Case Document

100%Judiciary

HCA1915/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1915 OF 2009

_________________________

BETWEEN

	UPPLAN COMPANY LIMITED	Plaintiff
	And
	LI HO MING	1^st Defendant
	RAINBOW POINT LIMITED	2^nd Defendant
	(By Original Action)

BETWEEN

	LI HO MING	Plaintiff in Counterclaim
	And
	UPPLAN COMPANY LIMITED	1^st Defendant in Counterclaim
	LI HO PING	2^nd Defendant in Counterclaim
	WONG OI PING	3^rd Defendant in Counterclaim
	LI SIU LUNG	4^th Defendant in Counterclaim
	(By Counterclaim)

BETWEEN

	UPPLAN COMPANY LIMITED, LI PO PING, WONG OI CHING, LI SIU LUNG	Applicants
	And
	LI HO MING & RAINBOW POINT LIMITED	Respondents
	(By Mediation Notice)

_________________________

Coram :

Before Mr. Registrar K.W. Lung in Chambers (Open to the public)

Date of Hearing : 5^th August 2010

Date of Handing Down Reasons for Decision: 5^th August 2010

_________________________________

REASONS FOR DECISION

_________________________________

Introduction

1.This is a joint application from both parties to this court pursuant to paragraph 13(1) of Practice Direction – 31 for mediation (the Practice Direction), asking this court to decide the choice of mediator for the parties, which is the only issue for them to conduct mediation for the resolution of the disputes.

2.Following the directions of this court, the parties have prepared the points of difference between the parties and the qualifications and experience of the nominated mediators, all set out in tabular form, which is very useful for the present purpose.

3.The parties have also submitted their written submissions as well. This illustrates the costs involved for the present application.

The nature of the matter

4.The disputes among the parties involve two companies and two real properties, which involve approximately HK$21,000,000.00. As stated in the respondent’s written submissions, the emotional elements have certain role to play in the disputes. Both parties agree that it is desirable to resort to mediation to resolve their disputes as the parties are having an on-going relationship as a family.

The nominated mediators

5.As pointed out in the table prepared by the parties containing the grounds in support and in opposition of choice of mediator, the costs of all the 4 mediators nominated by the parties are more or less the same, viz: Mr. Yeung : $19,000, Miss Yuen: $17,500 (nominees of the applicant); Mr. Au-Yeung: $15,000 and Mr. Wong: $14,000 (nominees of the respondents) on a daily basis of 7 hours. The biggest difference of the costs is $5,000per day. The costs for this application, including the hearing before this court today, as according to the solicitors acting the parties, are totally $12,000.It can be seen that the reason for the parties to have the difference in their choice of the mediator is one of passion on the part of the parties rather than anything else.

6.The applicant has, by the letter dated 5 July 2010, proposed to have the matter disposed of on paper by the court picking a mediator for the parties, a simple exercise of its discretion. However, the respondents had not endorsed on the letter. For the reasons that follow, this court has decided to hear the arguments in court and delivers its decision accordingly. Hence, today’s hearing.

7.This court considers that if it just picks the mediator for the parties without hearing the arguments and giving its reasons for the choice, the parties may not be able to appreciate the reasons of the court making the choice, which is not conducive to the mediation.

8.The court also likes to let the parties and their solicitors understand the approach this court is going to adopt in deciding the choice of the mediator, so that in future, if they come across the similar situations, they may be able to resolve their disputes by adopting the similar approach without coming to court, thereby saving time and costs.

9.This court would also like to record this decision for the reference of other parties, who may have the similar issues for the court’s determination.

10.Because of those reasons, I have decided to call upon the parties for today’s hearing.

11.In future, this court will expect the parties making the similar applications to show that they have adopted the similar approach in solving their disputes before taking out the application, giving the reasons why the disputes remain unable to be solved. The court will, on application, consider making adverse costs order against any party who is unable to give the explanation or has behaved unreasonably.

12.This court will adopt the following approach in deciding the choice of the mediator in case of a dispute between the parties.

The approach

13.First, the court will consider all the relevant objective data, in the following priority:

(a)   the nature of the matter and the issues for mediation;

(b)   the amount involved and the importance of the matter to the parties;

(c)   the mediators’ knowledge and experience in respect of the issues in order to determine whether the mediators are the appropriate persons to deal with the issues concerned;

(d)   the experience of the mediators in mediation;

(e)   the other relevant experiences such as that of legal practice, arbitration or social experience;

(f)   the fees and expenses for the mediation;

(g)   the availability of the mediators, bearing in mind that mediation will be taking place near the trial;

(h)   other relevant factors.

14.Second, the court will, on the materials and information before it, make an assessment of the nominated mediators to determine, on the balance of probabilities, who will most likely be able to conduct the mediation smoothly, successfully and economically.

15.Third, the court will make its rational and dispassionate decision accordingly.

Application of the approach

16.I shall now apply the above approach to this application.

17.There is no dispute that all nominated mediators are capable of understanding and dealing with the issues for mediation.

18.In terms of experience in mediation, Mr. Yeung has 10 years’ experience, Miss Yuen 12 years’, Mr. Au-Yeung 2 years’ and Mr. Wong 3 years’.

19.As Mr. Poon and Mr. Leung, solicitors of the applicant and the respondents agree, the other experiences of the nominated mediators are less relevant as they agree that all of them are capable of grasping the issues in dispute.

20.The fees charged by the nominated mediators are: Mr. Yeung: $19,000. Miss Yuen: $17,500, Mr. Au-Yeung: $15,000 and Mr. Wong: $14,000per day.

21.There is no issue on the availability of the nominated mediators.

22.I have also considered the argument put forth by Mr. Poon that the mediators nominated by the respondents are tend to be more evaluative. However, Mr. Poon accepts that he has no evidence to support his comments. I do not accept such allegation without evidence to support. Mr. Poon further says that a female mediator will be more appropriate for this matter as there are female parties involved. Again, Mr. Poon accepts that he has no evidence or material to support his argument. I refuse to take this factor into consideration.

23.Having considered those factors above, nevertheless, I consider Miss Yuen to be the most appropriate mediator for this matter.

Other issues

24.This is the third application pursuant to paragraph 13(1) of the Practice Direction before me. In Resource Development Limited v. Swanbridge Limited HCA 1873/2009, the only issue between the parties was on the choice of mediator. In that case, I had decided that other things being equal, the mediator’s fee would be a significant factor for consideration. In this case, I consider other factors than the fees are more important for my consideration.

25.In the case of Hak Tung Alfred Tang v. Bloomberg L.P. (a firm) and Another HCA 198/2010, in which I had decided the minimum level of participation of mediation and I said that after this court had made the decision, the parties were still at liberty to determine whether they might have mediation to resolve their disputes. Whether or not such decision amounted to reasonable explanation for not engaging in mediation when the court determined any adverse costs order against a party under paragraph 5 of the Practice Direction was for the trial judge to consider. All these apply equally in this matter.

26.I reiterate that the solicitors acting for the parties should co-operate with one another and be flexible in their approach, bearing in mind the spirit of Order 1A of the RHC, saving time and costs for their respective clients and also saving time for the court as well.

The order

27.Accordingly, I now make an order that the choice of the mediator shall be Miss Yuen as nominated by the applicant.

28.As agreed by the parties, the costs of this application, including the costs of today’s hearing, be in the cause.