Elijah Saatori v. Raffles Medical Group

HCPI 1114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1114 OF 2006

____________

BETWEEN

__________

Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 16 July 2009

Date of Judgment (Handed Down): 7 August 2009

______________

J U D G M E N T

______________

Introduction, background and chronology

1.This is an application by the Defendant to strike out the action because of the Plaintiff’s failure to comply with an order made by the Court of Appeal on 14 October 2008 requiring the Plaintiff to file and serve an expert medical report by 10 November 2008 in support of his claim alleging medical negligence by the Defendant and its staff.  There is also an alternative application to have the action struck out as an abuse of process under Order 18 r 19 of the Rules of the High Court and finally, and in any event, a further application for the Plaintiff to be made the subject of a Restricted Application Order (“a RAO”) also known as a Grepe v Loam order.

2.In the summer of 2003 the Plaintiff, Mr Elijah Saatori, attended the Gold Coast Clinic which is a medical practice operated by the Defendant.  He wanted to have an accumulation of wax removed from his ears.  He paid $270 for this procedure which was performed for him by a nurse who, he says, used a metal syringe which she filled up with cold water.  The use of cold water caused him to become dizzy and also failed to dislodge the wax.  The nurse repeated the procedure, on this occasion, using warmer water.  Complaint is made that the water was injected with such force that this again made him dizzy.  The Plaintiff’s home-made Statement of Claim does not disclose whether the second attempt with warmer water was successful in removing the wax but what it does plead is that within three days of this procedure the Plaintiff began to suffer from tinnitus (a ringing in the ears) from which he continues to suffer to the present day.

3.On 9 May 2006 he issued his Statement of Claim for $27 million damages because of the negligently performed syringing of his ears by the nurse.  I have taken these facts from the Statement of Claim.  As yet the Defendant says that it is unable to file a detailed defence and so it is not possible to say whether and to what extent the Plaintiff’s version of events is accepted by the Defendant.  There is at present a holding defence denying negligence. It amounts to a general denial.

4.Once it was served with the writ the Defendant took out a summons to obtain directions upon which an order was made by Master Lung on 31 July 2006 requiring the Plaintiff to comply with Practice Direction 18.1 para. 5.2 (v) by filing and serving a medical report in support of his claim and a Statement of Damages.  On 14 December 2006, again on the Defendant’s application, Suffiad J ordered the action to be transferred to the Personal Injury List.  The judge on that occasion dismissed the Plaintiff’s application to have the action tried by a judge sitting with a jury and he also extended time to 28 December 2006 for the Plaintiff to file a Statement of Damages.  The Plaintiff filed his Statement of Damages on 29 December 2006. 

5.On 1 February 2007 there was a Check List Review (“CLR”) hearing before Master Kwan when the Plaintiff was told that he would need to provide a medical report in support of his case.  He was given assistance by the Master as to what was required.  The CLR hearing was adjourned by her for four months to allow the Plaintiff time to comply with that requirement.  This hearing was restored on 28 June 2007 when the Master ordered the Plaintiff to file his medical evidence within seven days and to attend an examination by the Defendant’s medical expert.

6.There is a medical report from an American specialist physician Dr Robert Carpenter which, although not dated, was served and filed by the Plaintiff some time in June 2007 [Exhibits Bundle/3-4].  The content of this report together with an addendum to it which Dr Carpenter prepared on 29 October 2008 [Exhibits Bundle/17-18] will need to be considered in some detail.  Suffice it to say for present purposes that the Plaintiff says that he was unable to afford the services of a Hong Kong-based medical expert and researched for a suitable medical expert on the internet and was recommended Dr Carpenter who was willing to provide him with a report.  Dr Carpenter has not examined the Plaintiff and he prepared his first report based on a factual account given to him by the Plaintiff of the procedure carried out by the nurse at the Gold Coast Clinic and the symptoms that the Plaintiff has suffered since then.  The Plaintiff says that taken in combination these two reports from Dr Carpenter are fully compliant with the Practice Direction and the order of the Court of Appeal.  The Defendant, represented by Mr Bharwaney SC, disagrees.  It is for this reason therefore that these two reports will need to be carefully examined to determine whether they pass muster for the purposes of an action such as this.

