Li Chi Loy v. Li Lai Lan Candiac and Others

HCAP4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.4 OF 2003

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Before : Hon Poon J in Chambers

Date of Written Submissions : 24 July 2008

Date of Decision on Costs : 25 August 2008

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DECISION  ON  COSTS

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A.  Introduction

1.In the judgment handed down on 10 July 2008 (“the Judgment”), I allowed the plaintiff’s claim.  The 2001 Will was admitted to probate as the Deceased’s last will.  This is my decision on the costs of the action. 

2.I have already considered the parties’ submissions filed pursuant to my direction with care.  In essence, the plaintiff argues that costs should follow the event.  The defendants’ primary position is that their costs should come out of the Deceased’s estate.  They next contend that in any event certain portions of the costs including those wasted as a result of the plaintiff’s language difficulties[1] should be borne by the estate. 

B.  The general principles

3.The generally principles are well established.  See Nina Kung v. Wang Din Shin (No.2) (2006) 9 HKCFAR 800, paragraphs 10-19, at pp. 807F-810G.  For present purposes, I will summarize them broadly as follows :

(1) The award of costs between parties in contested probate proceedings is in the court’s discretion.

(2) While costs generally follow the event, where opposition to a will is unsuccessful, two exceptions exist :

(a)  where the conduct of the testator or the residual beneficiary was the sole or dominant cause of the litigation, the costs would come out of the estate (“the 1^st exception”); and

(b) where circumstances led reasonably to an investigation of the will’s validity, there will be no order as to costs (“the 2^nd exception”). 

(3) The manner in which the challenge to a will is mounted may determine the court’s approach to costs.  A case may fall prima facie within one of the two exceptions but if opposition to the will goes beyond putting the proponent to strict proof of its validity and takes the form of hostile litigation, the general rule of costs following the event is likely to be applicable. 

(4) It follows that in exercising its discretion, the court draws a distinction between litigation reasonably undertaken by a person in order to require the validity of a will to be investigated by the court, and litigation which is fundamentally hostile, where the opposing party takes it upon himself to establish a positive case such as forgery, fraud or undue influence, with a view to defeating the will and advancing his own claim to the estate over that of the will’s opponent.  In the latter scenario, the opponent of the will, who has lost, is generally made to pay the costs. 

(5) In judging whether the party opposing the will comes within either exception, the court “must look at the facts and view them as they were presented to the unsuccessful party”.  This however does not justify an ill-considered and precipitous decision to litigate in opposition to a will.  The opponents must have taken all proper steps to inform themselves as to the facts of the case before undertaking the proceedings if they are to take themselves out of the general rule of costs following the event. 

C.  Discussion

4.Mr Lo, for the defendants, argued that the 1^st exception applies so that the costs of the action, including the costs of the defendants, should come out of the Deceased’s estate.  He did not seek to invoke the 2^nd exception.  

C.1.   The plaintiff’s conduct

5.Mr Lo first argued that the plaintiff’s conduct constituted the sole or dominant cause of the litigation.  He relied on my finding that the plaintiff and his family had concealed the Deceased’s whereabouts since his departure to the Mainland from the defendants on 6 December 2001, thereby cutting any means of communication between them;[2] and that some other indicators of possible undue influence existed.[3]  The plaintiff had in the circumstances brought upon himself suspicion of his trying to exert undue influence over the Deceased. 

6.In my view, Mr Lo’s argument explains why the defendants chose to raise the issue of undue influence and fought it to the bitter end.  But it does not mean that the plaintiff’s conduct complained of is the sole or dominant cause of litigation. 

7.The plaintiff’s conduct complained of must be considered with other facts known to the defendant.  There was no ambiguity in the terms of the 2001 Will.  Contemporaneous documents prepared by the notary officers and the attending doctor supported the plaintiff’s version of how the 2001 Will was executed and demonstrated the Deceased knew and approved of its contents.  The Deceased disposed of his properties in Canada in favour of the defendants in October 2001, which showed that he did not really regard the 1996 Will as his last testamentary wish and arrangement.  Then he made the 2001 Will in favour of the plaintiff, his natural and eldest son. 

8.When all the relevant circumstances are taken into account, the plaintiff’s conduct is clearly not the sole or dominant cause of the litigation.  Rather, the dominant cause is the defendants’ adamant refusal to accept the validity of the 2001 Will, which is quite unsupportable when the overall evidence is examined objectively. 

C.2.   The Deceased’s conduct

9.Mr Lo next contended that the Deceased’s conduct was the sole or dominant cause of the litigation.  He argued that the Deceased could have informed the defendants of his intention of returning to Hunan and of making the 2001 Will.  He could have instructed his lawyers in Canada to make a new will.  Had he done so, the litigation could have been avoided. 

