Heather Anne Voce v. The Henley Group Ltd

HCA 1370/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1370 OF 2006

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BETWEEN

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Before: Deputy High Court Judge H. Wong, SC

Date of Hearing: 25 November 2008

Date of Ruling: 25 November 2008

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R U L I N G

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1.This morning Mr Barlow SC, for the plaintiff, made an application to exclude paragraphs 30 and 36 of the witness statement of Mr Antony Michell and also the witness statement of Mr Nicholas Gall.  Upon clarification by the court, Mr Barlow clarified that his objection to the witness statement of Mr Nicholas Gall was confined only to paragraph 3 of that witness statement.

2.The paragraphs of the two witness statements relate to what allegedly happened at a meeting on 5 December 2005.  Briefly what is alleged in the relevant paragraphs of the two witness statements was that at the meeting said to be held on 5 December 2005 and attended by Mr Antony Michell, Mr Nicholas Gall and his late father, the late Mr Justice Thomas Gall, and briefly also by Mr Nicholas Gall’s mother, Barbara Gall, and discussions were held at the meeting which relate to the alleged introduction by the late Mr Justice Gall of his son-in-law, Mr Slattery, to the plaintiff in this case.

3.I think what I need to do is to simply quote two paragraphs from the witness statement of Mr Nicholas Gall and I do not think I need to go into great detail in that regard.  Paragraph 3.6 of the witness statement of Mr Nicholas Gall stated this :

“My father expressed surprise and then explained that he believed that it was him who had made the initial introduction of the ability of Mr Slattery to manage investments in a personal capacity to the Plaintiff.  He said that he had made the introduction in response to the Plaintiff expressing dissatisfaction with her own financial advisers, having suffered losses on various investments.”

4.In paragraph 3.7, Mr Nicholas Gall goes on to state this :

“My father was unequivocal that he had emphasised to the Plaintiff that Henley did not make direct investments on behalf of individuals or hold clients monies in its accounts and that anything Mr Slattery did for her would be in his personal capacity.  He said that, at the time of describing the management of finances by Mr Slattery, he made it clear that any investments through Mr Slattery would not be the same as investments through Henley as they did not invest in this way.”

5.As I said earlier, Mr Slattery was the son-in-law of the late Mr Justice Gall, having married to his daughter Elizabeth Gall.  The late Mr Justice Gall had unfortunately passed away on 20 January 2006 and what he allegedly said in the meeting was clearly hearsay.  Indeed it may be said that the same was double-hearsay because the statements made by the late Mr Justice Gall relate to what he had allegedly told the plaintiff in the circumstances that was set out in Mr Nicholas Gall’s witness statement.

6.Mr Barlow’s submission was that such evidence being evidence in the nature of double-hearsay should be excluded from being admissible as evidence in this trial on a number of grounds.  He submitted to me that the challenged evidence was irrelevant.  He submitted to me that in any event the challenged evidence was of little or negligible probative value.  He also submitted that the challenged evidence is likely to cause unnecessary embarrassment to the reputation of the late Mr Justice Gall who may or may not had partly persuaded the plaintiff to entrust her life-saving to the control of his son-in-law.

7.Now on the point of irrelevance, Mr Barlow’s submission is that even if the challenged evidence was admitted, it goes to the terms upon which the plaintiff may have been introduced to Mr Slattery by the late Mr Justice Gall in mid-2000.  And whatever were the terms upon which that introduction was made, it was clearly superseded, according to Mr Barlow, by Mr Slattery’s subsequent dealings with the plaintiff.  In this regard, he reminded me what he had pointed out in his opening that a lot of the documents in the bundle clearly bear the letterhead of the defendant, and that the correspondence also suggested that a lot of the meetings were held at the offices of the defendant.  I refer to the meetings between Mr Slattery and the plaintiff, which were held at the offices of the defendant.

8.I do not think I can accept Mr Barlow’s submission in this regard.  The terms upon which the plaintiff may have been introduced to Mr Slattery may impact upon the plaintiff’s understanding of Mr Slattery’s capacity in his dealings or subsequent dealings with the plaintiff.  If, as a result of what the late Mr Justice Gall had said to her, the plaintiff knew from the start that Mr Slattery was advising her and handling her investments in his own personal capacity, that may, of course, have a very significant bearing on the issues which this court has to decide in this case.

9.As regards the documents which Mr Barlow has drawn my attention to, clearly the documents cannot be looked at in vacuo.  The factual matrix and the background surrounding the documents are important.  They may cast light on not only the meaning of the documents but also the question as to how the documents were being understood by the parties and the capacity by which the maker of the documents created the same.  At this point I have not heard any evidence and I am not aware of the exact circumstances under which the documents, which Mr Barlow has referred to in his opening, were created or generated.  I can only look at the documents on their face.

10.As regards the point of negligible probative value, Mr Barlow has drawn my attention to the fact that at the time of the meeting, the health condition of the late Mr Justice Gall was clearly bad.  Mr Barlow asked rhetorically why the late Mr Justice Gall would have made these exculpatory statements in his deathbed, which statements would help the defendant to dissociate itself from Mr Slattery’s dealings with the plaintiff. 

11.Mr Barlow has also drawn my attention to the fact that some of the monies which were received by Mr Slattery from the plaintiff were actually deposited into Mr Slattery’s joint account with his wife, namely Elizabeth Gall.  The suggestion apparently made is that the late Mr Justice Gall might have some motive to protect his daughter while in his deathbed.  I do not think I need to go into the details of Mr Barlow’s submission in this regard, suffice for me to say firstly that I am not at all sure that at the time of the meeting the late Mr Justice Gall was actually in his deathbed, although it seems clear that his health was bad and probably deteriorating at the time.

12.Now it may well be that, after hearing evidence in this case, I might come to the view that Mr Barlow’s submission is correct in that little weight should be attached to the challenged evidence for the various reasons that he has given and the points that he has made in his submission.  Given the fact that the challenged evidence is in the nature of hearsay or double-hearsay, the fact that the late Mr Justice Gall’s health condition at the time was clearly bad, the fact that there might well be motive on the part of the late Mr Justice Gall to protect his daughter while he knew that he might be dying soon, it is quite possible that at the end of the day, I might take the view that the weight to be attached to the evidence, even if it is admissible, is negligible.  But at this stage I do not think that I am able to say that.  At this stage I have not heard any evidence at all and I am not prepared, at this stage, to say that the challenged evidence is wholly irrelevant or that its probative value is necessarily negligible.

13.There is a further point made by Mr Barlow and that is the point that if I allow the evidence to be admitted, very rigorous cross-examination may have to be conducted by him, and I have been told that actually another counsel may be engaged to cross-examine Mr Nicholas Gall, and that such cross-examination may cause embarrassment to the late Mr Justice Gall, and of course we all know that the late Mr Justice Gall will not be available to tell us what actually had happened and his side of the story.

14.Be that as it may, in my view, if the interest of justice requires such an exercise to be undertaken, so be it.  This court will not resile from the duty to deal with evidence which may potentially be embarrassing to some very respected members of our community if it is in the interest of the justice to do so.

15.For these reasons I will exercise my discretion under section 47(2) of the Evidence Ordinance to defer my decision on the admissibility of the challenged evidence until the conclusion of the trial.  So this is my ruling.

Mr Barrie Barlow, SC and Mr Chan Pat Lun, instructed by Messrs Horvath & Giles, for the Plaintiff

Mr Jose-Antonio Maurellet, instructed by Messrs Simmons & Simmons, for the Defendant