7.Returning to the chronology, the Plaintiff submitted himself to an examination by Dr Wong, the Defendant’s specialist, on 18 July 2007 who prepared a report dated 14 August 2007.  The Plaintiff then reported Dr Wong, whose report was adverse to the Plaintiff’s case, and Messrs Robertsons the Defendant’s solicitors to the ICAC for corruption on the basis that because Dr Wong had been paid a fee to examine the Plaintiff and write a report which concluded that the Plaintiff’s tinnitus was due to the aging process, Dr Wong had written what he had because he had been instructed and paid to do so by Robertsons.

8.On 7 August 2007 the Defendant took out a summons to strike out the action on the basis of the Plaintiff’s failure to produce proper medical evidence to support his claim.  This was adjourned on its first hearing by Saunders J, who heard it, to allow the Plaintiff time to file and serve a medical report from Tuen Mun Hospital.  The Plaintiff was examined at that hospital and in a report dated 18 February 2008 the examining doctor stated that the Plaintiff had complained of tinnitus for the previous four years and provided him with medication for it and gave him a follow-up appointment four months later.

9.On 11 April 2008 Saunders J heard the Defendant’s application to strike out the action.  In his judgment, acceding to the application [Court Documents Bundle/13-15], he observed that;

“… it is a fundamental principle of a medical negligence action that (there) must be a proper medical report from an expert establishing liability or at least arguable negligence on the part of the Defendant medical person and linking that negligence, by causation, to the condition suffered by the Plaintiff.”

The judge sympathised with the Plaintiff because of the unpleasant symptoms that he had suffered from but concluded that;

“… in the absence of any evidence that the tinnitus has been caused by the syringing, that evidence coming from an appropriately qualified medical expert, the claim against (the Defendant) must be struck out.”

10.The Plaintiff appealed to the Court of Appeal. The appeal was heard on 23 September 2008 and judgment was handed down on 14  October 2008.  Lam J (who gave the judgment to the court) decided that the Plaintiff should be given a final opportunity to get his tackle in order.  He concluded his judgment in this way [Court Documents Bundle/25-26]:

“19.  Should the Plaintiff be given one more chance to put his house in order?  Mr Carolan drew our attention to the history of this action and the various opportunities given to the Plaintiff to comply with the Practice Direction in the past.  By now more than 5 years had lapsed since the occurrence of the incident the Plaintiff complained of.  It is unsatisfactory that the Plaintiff has yet to properly and precisely formulate the grounds of his claim.  However, it is fair to observe that at the court below the focus seemed to be place on the question of causation instead of the expert evidence on negligence.

20.    In the interests of justice, we would grant one further indulgence to the Plaintiff to put forward his case in compliance with the rules and the practice direction.  We will give the Plaintiff one month to file and serve all expert report supporting his allegations of negligence against the Defendant. If such a report is not filed and served by 10 November 2008, the appeal shall be dismissed.  If the report is filed and served before that deadline, the appeal shall be allowed in that the striking out order would be set aside and the action shall continue with a direction that the Plaintiff shall take out a summons within 7 days after the filing of the report for leave to amend his Statement of Claim in the manner as indicated by him in the course of the appeal.  The summons shall be returnable before the PI Master who may give further directions regarding the future conduct of the case.

21.    As regards costs, for the reasons given above, based on the existing Statement of Claim and expert report relied upon by the Plaintiff, his claim is liable to be struck out.  Therefore, the Defendant has been acting properly in issuing the application and Saunders J was correct in striking out the action.  We decided to give the Plaintiff a further indulgence. But that indulgence should not be at the expense of the Defendant in terms of costs. We would not disturb the order of Saunders J on costs below.  Further, we would make a costs order nisi that the Plaintiff shall bear the Defendant's costs of the appeal in any event.”

11.Given this further opportunity the Plaintiff went back to Dr Carpenter for a further report [Exhibits Bundle/17-18] which was filed three days late on 13 November 2008.  On this occasion Dr Carpenter had more material to work from.  Whereas, for his previous report he only appears to have had a factual account given to him by the Plaintiff, on this occasion he noted that he had the following:

He concluded his report, which will require some detailed analysis in a moment, by saying that the Plaintiff’s ear had been flushed with excessive force causing injury and tinnitus from which he had not recovered.

12.A point is taken by Mr Bharwaney on late service of this report but if I hold that it is a report which complies with the requirements of the Practice Direction, I would be minded to extend time for the admission of the report into evidence given that it is only three days out of time.  If it does not comply, then there would be no reason to extend time to allow it to be received into evidence and in such circumstances the consequences referred to paragraph 20 of Lam J’s judgment supra would take effect and the striking out order made by Saunders J dated 11 April 2008 would put an end to the action.

