assessed but at no time was I asked to supply Erving with evidence of exemplary damages. Erving knew very well that I had recovered HK$120,000 from SW. However, he did not plead in the Amended Statement of Claim that I should have to give credit for it and neither did he advise me that this was to be the case.
	34.	I was never told that my special damages claimed in the sum of HK$84,000 and interest had overlapped because I had already been paid HK$120,000 by SW.
	35.	I was never told that my action was doomed to fail for the reasons they set out in the Defence of the First Defendant and the Second Defendant filed on 30 January 2002 ("the Defence") or otherwise I would not have proceeded.
	36.	Erving had advised me that the case was not going to be easy, but he never advised me that there was such a serious imbalance between the likely costs of losing and the likely level of damages, if awarded. I was not made fully appraised of the difficulties in law and the extent of HWG's potential liability as to damages. There never was a discussion about how such difficulties rendered the case so hazardous from the pure financial point of view. In my precarious financial circumstances at that time, their was little doubt that I would have given up had I been made aware of it."

42.Dealing with Mr Remedios' engagement as counsel and events thereafter he stated:

"	38.	Erving briefed Mr Leo Remedios of counsel ("Remedios") at a later stage when Erving needed a barrister to conduct the action. In all discussions I had with Erving or Remedios, the focus was always on whether I would be able to substantiate my accusations of malice, beyond the obvious fact of non-disclosure, but it was never on whether there was a cause of action as a matter of law. I am surprised that they did not stop me from proceeding in the light of the difficulties they now expressed in the Defence.
	39.	On 4 February 1997, shortly prior to the trial of the 1994 Action which was fixed to begin on 19 March 1997, the Defendants in the 1994 Action had made a Without Prejudice offer to settle the case. Due to Erving's advice that the claim would be successful, I had rejected the offer.
	40.	At the very beginning of the trial of the 1994 Action [the judge] had given an indication that on the law there was no cause of action. It was for the first time I realised that I could fail on a very basic point of law yet it was not disclosed to me by my solicitors. After further considerations and upon advice from Erving and remedies, I consented to pay the Defendants' costs of the action, estimated by then to be a sum of HK$1,300,000. The 1994 Action was ordered to be dismissed by Consent on 20 March 1997.

(In fact of course the defendants' costs were settled at $500,000. The $1.3 million referred to is the sum the defendants estimated they would have to pay.)

43.Before departing from the evidence there are documents which I want to deal with as having particular relevance, for they go to Mr Delhaise's demeanour on the issue of a suit against HWG, Mr Glynn and Miss Ser.

44.The first is a contemporaneous note of a meeting between members of HWG, Robin Egerton and David Cotterill, and Mr Delhaise. It is undated, and when it took place is not clear, save that it was apparently before Mr Delhaise filed his 1994 Action writ. It is not long; I shall repeat it verbatim. It seems to have been penned by Mr Egerton whose initials it carries.

"	ATTENDANCE NOTE
8.30 am - Mandarin Hotel
Present	Mr Delhaise -	D
	David Cotterill-	C
	Robin Egerton-	E
E asked D what he wanted.

D replied that David Glynn (DHG) had blackmailed him and ruined his life and therefore he wished to have DHG struck off the roll of solicitors.

E said that an issue was whether we had deliberately concealed the letters or whether it was a mistake. D replied that it could not possibly have been a mistake by a firm of our standing an experience and no-one would believe that it was.

D went on to say he had successfully defended the Divorce Proceedings in Hong Kong and obtained a divorce against his wife in Belgium whereby she was proved 100% guilty and he 100% innocent.

C enquired as to the legal basis of the claim and he replied that he had been advised that he had one but preferred not to discuss it.

C enquired of D who his lawyers were. D replied Alsops but would not disclose which solicitor was acting. C asked how D justified the claim for $14m. He referred to his letter and said that further it was 1 million per day. C asked D how he justified the $1m per day. D replied that he had not come to the meeting to discuss this.

C enquired whether we could discuss the matter with D's lawyers and find out the basis of the claim. D replied no and that he would be issuing the writ himself.

D said he had no assets when the injunction was obtained and the injunction ruined his life.

C enquired if he had taken legal advice to seek an immediate variation of the injunction. He said no.

He said that he would be on an overseas trip to Korea in the next week and wanted to be in Hong Kong when the writ was issued because of the publicity. He said that even if he lost on a technicality (although he had been advised that he had a strong case) he wished the public to know of what sort of person DHG was and how his (D's) life had been ruined. He said he believed that the public would be very interested in this.

