EFFISCIENT LTD v. EDWARD EUGENE LEHMAN

HCMP 2524/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2524 OF 2011

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REASONS FOR JUDGMENT

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1.  On 12 July 2012 I gave my judgment in contempt proceedings brought by the Applicant against Mr Edward Lehman. As I explained in my judgment I would handed down my reasons for acceding to Mr Lehman’s application that there was no case to answer in respect of one of the 2 grounds of complaint made against him subsequently. These are those reasons.

2.  The elements of contempt of court are examined and elucidated in the Court of Final Appeal’s decision in Kao Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830.  As Brennan NPJ explains a necessary element is that the order that it is alleged has been breached is clear, certain and in unambiguous language: see para 23.  It is alleged that Mr Lehman breached directions given by me to him orally.  Those directions were given immediately prior to adjournments of the trial.  The first was prior to the lunch adjournment on 3 October 2011.  I said this:

“Court: So we will adjourn, Mr Lehman until 2.30. Now, we have a convention, I don’t know if it’s one that – Mr Lehman, we have a convention that you may or may not have in the States, that when somebody is giving evidence, they don’t discuss their evidence with anybody during lunch breaks or overnight. And that means that from a practical point of view, it’s better if you go and have lunch by yourself, because if you go off and have lunch with other people, the perception may be that you ended up discussing your evidence because nobody can resist talking about such things…

A. Sure. No.

Court: …that’s just human nature. So as I say, we’re adjourned until 2.30 so I suggest that you slip off by yourself.

A. Well, yes, I mean, I have my wife and my daughter with me so I can have it with them, I assume.

Court: Well, you can…

A. Is that okay?

Court: …if you can try and avoid the temptation to discuss the evidence.

A. Yes.

Court: Yes, that’s the important thing.

A. Well, I mean, I don’t have all these books anywhere near me but…

Court: No, no, but yes, it’s just that the idea is you…

A. Got you. No, no.

Court: …can go away and you can discuss anything you like except this case, basically, that’s what it boils down to.

A. Okay. No, no, and thank you. We don’t…

Court: And Mr Allman-Brown can discuss this with you, he can discuss the finer points. You can make sure that…

Mr Allman-Brown: It’s been mentioned already.

Court: Yes, yes. All right?

Mr Manzoni:  My Lord, I wonder if I can just hand up a copy of the Court of Appeal’s judgment in the section 152FA matter?”

3.  Due to a complaint that Mr Lehman appeared to have approached his counsel to discuss the case on leaving the court at 4.30 pm on 3 October, I said this the next morning: “Don’t discuss your evidence with anybody,” that is exactly what I meant, and that includes Mr Allman‑Brown and everybody else”.

4.  At 4.30 pm I reminded Mr Lehman of my warning: “You’ll recall the point that was made this morning about not discussing your evidence”, to which Mr Lehman answered “I do”.

5.  It is these directions that the emails to which I refer in my earlier judgment are said to breach.  It will be immediately apparent that the directions were oral.  They were in conventional terms and whilst it must have been clear compliance was not optional they were phrased in everyday language. They were not framed in the precise language in which a formal written order would probably have been phrased.  By this I have in mind something along the following lines:  “You are not to communicate whether in writing or orally or by any other means with any person about your evidence or any matter relating to it or its subject matter until your evidence is complete”.  It is also relevant that in the case of the first direction I made comments in answer to a question from Mr Lehman about him not talking to his Wife and Daughter over the lunch break, which might have left him with the impression that the direction related to oral discussions.

6.  It seems to me that in these circumstances the directions lacked the necessary clarity, certainty and unambiguous language required of an order before the court will enforce it by committal: see Kao Lee & Yip para 23 supra.  That is not to say that I think that Mr Lehman’s conduct is without fault.  In my view a prudent witness would have appreciated that the contents of the emails might be inconsistent with the intention behind my direction and would have clarified the position before sending the emails.  This is particularly true of a witness who is a lawyer.  Mr Lehman’s failure to do so is typical of his cavalier attitude to compliance with court orders and a general failure to behave prudently in relation to the subject matter of his shareholders dispute with Mr Brown and the conduct of the litigation itself.

7.  I would end with this observation.  In cases in which there is a concern about the risk of witnesses discussing evidence it is advisable that they are given a direction in very precise language and in writing.