13.On 2February 2009 this summons was taken out by the Defendant to strike out the action for non-compliance with the Court of Appeal’s Order of 14 October 2008.

14.Having served and filed Dr Carpenter’s second report, the Plaintiff took out a summons to be heard on 11 May 2009 for a restored CLR hearing with a view to the action proceeding to trial.  Given that the striking out summons remained to be heard on 16 July, Master Kwan vacated the CLR hearing on 11 July to be heard, as appropriate, on 16 July  by the judge hearing the Defendant’s striking out summons.  This order was confirmed by Fung J, the judge in charge of the Personal Injury List, on 19 May 2009 with the result that all these matters came before me on 16 July.

15.That therefore traces the route by which the matter has come to be heard before me.  So far I have purposely refrained from referring to the correspondence and the accompanying pleadings and affirmations which has brought the action thus far.  I will need to do so presently, particularly when I come to consider the striking out application based on abuse of process under the RHC and for a RAO under the court’s inherent jurisdiction.

16.This limb of the striking out application based on non-compliance with the Court of Appeal’s order of 14 October 2008 will be a bland technical exercise compared to the other two aspects which require me to consider, and I do not do this justice by describing it in this way, the highly colourful and inflammatory correspondence and affirmations that the Plaintiff has directed at the Defendant and its solicitors and, by filing these documents in court, at the court.  At present it is possible to separate what is essentially an issue of construction to determine whether, taken in conjunction, Dr Carpenter’s two reports amount to the sort of evidence that can properly be said to support an action for medical negligence in this case; from the other material which is said to justify a striking out order under Order 18 r 19 RHC, and for a RAO in support of which it is said that the Plaintiff is someone who is completely out of control, a vexatious litigant of the worst possible kind over whom judicial restraint should now be imposed before he is allowed to cause further damage and harm to his current opponents based on his record in this action so far and his long and unsuccessful record of litigation in a series of other unmeritorious actions.

Do Dr Carpenter’s reports comply with the Court of Appeal’s Order?

17.The test to be applied in determining whether medical negligence is established is that proposed by McNair J in Bolam v Friern HMC [1957] 1 WLR 582 at 586;

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not profess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of a competent man exercising that particular art.”

For these purposes some brief further elaboration may be helpful.  As the Bolam case has made clear “… in determining whether a defendant has fallen below the required standard of care, great regard must be shown to responsible medical opinion, and to the fact that reasonable doctors may differ.”  As McNair J put it, a practitioner who acts in conformity with an accepted and current practice is not negligent “merely because there is a body of opinion which would take a contrary view.”  See Clerk and Lindsell on Torts 19^th Edition 10-62 [603].  At 10-63 the learned editors say this:

“The practical result of this proposition is that proving fault in a doctor on the basis of his choice of a particular technique or method can be very difficult: the [Plaintiff] effectively has to show that no body of respectable medical opinion would have supported what the doctor did.  Nevertheless, the limitations on Bolam must be borne in mind.  It applies only to professional decisions whether or not to use a certain form of treatment and not to simple cases of carelessness or inadvertence …”

18.These passages merely outline the general substantive tests that would be applied by a trial judge to determine whether negligence has been established.  The requirements of the Practice Direction in this type of action are designed to require a would-be plaintiff to focus his mind, or at least to have it focused for him by those advising him, on the merits of his case on negligence against the medical practitioner that has treated him.  The medical report accompanying the Statement of Claim should identify with a high degree of precision the elements of the alleged negligent treatment performed by the Defendant, which in turn will be reflected in the Statement of Claim.  To attack a professional man in his practice is a very serious matter indeed and not to be embarked upon lightly.  It is for these reasons that the Practice Direction requires a potential plaintiff to have investigated his own case and treatment carefully before he launches an action of this type.  Although at this stage the court will not be concerned with an analysis of the intrinsic merits of the claim as supported by the expert medical opinion filed with the Statement of Claim, nevertheless, if a report is called into question as Dr Carpenters’ have been on this occasion then the court will look at what has been said in the report (or reports in this case) and the basis upon which their contents are put forward, to see whether they should be allowed to stand so as to require the Defendant to have to answer the action.  The burden on the Plaintiff requires him to file a report which would support a case on medical negligence as reflected in Bolam and that the alleged negligence was causative of the condition that he now complains of.