E referred him to the fact that he wished to have DHG struck off, was that what he wanted as opposed to the financial claim and if so what was HWG expected to do.

D replied that of course he had his price and that although he preferred to have DHG's head on a stake he would accept financial compensation.

He said the result would have been quite different had a responsible response been made to his earlier request for compensation on the costs.

E enquired whether he was interested in any alternative form of dispute resolution. D replied no that he wanted the matter out in the open so there was publicity. D went on to say that he would be naming DHG and SAS in the writ. E then said was it a question of having him deny it in court with the attendant publicity (whatever the result). D replied yes.

He said he had considered naming RNE but had decided against it in view of his very limited role.

C invited D to consider allowing time for us to consult with the partners as to our position. This could not be accomplished in one day. He agreed to allow us a week, whilst he was away.

The meeting ended with D saying the ball was in HWG's court and that if he did not hear from us by Friday of next week he would be issuing a writ. He said he did not think he would be able to issue the Writ until the Monday after the Friday. He stressed that he now had the funds to prosecute the litigation and that he really wanted to go for litigation so that everyone would see what had happened to him and that we should not imagine that he did not like litigation.

RNE"

45.Taken to the document Mr Delhaise from the witness box could not remember the detail, but also said he had no reason to believe it was not an accurate summary. What emerges from this is the following:

(1)	Mr Delhaise said that Mr Glynn had ruined his life.
(2)	Mr Delhaise wanted Mr Glynn struck off; further, that financial compensation was secondary to having Glynn's "head on a stake".
(3)	Alternative dispute resolution was not an alternative to a writ; he wanted the publicity.

46.The second set of documents are faxes sent by Mr Delhaise to Mr Erving on 5 January and 22 June 1996, as follows:

"January 5, 1996

Fax to the attention of CHRIS ERVING

Dear Chris,

Following my January 3 fax, your secretary called to say that the amended writ had been sent to the enemy, but that they are pleading for more time "to consult counsel".

These people are playing games, once again.

I am asking you to go by the book and grant NO DELAY WHATSOEVER, either for them to agree on the new version (please make an immediate application to Court if need be), or, later for them to file their response.

I want you to go for the jugular and to hold it very tightly until the beast is killed.

If you need to get in touch with me, please call my secretary Catherine Maxwell who will know how to reach me. If she is not in, and the matter is urgent, you may talk to Mr Chris Evans of Mr Damien Wood at my office.

Thank you.

Best Regards,

Philippe Delhaise

Tel. 2868 4881

Fax 2521 7082"

"TO : Mr Chris Erving

Ng & Co., Solicitors

FAX NO: 2521 4792

FROM : Mr Philippe Delhaise

DATE : 22nd June 1996

Total number of page(s) including this page: 1

____________________________________________________

Message

Dear Chris,

I am sure you will agree with me that at the next opportunity the judge should be made aware, in no uncertain terms, that HWG is playing a game of buying time at any rate. They started doing so as early as two years ago, when the first writ was filed, by not even filing their defence until after a delay of 3 months.

Granted, we ourselves are responsible for a delay of a few short months on account of amendments, and also HWG's attitude is not endearing them to the judge, but enough is enough and I want you to become very vocal in getting the case up for trial.

If we wait any longer, those beasts will retire before we can impeach them.

I shall be in South East Asia and Australia until July 13th, but please keep my secretary, Anna Power, informed to any developments.

Thank you.

Yours sincerely

PHILIPPE DELHAISE"

47.What emerges from these are the following:

(1)	that Mr Delhaise was anxious to prosecute his claim with instructions to challenge delaying tactics;
(2)	references to "the enemy", "go for the jugular and to hold it very tightly until the beast is killed", and "if we wait any longer these beasts will retire before we can impeach them" are dramatic illustrations of how Mr Delhaise viewed his opponents.

48.That being the evidence I turn now to the law to be applied.