10.The defendants might well have been surprised by and even refused to accept what the Deceased had done.  But as I have found, the Deceased did not suddenly disinherit the defendants’ side of the family.  The making of the 2001 Will was entirely consistent with his character and love for all his family members.  His conduct or omission to do certain things does not amount to the sole or dominant cause of the action.  As I have observed above, the dominant cause is the defendants’ adamant refusal to accept the validity of the 2001 Will.

11.For the above reasons, I rule that the 1^st exception does not apply. 

C.3.   No reliance on the second rule in Barry v. Butlin being triggered

12.It is rather surprising that Mr Lo did not rely on my finding that the second rule in Barry v. Butlin (1838) 2 Moo PC 480 was engaged[4] to support his contention that the 1^st exception applies.  For as observed by Riberio PJ in Nina Kung,[5] cases held to have been caused by the conduct of the residual beneficiary generally arise out of situations where that conduct is the pivotal cause of the litigation and many such cases come within the second rule in Barry v. Butlin. 

13.In my view, it is certainly arguable that because the second rule in Barry v. Butlin was engaged, the 1^st exception and indeed the 2^nd exception are prima facie triggered here.  But since Mr Lo placed no reliance on the second rule as a basis for invoking the 1^st or the 2^nd exception, I will just leave the matter there.  In any event, as I shall explain below, it makes no difference even if the 1^st or the 2^nd exception is prima facie triggered. 

C.4.   Hostile litigation

14.Even if the 1^st exception or the 2^nd exception is prima facie triggered, the manner in which the defendants had conducted this litigation would render it inapplicable.  It is not a case where the defendants merely insisted upon the 2001 Will being proved in solemn form of law and only intended to cross-examine the witnesses produced in support of the Will.[6]  They challenged its validity in their pleadings on almost every possible ground including forgery, lack of due execution, lack of testamentary capacity, lack of knowledge and approval and undue influence.  The forgery plea was not abandoned until the first day of the trial.  The plea of lack of testamentary capacity was not even supported by their own medical expert.  But Mr Lo still sought to call him, hoping to fish evidence to prove the unpleaded allegation that the Deceased might have a momentary lapse of mind when the 2001 Will was executed.  Mr Lo initially conceded that there was due execution but tried to revive it in his closing submissions.  In their attacks on the contents and veracity of the contemporaneous documents that supported due execution and knowledge and approval, the defendants went so far as implying an unfounded conspiracy theory against the makers.  The defendants’ conduct of litigation is most hostile indeed. 

15.Mr Lo referred to various reasons why the defendants conducted the litigation in such a hostile manner.  That may or may not justify their decision.  But that certainly does not justify the departure of the generally rule of costs following the event. 

D.  Wasted costs

16.In my view, subject to one exception, the general rule that costs are to follow the event should apply. 

17.The exception relates to the costs wasted as a result of the plaintiff’s language difficulties.  In my view, his difficulties ought to have been spotted well before he came into the box.  The preparation of his witness statements, the time spent on his oral testimony in court and for finding a suitable replacement interpreter were all wasted.  The defendants should not be liable for those wasted costs.  Taking the matter in the round, I think a 15% reduction of the overall costs is reasonable. 

18.Mr Lo argued that the costs relating to Chung Nin’s evidence on the matters referred to in paragraph 88 of the Judgment, which I rejected, should be borne by the estate. 

19.The general rule of costs following the event does not cease to apply simply because the successful party raised issues or made allegations on which he failed, but where that had caused a significant increase in length or costs of the proceedings, he might be deprived of the whole or part of his costs.  Here, Chung Nin’s evidence had not caused a significant increase in length or costs of the proceedings.  So I disagree with Mr Lo. 

20.Mr Lo then argued that since the court ruled that the second rule in Barry v. Butlin applied, all evidence must be scrutinized with vigilance and jealousy.  Thus the costs spent on such exercise should come out of the estate.  But as I have observed, the defendants chose to conduct the litigation in a most hostile manner, which covered the exercise concerned as well.  Mr Lo’s argument must be rejected. 

E.  Conclusion

21.For the above reasons, I order that the defendants do pay the plaintiff’s 85% of the costs of the action, including all costs reserved.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. 

Miss Elaine Liu, instructed by Messrs Or, Ng & Chan,  assigned by Director of Legal Aid, for the Plaintiff

Mr Tommy Lo, instructed by Messrs W.K. To & Co.,  for the 1^st, 2^nd and 3^rd Defendants

[1]   See the discussion in Part F.1. of the Judgment

[2]   See paragraph 106 of the Judgment.

[3]   See paragraph 107 of the Judgment.

[4]   See the discussion at paragraphs 65-70 of the Judgment.

[5]   At paragraphs 23-24, at pp.811F-812C.

[6]   See Order 62, rule 6(1)(c), Cap.4.