19.Saunders J and the Court of Appeal clearly considered that Dr Carpenter’s first report did not possess those characteristics hence the Court of Appeal’s decision to give the Plaintiff a final chance to get another report which achieved what the Practice Direction requires.

20.It seems to me that I need to look at both of Dr Carpenter’s reports in order to determine whether, in combination, they can be said to support a reasonably arguable case of medical negligence in the circumstances of the Plaintiff’s treatment at the Defendant’s clinic.

21.As everybody knows, in the practice of personal injury cases (which includes medical negligence cases such as this one) in Hong Kong and I would have thought in all common law jurisdictions, a party bringing an action will have been personally examined by the medical expert whose opinion he proposes relying on.  This is no criticism of Dr Carpenter, but he has been asked to prepare a report without an examination of the Plaintiff.  I daresay that it would be very rare indeed for a medical expert to agree to provide an opinion that was to go forward as the basis of a medical negligence action without having personally examined the patient.  Dr Carpenter has agreed to this course, no doubt in order to be helpful to the Plaintiff who says he cannot afford a Hong Kong-based expert, and I am told that should the action get to trial Dr Carpenter is willing to come to Hong Kong from the United States in order to give evidence.

22.Mr Saatori submits that Dr Carpenter has in his second report identified negligence by saying that:

“… the excessive force of the syringing procedure produced acute noise trauma and caused injury to the inner ear resulting in tinnitus and slightly greater hearing loss in the right ear. I reference articles from the UK which direct the technique and type of equipment to be used for ear irrigation and state that they feel a metal syringe should not be used for irrigation, except in the hands of a specialist because of the chance of injury to the eardrum or tinnitus from excessive force and warm water should be used to prevent dizziness.” [Exhibit Bundle 17-18]

23.Having received this report Mr Saatori has amended his Statement of Claim [Exhibit Bundle 36].  The principal amendment is to paragraph 3:

“She then repeated the procedure, more than once, with warmer water, at my request, as the first flushes failed to dislodge the wax.  Again the force was very intense and made me dizzy again, and contravenes well established written protocols stipulating the gentle use of an electric irrigator, flushing at an angle such as not to force the water directly at the ear drum, instead of using a metal syringe, plugged directly into the ear, forcefully, that is known to cause Tinnitus with intense and negligent repeated plunges of water with violence, as the evidence will prove in this case.  Further negligence is established by written protocols that mandate that the procedure not be delegated to a nurse who may have had no experience in such a procedure, as is obviously the situation in this Case.”

Mr Saatori says that the amended-pleading is there to adopt Dr Carpenter’s opinion that excessive force was used when flushing out the ear which caused injury to his inner ear and resulted in him getting tinnitus.

24.Mr Bharwaney submits that taken in combination these two reports cannot support a case of medical negligence.  He draws attention to Dr Carpenter’s first report which both Saunders J and the Court of Appeal had rejected as being capable of supporting a claim in negligence.  It is worth reciting here the significant parts of the first report [Exhibit Bundle 3-4]:

“Opinion:

   There are no specific guidelines as to how the ears should be flushed and there is no standard of care concerning the performance of the procedure.  Generally, the ears are flushed with warm water as cold water will cause dizziness.  The amount of force used is not measured and is usually limited by the design of the syringe.  The angle can be either straight or at an angle, but again there are no guidelines or correct method.

   The procedure of performing an ENG to evaluate dizziness requires squirting cold water in the ear, and this is a recognized technique that has been performed for many years with the desired side effect of causing dizziness.  Therefore, flushing the ears with cold water is within the standard of care and generally is not associated with tinnitus.

   Tinnitus has many causes.  A common cause is noise exposure, either acute or chronic.

Another is viral, another is aging.

   In this case, from the temporal relationship, it is my opinion that the tinnitus was, more likely than not, caused by noise trauma from the water hitting the eardrum.

   It is, however, difficult to prove that the tinnitus is actually present.  There is no method for determining whether a person has tinnitus and no method to quantify tinnitus.  There is also no reliable treatment.

   If an audiogram were done and a unilateral hearing loss was noted, then there would perhaps be concrete evidence of damage to the right ear, since this is the ear with the greater tinnitus.  Other than an audiogram, there is no reliable method to determine the extent of injury.

