John Arthur Wright v. Hampton Winter & Glynn (A Firm) and Another

DCMP3233/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3233 OF 2007

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BETWEEN

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Coram : H H Judge Lok in Chambers

Date of Hearing : 20 November 2007

Date of Ruling : 20 November 2007

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R U L I N G

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1.This is an application by the Plaintiff for an injunction to restrain the Defendants from continuing to act as solicitors for his wife in the related matrimonial proceedings in the Family Court, based on the claim on breach of fiduciary duty and possible conflict of interest under the professional code of conduct for solicitors.

2.Before I proceed to deal with the merits of the application, I do have some reservation as to whether this Court has the jurisdiction to entertain such claim.  I have therefore invited the parties to make submissions on this particular issue.  After hearing the submissions, I decline jurisdiction to hear the claim and I now give my reasons.

3.In the case of Wong Kam Chi v Lee Tik Ying [2002] 1 HKLRD at 420, I have already made the following points about the jurisdiction of the District Court:

(i)	the District Court is a court created by statute, its jurisdiction and power are limited by the provisions in the District Court Ordinance, Cap.336, and the Court has no inherent jurisdiction to hear all kinds of claims;
(ii)	the main provisions in the District Court Ordinance which confer jurisdiction on the District Court are ss. 32, 33, 35 and 37;
(iii)	ss. 48(1) and 52 of the District Court Ordinance, which deal with the power of the Court to grant various relief, redress and remedy, only provide ancillary jurisdiction to the District Court to make various kinds of orders once the jurisdiction to hear a particular case has been established, and the wordings of those provisions are not to extend the primary jurisdiction of the District Court.

4.Applying these principles, it is clear that this Court has no jurisdiction to hear the present case.  The claim does not fall into any of the primary jurisdiction provisions in ss. 32, 33, 35 and 37 of the District Court Ordinance.  Mr Surman, counsel for the Plaintiff, seeks to rely on s. 52.  However, as I have mentioned in Wong Kam Chi, unless the District Court has primary jurisdiction to hear a particular claim, this Court cannot invoke the section, which concerns ancillary jurisdiction of the Court to make declaration, to extend the jurisdiction of the District Court to hear all kinds of claims which involve a claim for injunctive relief. 

5.Mr Surman also submits that the District Court has inherent jurisdiction to make order to regulate the conduct of proceedings in its own Court.  As the related matrimonial proceedings are commenced in the Family Division of the District Court, the District Court has inherent jurisdiction to make the order sought. 

6.The jurisdiction and power of the District Court are similar to those of the County Court in England, in the sense that both courts are creatures of statutes which have limited jurisdiction.  In Langley v North West Water Authority [1991] 3 All ER 610, the issue was whether the County Court has inherent jurisdiction to issue practice directions to regulate the conduct of the cases in its own court, and the English Court of Appeal accepted that the County Court has such kind of inherent power.

7.Langley may support the proposition that the District Court has similar inherent power to make order to regulate the conduct of proceedings in the Court.  But in my judgment, what the Plaintiff cannot do is to issue a separate action in the District Court, inviting the Court to interfere with the conduct of the case in another action in the District Court.  By doing so, the Plaintiff is actually asking the Court to exercise its supervisory role in respect of the conduct of another case.  Imagine that the Commissioner of Inland Revenue commenced a tax-recovery action in the District Court.  The taxpayer somewhat seeks to argue that the commencement of the proceedings was unlawful.  The taxpayer then commences a separate action in the District Court, inviting the Court to declare that the commencement of the proceedings in the original action was unlawful.  The taxpayer argues that the District Court has inherent power to make a declaration in the new action because it is only regulating the conduct of proceedings in its own Court.  This simply cannot be right. 

8.In my judgment, if the Plaintiff is asking the District Court to invoke such inherent power, the application must be taken out in the primary matrimonial proceedings.  If that is not an appropriate option because it would be undesirable to involve other parties in the matrimonial proceedings, the only option left for the Plaintiff is to commence a separate action in the Court of First Instance, which has unlimited jurisdiction to hear all kinds of claims including the exercise of a supervisory role relating to the conduct of another civil proceedings. 

9.These are the reasons for me to decline jurisdiction to hear this particular claim. 

Mr Surman, instructed by Messrs Haldanes, for the Plaintiff

Ms Mairead Rattigan, instructed by Messrs Hampton, Winter & Glynn, for both Defendants