ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2024] HKCFI 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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D E C I S I O N

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A.  INTRODUCTION

1.  By the Decision dated 12 April 2024 (“Decision 2”), this court: (1) dismissed most of the requests in the defendant’s (“Vivien”) application for specific discovery by summons dated 17 February 2023 (“Discovery Summons”); and (2) dismissed Vivien’s application for interrogatories by summons dated 22 December 2023 (“Interrogatories Summons”).  Vivien now seeks leave to appeal to the Court of Appeal against Decision 2.

2.  Vivien has invited this court to deal with this application together with her leave application against this court’s decision dated 20 August 2021 (“Decision 1”).

B.  SUMMONS DATED 26 APRIL 2024

3.  By summons dated 26 April 2024 (“Leave Summons 2”), Vivien applies for leave to appeal against Decision 2 on the grounds as per the draft Notice of Appeal (“NoA”) attached to Leave Summons 2.

4.  I shall deal with the grounds in turn.

B1.  Grounds 1, 4 and 6: No LPP belonging to Mother can be asserted by Angela

5.  In gist, Vivien submits it is reasonably arguable that, as a matter of law, where a will is contested in a probate action, the LPP which belongs to the estate should belong equally to parties claiming under the same estate, and thus an executrix under the contested will (in this case, Angela) cannot assert such LPP (which is not litigation privilege enjoyed in her own right) against another executrix under the earlier will (in this case, Vivien).  Vivien goes on to submit that the Practice Note issued by the Law Society in England on 5 September 2023, stating inter alia that “Where the validity of a will is disputed there may be a dispute as to who the personal representatives are. … In those circumstances … it is considered that rival claimants to a grant of representation cannot assert a right to confidentiality or privilege against each other”, is consistent with Vivien’s position.

6.  In answer to the point, Angela submits that the new argument does not assist Vivien.  Vivien is not a beneficiary or executrix under the 2008 Will.  There is no reason why she should be allowed to see privileged materials relating to this contested will: if her challenge fails, she would have no right to see such materials; and if she is allowed to see them simply because she mounts a challenge against that will, then if she turns out to be wrong she would have seen LPP materials which she is not entitled to (and this is irreversible).

7.  In reply, Vivien submits the fact that Vivien is “not a beneficiary or executrix under the 2008 Will” is neither here nor there – it would be wholly arbitrary for Angela to be entitled to assert privilege against Vivien simply because Angela (and not Vivien) happened to be the sole executrix of the subsequent will, and not the prior will, under consideration.

8.  Having considered the rival contentions of the parties, I am of the view that Vivien’s argument has reasonable prospects of success.  Accordingly, I grant Vivien leave to appeal on Grounds 1, 4 and 6 of the NoA.

B2.  Ground 2: Classes 1 to 4 (see Decision 2 §§51-72)

9.  For the reasons set out in paragraphs 19 to 29 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 2 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 2 of the NoA.

B3.  Ground 3: Alleged lack of evidence in support of LPP (see Decision 2 §§77-79)

10.  For the reasons set out in paragraphs 31 to 37 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 3 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 3 of the NoA.

B4.  Ground 5: Alleged waiver of privilege re Class 5 (see Decision 2 §§80-81)

11.  For the reasons set out in paragraphs 39 and 40 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 5 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 5 of the NoA.

B5.  Ground 7: Class 8 and Interrogatories Summons (see Decision 2 §§107-122)

12.  For the reasons set out in paragraphs 42 to 47 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 7 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 7 of the NoA.

C.  SUMMONS DATED 3 SEPTEMBER 2021

13.  By summons dated 3 September 2021 (“Leave Summons 1”), Vivien applies for leave to appeal against Decision 1 on the grounds as per the draft Notice of Appeal attached to Leave Summons 1.

14.  Angela submits that as Vivien has filed her Defence and Counterclaim in this action, the proposed appeal against Decision 1 is plainly academic.  Leave should be refused on this basis alone.

15.  Vivien’s application was for discovery (and provision of information, which is now abandoned) against a third party before the filing of her Defence.  At Decision 1 §144, the court dismissed the application and ordered Vivien to file her Defence within 14 days.  The timing of the application is a key feature of the application, and one of the grounds of this court in dismissing Vivien’s application is that the application is premature before the filing of her Defence: Decision 1 §§35-49.

16.  Thus, having now filed her Defence and Counterclaim, Vivien cannot in her appeal simply seek an order that discovery be provided now, after she has filed her Defence.  This would turn the application into an entirely different one, which was not the one made before this court.

17.  Further, the issues in this probate action were only crystallised after the close of pleadings, when Vivien filed her Amended Rejoinder, Reply to Defence to Counterclaim and Defence to Counterclaim to Counterclaim on 26 March 2024.  What would be necessary in terms of discovery for the purpose of disposing fairly of the cause or matter in issue and for saving costs obviously by then took an entirely different shape.  The proposed appeal by Vivien is clearly academic also for this reason.

18.  Accordingly, I refuse Vivien leave to appeal against Decision 1.

19.  I make the following order as to costs:

(1)  The costs of and occasioned by Leave Summons 1 be paid forthwith by the defendant to the plaintiff.

(2)  The costs of and occasioned by Leave Summons 2 insofar as they relate to Grounds 1, 4 and 6 of the NoA be in the cause of the appeal.

(3)  The costs of and occasioned by Leave Summons 2 insofar as they relate to Grounds 2, 3, 5 and 7 of the NoA be paid forthwith by the defendant to the plaintiff.

20.  The above costs are to be taxed on the party and party basis if not agreed (with a certificate for 3 counsel).