Conclusion:

   In my opinion, the noise trauma from the ear flushing, more likely than not, caused the onset of tinnitus.  Proving whether the tinnitus is, in fact, present, however, is not possible.

   I believe an audiogram would be helpful as the next step in evaluation, and if an asymmetric hearing loss is noted with the poorer hearing in the right ear this would be helpful in terms of proving that damage did occur.

   I reserve the right to modify my opinion if further relevant information becomes available.”

Dr Carpenter has identified noise trauma caused by the flushing as the cause of the tinnitus.  He accepts that proving the presence of tinnitus is not possible but says that an audiogram would be a helpful next step and if there is present an asymmetric hearing loss with poorer hearing in the right ear this “would be helpful in terms of proving that damage did occur.”

25.For the second report Dr Carpenter had the results of the audiogram.  The audiogram showed mild high tone loss at 4,000 and 8,000 hz in both ears.  The result is that hearing loss on both sides is approximately the same, although Dr Carpenter suggests in his second report that “pure tone audiogram clearly reveals [poorer hearing in the right ear] as there is a step drop at the 3,000 hz frequency compared to the left ear [page 36 Hearing Bundle for the 19 May 2009].  This feature leads Dr Carpenter to say that damage has been caused to the right ear as a result of the excessive force used in the syringing procedure.  Really it is only this which enables him to say that damage has been caused to the right ear and that this damage, based on what Mr Saatori had told him about what he had experienced during the syringing procedure, had been the result of excessive force being applied to expel the water from the syringe and into the ear.  His conclusion is this:

“In my opinion, the excessive force of the syringing procedure produced acute noise trauma and caused injury to the inner ear resulting in tinnitus and slightly greater hearing loss in the right ear.

I reference articles from the UK which direct the technique and type of equipment to be used fur ear irrigation and state that they feel a metal syringe should not be used for irrigation, except in the hands of a specialist, because of the chance of injury to the eardrum or tinnitus from excessive force and warm water should be used to prevent dizziness.

In my opinion, assuming Hong Kong is under the same standard of care as the UK, negligence occurred at the Raffles clinic in July 2003 when Mr. Saatori’s ear was flushed with excessive force, causing injury and tinnitus from which he has not recovered.

Had Mr. Saatori been treated by the techniques described, with warm water and different apparatus, he, more likely than not, would not have experienced tinnitus.

26.At this stage I am only concerned to ensure that these two reports taken together comply with the Practice Direction as being expert evidence capable of supporting a claim in medical negligence.  What I am not permitted to do is to conduct some sort of “mini-trial” on paper unless Mr Bharwaney can show that on this evidence there is simply no prospect of successfully prosecuting this action.  I have Dr Buddy Wong’s much more comprehensive report which discounts negligence and concludes that this condition (if it exists), is due to aging.  Mr Saatori is now in his fifties.  Dr Wong, who has of course examined Mr Saatori, has been able to provide a closely reasoned report which the Defendant will rely on if there is to be a trial.  But for all the prima facie complimentary things that one might feel able to say about Dr Wong’s report, now is not the time to embark on any comparative exercise on what is a very limited remit of enquiring to see whether Dr Carpenter’s two reports are fit to go forward for the purposes of the Practice Direction so as to put the Defendant at risk of judgment being entered against it for professional negligence.

27.I have decided that on a true analysis Dr Carpenter’s reports cannot get the Plaintiff to the starting gate.  Dr Carpenter has based himself on a very general proposition that there is greater hearing loss in the right ear detected at 3,000 hz, although overall the difference between the two ears is minimal on a true reading of the audiogram, and that this therefore proves damage to the right ear caused by the noise trauma which was the result of excessive force being applied to expel the water, cold at first, and then warmer on the second application.  It strikes me that these bare assertions based on very limited material does not amount to the sort of cogently reasoned report which the Practice Direction requires in order to start a medical negligence action.  The result therefore is that Mr Saatori has failed to comply with the Court of Appeal’s order that he obtain a medical report which will properly support an action of this sort.  Accordingly, Saunders J’s order must now take effect and the action will be struck out.  It is sufficient therefore to say that I refuse to extend time to the Plaintiff to comply with the Court of Appeal’s order that he file his report by 10 November 2008 because this report would not have complied with the requirements of the Court of Appeal’s order and of paragraph 5.2(v) of Practice Direction 18.1 upon which its order was based.