The Law

49.The obligations of a solicitor to his client are well settled and are not, I believe, in dispute. They have been summarized by Stock J (as he then was) in Foshan Hua Da Industrial Co. and Johnson Stokes & Master (a firm) [1999] 1 HKLRD 418. For completeness I repeat verbatim what he stated at p. 425:

"The law

The following principles of law are particularly germane:

(1)	A retained solicitor owes a duty to his client, both in contract and tort. There arises, when a solicitor is engaged for reward, a contractual duty to exercise skill and care on behalf of his client. A solicitor is not expected or bound to know all the law, nor is he to be judged according to the standard which might be demonstrated by "a particularly meticulous and conscientious practitioner". (See Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 at p. 403.)
(2)	The duty of a solicitor is "to exercise that reasonable degree of skill and care to be expected of a competent and reasonably experienced solicitor" (Clerk and Lindsell on Torts (17th ed.) para. 8-81). "The test is what a reasonably competent practitioner would do having regard to the standard normally adopted in his profession." (See Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 at p. 403.)
(3)	"If in the course of taking instructions a professional man like a solicitor learns of facts which reveal to him as a professional man the existence of obvious risks then he should do more than merely advise within the strict limits of his retainer. He should call attention to and advise upon the risks." (Per Lawton LJ in Boyce v Rendells [1983] EG 268 at p. 272.)
(4)	Where a solicitor is asked to advise upon one matter then, as a general rule, he is not obliged to advise on different points though related, unless the connection is so close and reliance placed in the solicitor to advise generally so obvious, that advice on related points may be required. (Clerk and Lindsell on Torts (17th ed.) para. 8-89.)
(5)	The duty of a solicitor might be affected by the experience or inexperience of the client, in the sense that a client inexperienced in the field in which he seeks advice is "entitled to expect the solicitor to take a much broader view of the scope of his retainer and his duties than will be the case with an experienced client." (See Carradine Properties Ltd v DJ Freeman & Co (1985) 1 PN 41.)
(6)	"The standard of care to be expected of a professional man must be based on events as they occur in prospect and not in retrospect." Per Simon Brown LJ in Boston & Co v Roberts (unrep., The Times, 17 March 1995), who then cited Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172 at p. 185:
	In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence.
(7)	A solicitor is not, in the absence of unequivocal instructions and acceptance by him to do so expected to advise upon the commercial good sense of a business proposition, whether he should or should not, as a matter of commercial advantage, proceed with a transaction, whether a transaction is or is not good business or prudent, although where it is evident that a client relies on the solicitor for more than legal advice, the solicitor may be under a duty to refer the client to an appropriate source or sources of information. (See Yager v Fishman & Co and Teff & Teff [1994] 1 All ER 552; Reeves v Thrings & Long [1996] PNLR 265; Clark Boyce v Mouat [1994] 1 AC 428). Indeed, "it is in general the client's privilege if he so wishes to mismanage his affairs. He is entitled...to lend on insufficient security, or to enter an unwise bargain if he so chooses. The solicitor has a duty to advise on the legal hazards of the transaction, but no more:
	It was the duty of the solicitor to inform and advise, ensuring that the information and advice was understood by the client. It was not part of his duty of care to force his advice on the client.
	If that advice is disregarded he must carry out the client's instructions or else determine the retainer". (Jackson & Powell on Professional Negligence (4th ed.) para. 4-92, citing Dutfield v Gilbert H Stephens & Sons [1988] Fam Law 474).
(8)	"The onus of proving professional negligence over and above errors of judgment is a heavy one." (See Rondel v Worsley [1969] 1 AC 191.)

50.An important duty in the context of this case is to advise a client of the hazards of a course of action that he is proposing to embark upon. So, a solicitor engaged to represent the client in a contentious matter should always put his mind to the merits of his client's case. If he considers the proposed claim or defence to be hopeless he should say as much, even if not specifically asked to form a view. - see Jackson & Powell on Professional Negligence, 5th edition 10.165. But where that advice is given and the client nevertheless wishes to proceed the solicitor must do so, or withdraw. By doing so, he cannot be held liable in negligence or breach of contractual duty. I quote from Cordery on Solicitors, 9th edition 371:

"[371]

In contentious business or where litigation is likely, it is the duty of a solicitor to make proper investigation into the cause of action, or otherwise to ascertain the relevant facts, so that either he or, if instructed, counsel, can form an opinion as to whether a cause of action exists, or is likely to succeed, or a defence is sustainable. If he decides no good cause or defence exists, it is the duty of the solicitor so inform the client, but if the client nonetheless insists on proceeding, the solicitor is under no liability in negligence; and if the client chooses not to follow the advice, the solicitor is under no obligation to compel the client to accept it, as long as he has made sure that the advice has been understood. However, it is not the duty of the solicitor "to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence before the court, so that the mere fact that a claim or defence failed is neither, of itself, negligence nor necessarily evidence thereof."