28.The Defendant also has a summons to strike out the action on the grounds set out in RHC Order 18 r 19.  Mr Bharwaney says that in reality all three applications are inter-related.  It seems to me that the striking out of the action because of the failure to produce a medical report which establishes a cogent case of negligence both as to liability and causation as required by Practice Direction 18.1 amounts to the same thing as saying that this case, taken at its highest, discloses no reasonable cause of action and is therefore one that is bound to fail.  To this extent therefore the application under Order 18 r 19 adds nothing to the application based on non-compliance with paragraph 5.2(v) of the Practice Direction.  In substance both grounds amount to the same thing.  I am content to leave matters on the basis of Saunders J’s judgment which must now take effect due to the failure by the Plaintiff to comply with the Court of Appeal’s order that on or before 10 November 2008 he serve and file a medical report that can be said to comply with the Practice Direction.  For the reasons which I have given he has failed to do so, and so no purpose would have been served in extending time to allow him to put in Dr Carpenter’s second report which would not have complied with what the Court of Appeal and the Practice Direction require.

29.This therefore puts an end to the action and the Defendant having succeeded in striking it out must now have its costs of the action to be taxed on a party and party basis.  The order for costs will be an order nisi.  Should either party wish for a different order for costs they may apply in writing [which is a common way of dealing with costs orders when judgment has been handed down] within 14 days of receipt of the judgment.

30.From this I must now turn to the Defendant’s application to have Mr Saatori made the subject of a RAO. 

RAO[The basis of such an Order]

31.This order, if I were to make it, would cover this action.  He would therefore need to first obtain leave from a designated Judge before making any further application and would have to demonstrate that such an application was “arguably meritorious”.  The making of such order was considered by the Court of Final Appeal in the case of Ng Yat Chi v Max Share Ltd & Another FACV 5/2004.  The reason why such orders should go to control the activities of a vexatious litigant was explained by the Chief Justice in this way:

“2.    It is not difficult to recognise the activities of the vexatious litigant.  The person concerned will almost invariably be unrepresented and will pursue abusive proceedings which usually exhibit some of the following features.  Hopeless claims are instituted.  Totally misconceived appeals are launched.  Judgments of the court, both interlocutory and at trial and both first instance and appellate, may not be accepted.  There are likely to be attempts, often repeated, to re-litigate the same matters as have already been determined.  The materials filed will often be irrelevant, incoherent or scandalous.  When present at a hearing, some vexatious litigants are unable to conduct themselves with decorum and may hurl abuse at the opposite parties and/or the judge.

3.      Abusive proceedings are oppressive to the other parties and result in unfairness to them.  To protect themselves against such proceedings, time, effort and stress are involved and costs have to be incurred.  They may be in a weak position to cope.  Often, there may be little prospect of recovering the costs incurred.

4.      Quite apart from causing unfairness to the other parties, abusive proceedings lead to unfairness to other litigants before the courts.  Judicial resources are inevitably finite.  The time which judges and their supporting staff have is of course limited.  Where much needed resources are diverted to dealing with abusive proceedings, litigants with cases of real merit suffer as a result.  It will take a longer time for their cases to be dealt with.  Courts should concentrate their resources in dealing with meritorious cases.  Their attention should not be unnecessarily diverted to dealing with abusive proceedings.”

Whilst the constitutional right of access to the courts is well recognised and protected both under the common law and under the Basic Law the Chief Justice continued by observing that:

“But it would be absurd to suggest that the right of access involves a right to abuse the court’s process.  The pursuit of abusive proceedings would be an improper exercise of the right of access and may be regarded as adversely affecting the right of access of others with meritorious cases.”

32.Although mindful of the fact that it is a strong thing to require a party to show that his case has sufficient merit before it is allowed to continue the Chief Justice also advocated the need for decisive action to be taken in the appropriate case.  He said this:

“The right of access to the courts must of course be strongly safeguarded.  But where the circumstances are appropriate, the courts should not be reticent in making Grepe v. Loam orders and extended orders and should act firmly.  It must be emphasized that it is essential for courts to exercise their jurisdiction to prevent abuse of process properly and effectively.”

33.Mr Saatori has very deep religious convictions.  He is a committed Christian on the evangelical wing of Christianity.  His knowledge of the scriptures is encyclopaedic.  He is able to quote from both volumes of the Bible at will and does so in pleadings, in correspondence and when addressing the court.  He tells me that he can, and on occasion does, speak in tongues.  When things go wrong, in terms of the litigation in hand not going as he would wish, he calls upon Almighty God’s wrathful vengeance to come down on his opponents.  He has in the past done so, he says with success, in the case of a bank, a firm of solicitors and against individuals.

34.The papers in this case graphically demonstrate what I have just indicated.  I am afraid that this behaviour is so extensive that to quote isolated examples, merely in the interest of brevity, could not possibly do justice to the description that I have just given.  If this judgment has to be considered in another court, and I can I think safely predict that it will be, then the material, extensive as it is, will need to be gone through.  I fear that such a reading will confirm that Mr Saatori, genuine as he feels his is in all his dealings with the world as we know it and with the individuals, organisations and institutions that make up our community, is somebody, so far as litigation is concerned, who lacks any sense of rational judgment or behaviour.

35.That this is so is, in my view, overwhelmingly demonstrated in his conduct of this case when one examines the content of his correspondence with Messrs Robertsons the Defendant’s solicitors, its senior partner Mr Lintern-Smith and his associates.  This is then allowed to spill over into the content of his pleadings and affirmations.  His lack of judgment is exemplified by the amount of the claim in this action in the sum of $27 million.  His complete absence of good sense is demonstrated by the report that he made to the ICAC for corruption against Dr Buddy Wong, the Defendant’s medical expert, and Robertsons because he says Dr Wong has been paid to say what appears in his medical report which happens to be adverse to his case.  He has allowed himself to get very agitated by Robertsons bill of costs in resisting his application for leave to appeal to the Court of Final Appeal.  The Court of Appeal had expressed its dissatisfaction over the size of the bill when it was put forward as a basis for a gross assessment, but Mr Saatori has now elevated what may well be a heavily taxed-down bill into what he regards as criminal conduct on the part of Robertsons which he intends to take further.

36.Added to this he has now started another action, HCA 1626 of 2009, against Robertsons, Mr Lintern-Smith and two of his associates directly arising out of their representation of the Defendant in the present action which he says is criminal in character.

37.So much for this action, well and graphically evidenced in the papers.  In the event that I am held to have been in error to have put an end to the action on the basis that I have considered in the first part of this judgment, the conduct of this action by Mr Saatori would have afforded me an alternative ground for staying it on the basis of his abusive and offensive conduct.  No litigant or his representatives should have to put up with such abuse in terms of insulting behaviour which apart from the insult that is given does absolutely nothing to advance the case to trial.  This action was started three years ago and no meaningful progress has been made.

38.Mr Bharwaney has also drawn to my attention Mr Saatori’s long history of unmeritorious litigation against a variety of other opponents.  He has been able to discover seven previous actions going back to 1989 which Mr Bharwaney has briefly summarised.  Together with this action and the recently started HCA 1629 of 2009 there are nine in total.  Although Mr Saatori has addressed me on a number of them to try and show that they had merit he appears to have failed in all of them.  In this action which I have already struck out for the reasons which I have previously given, this now successful Defendant has accumulated a bill of costs of $800,000 in defending itself and with no real prospect of getting any of this money back.  Mr Saatori simply has no means to meet that sort of liability. 

39.For the sake of completeness I attach Mr Bharwaney’s summary of the seven cases which Mr Saatori has brought and failed in together with a brief description of those proceedings.

Conclusion

40.I regret to have to say this, but Mr Saatori is a menace to the administration of justice.  Unless he is now put in check by the making of a RAO the defendant will continue to be assailed by thoroughly unmeritorious applications with no prospect of being reimbursed for the costs that it will inevitably have to spend in defending itself.  The RAO jurisdiction which the Chief Justice has described in Ng Yat Chi supra has been designed precisely for litigants such as Mr Saatori.  In my view there is no clearer case than this one in which a RAO should be made.  Accordingly, there will be an order in terms of the Defendant’s summons (as amended) for such an order, the wording of the summons being in line with the suggested relief set out by the Court of Final Appeal in Ng Yat Chi.

41.Finally, the costs of this summons will also be to the Defendant to be taxed on a party and party basis.  This costs order will also be an order nisi and I will take written submissions if either party seeks a different costs order.  These submissions should also be served within 14 days of the judgment.