51.Where it is disputed as to what advice was given on the merits of a client's case, a strong indication against the proposition that proper and appropriate advice was given is the absence of an attendance note or other written communication. As was stated by the editors of Jackson & Powell (supra) at para 10.174:

"There is no substitute for a proper attendance note, recording the gist of the advice that was given. The lack of attendance notes has materially increased the number of successful claims that are brought against solicitors."

52.One assumes that the difficulty a solicitor faces in establishing that advice was given against his (former) client's assertion to the contrary is that he will inevitably have to recall a conversation going back several years during which there will have been numerous similar situations to cloud his recall. The client by contrast probably will have only the one to hark back to.

53.One further principle needs to be recorded; once the solicitor has told his client of material difficulties and he instructs the solicitor to proceed regardless, there is no need for him to keep repeating his advice. The editors of Clerk and Lindsell on Torts 17th edition stated at p. 59:

"If he has given the client competent advice and ensured that the advice is understood, the solicitor is not in breach of duty in not forcing the client to accept that advice so as to save him from his own folly, ... he is not generally required to remind his client of advice once given."

54.One can see the logic of this. Once a client has made up his mind to pursue a course of action, alive to the risks associated, it would be irritating in the extreme to be constantly reminded that he is unwise to be doing so by the person entrusted to do his best to make it happen, notwithstanding the odds.

Findings

55.Mr Erving did not commit pen to paper as to what it was he said to Mr Delhaise in the early days of their association. He stated from the witness box that this was once a personal failing; but no more. Now he does so conscientiously. That may well be so; but for this case he is in the position of a busy practitioner whose memory is asked to retrieve conversations nearly nine years old without the assistance of a contemporaneous note.

56.However there are many other material factors. Mr Delhaise came to the 1994 Action no stranger to litigation. He had mounted a successful claim in the 1992 Action, unaided. He had defended and defeated his wife's petition for divorce and then succeeded with his own, also without legal help. He was the author of the original statement of claim in the 1994 Action, and I have already commented on the high standard of that. From Messrs Edwards and Bleach of counsel he had learned early on of the difficulties. And he is, as I have said, well educated and qualified and articulate. He came to Mr Erving already knowledgeable in the law and of his case's shortcomings. So if he was, as Mr Erving attests, told that his chances were slim or words to that effect, he was told nothing new.

57.But let me assume for the moment that he was not; that Mr Erving did not as he attests tell him the case was a difficult one. Certainly in the fullness of time he was told of such difficulties by both counsel who came to represent him. Their advice separately given was unequivocal; that proving malice was going to be a struggle; that he would need to provide proof of loss beyond what had already been won from SW; that the defence of acting in the interests of a client was a viable one.

58.Thus he had ample opportunity to accept that there were to be problems and pull out at a number of milestones along the way. That he did not is a compelling factor towards the proposition that he got the same advice at the outset, from Mr Erving.

59.I believe a further important feature of the case is the depth of feeling exhibited by Mr Delhaise against those members of HWG who played a role in the prohibition order having been granted ex parte. References to "Glynn's head on a stake"; "go for the jugular" "until the beast is killed" are graphic and self-evident. Reading and listening to the evidence as a whole, I form the view that whilst monetary compensation was Mr Delhaise's primary motivation in running the 1994 Action, not far behind was a wish, harboured for all the years since 1988, to have HWG members publicly grilled to their discomfort and embarrassment; winning the case was not a necessary function to achieve that.

60.I am satisfied that from the outset Mr Delhaise was apprised of the difficulties he faced in prosecuting the 1994 Action. He was reminded of these as the case progressed to trial by both counsel as well as Mr Erving. He was not interested in behind the doors resolution (the meeting pre-writ) or a drop hands settlement (the proposal pre-trial).

61.The judge's robust treatment of his case was an unusual approach and one his solicitor and counsel could not have expected. It may have been that and the judge's preliminary view on costs that sparked his feeling that he had not been well treated by those representing him. Perhaps so. But having had the advantage of reading and hearing all the evidence adduced I form the view that Mr Erving did exercise such care and skill to be expected of a reasonably competent solicitor at the outset and thereafter. Given the judge's stated position after a day and a half of debate, I find there was nothing improper about the advice given to settle at that point, having regard to the circumstances.

62.There was no breach of contractual duty and no negligence by either of the defendants; the claim fails, with judgment in favour of the defendants. Costs, nisi at first instance, are to the defendants.

Representation:

Mr C Smith, SC, instructed by Messrs Susan Liang & Co., for the Plaintiff

Mr N Kat, instructed by Messrs Herbert Smith, for the 1st and 2nd Defendants