Plaintiff in person
Mohan Bharwaney SC instructed by Messrs Robertsons for the Defendant

REVIEW OF SAATORI’S PREVIOUS ACTIONS

1  HCA No.4675 of 1989

▫  P. claims he invented a board game in 1982 which he called “Galaxion”. In 1989, P. (and his company, Cerebe Design Limited) brought proceedings against ‘Pioneer Advertising Limited’ for breach of contract, conversion, deceit, copyright and trademark infringement.  His claim was for £9,000,000.00.

▫  In 1992, at trial, which lasted for some 57 working days, the judge, Deputy Judge Frank Stock QC, dismissed P. claim in respect of all of his causes of action. P. appealed.

2  CACV No.41 of 1992

▫  The matter came before the Court of Appeal on 25.11.1994. The Court of Appeal dismissed P.’s application and ordered him to pay costs. 

3  HCA No.3908 of 1995

▫  In 1995, P. brought another claim against the same defendant.  The Court took the view that this action was substantially the same as the action brought in 1989 and therefore struck out P.’s statement of claim on the ground that it was frivolous, vexatious or otherwise an abuse of the process of the court.

▫  P. appealed.  In March 1997, the Court refused to allow P.’s claim to proceed on the basis that the issues which he sought to advance had already been rejected in the 1989 action.

4 & 5 DCCJ No.16284 of 2000[1]

▫  In 1999, P. (through his company) brought a claim against ‘Kincheng Banking Corporation’ because it refused to offer banking facilities to P.’s company.

▫  D. sought security for costs, which P. declined to give.  He claimed that he was the owner of assets which he valued at over US$15,000,000, largely in rights in games which he hoped to sell in the lucrative United States market and also worldwide, although he admitted that the launch of his products had to be held back because of issues relating to the packaging.

▫  In ordering P. to provide security for costs, the following conversation between P. and the Judge was transcribed as follows:-

6.       HCSA No.43 of 2007

▫      The Plaintiff, representing the claimants in this case, appealed against a   decision made in the Small Claims Tribunal.

▫      At the appeal, he claimed, inter alia, that the adjudicator was an evolutionist; was oppressive in his attitudes towards the Claimants; the Defendants did not act in good faith and the Claimants evidence was suppressed. The judge found there to be no substance in the Plaintiff’s criticism of the adjudicator’s attitude and bias. The appeal was dismissed.  

7.       HCMP No.2044 of 2008

▫     Mr. Saatori was a director of the Plaintiff, Zebra Industries (Orogenesis Nova) Limited, and unsuccessful applications were made for leave to appoint Mr. Saatori to represent the Plaintiff for the purpose of an appeal following Burrell J’s decision to stay the action for arbitration. Failing this Mr Saatori instructed counsel to apply for leave out of time before Rogers VP and later before Tang VP and Sakhrani J. Both applications failed.

It is abundantly clear that P. understands very well the need to comply with Court rules and procedures. He should not be allowed to abuse the Court’s process just because he is in person. Indeed, as shown in the last case, he is able to instruct solicitors and counsel and has done so.

List of Previous Actions of Plaintiff (Mr. Elijah Saatori)

1.     Elijah Saatori and Another v. Cheng Chun Mo and Another HCA 4675 of 1989

2.     Elijah Saatori and Another v. Cheng Chun Mo and Another (1994) HCA 390; CACV 000041/1992, 25^th November 1994

3.     Elijah Saatori And Another v. Cheng Chun Mo and Another (1997) HCFI 431; HCA 003908/1995, 27^th March 1997

4.     Cerege Design International Ltd. v. Kincheng Banking Corporation (2001) HDC 104; DCCJ 016284/2000, 12^th March 2001

5.     Cerebe Design International Ltd. v. Kincheng Banking Corporation (2003) HDC 102; DCCJ 016284A/2000, 23^rd January 2003

6.     Elijah Saatori v. Barry Joseph Yen and Another (2008) HCFI 345; HCSA 000043/2007, 22^nd April 2008

7.     Zebra Industries (Orogenesis Nova) Ltd v. Wah Tong Paper Products Group Ltd (2009) HCFI 33; HCMP 002044/2008, 15^th January 2009

^[1]       Cerege Design International Ltd. v. Kincheng Banking Corporation, DCCJ.16284/2000,

per Judgment of HH Judge Carlson, dd. 12.3.2001, and Deputy Judge Pang, dd.8.1.2003