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CAMP 99/2021
[2021] HKCA 1178
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 99 OF 2021
(ON AN INTENDED APPEAL FROM HCA NO. 1381 OF 2017)
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| BETWEEN |
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Yusuf Abdulla Yusuf Akbar Alireza |
Plaintiff |
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and |
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Fleet Overseas (New Zealand) Limited |
1 st Defendant |
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Richard Samuel Elman |
2 nd Defendant |
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Before : Hon Cheung and Chow JJA in Court
Date of Decision : 12 August 2021
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D E C I S I O N
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Hon Cheung JA (giving the Decision of the Court) :
I. Renewed application for leave to appeal
1. Peter Ng J dismissed the 2nd defendant’s appeal against the decision of Master Cruden who refused the 2nd defendant’s application for inspection of certain documents disclosed by the plaintiff in his affidavit filed pursuant to an order for discovery. The plaintiff claimed legal privilege to these documents. The Judge refused to grant leave to appeal. The 2nd defendant now renews his application to this Court for leave to appeal. We will deal with the application on paper.
2. The 2nd defendant sought inspection of three groups of documents. These documents were related to a side agreement between the 2nd defendant and the plaintiff to transfer certain shareholdings of the 2nd defendant in Noble Group Limited (‘the Company’) to the plaintiff as part of the package to hire the plaintiff as a Chief Executive Officer of the Company.
3. The side agreement eventually became the Deed of Agreement executed by the parties. The plaintiff relied on the Deed of Agreement to enforce his legal rights while the 2nd defendant denied that the Deed of Agreement has any effect. The 2nd defendant sought inspection of the documents with the hope that the documents would, inter alia, contain evidence of the status of the negotiation between the plaintiff and the 2nd defendant and the basis upon which the two were prepared to enter into a binding legal relationship.
4. The Judge summarised the plaintiff’s claim for legal privilege in his three affidavits :
‘ 34. This court has carefully considered the 3 Affidavits. In this court view, it is reasonably clear, especially from P3, that (i) the Plaintiff had retained his solicitors in an employment context involving advice on and the preparation of a side agreement between him and the 2nd Defendant ie the Deed of Agreement, as well as certain other contractual documents, (ii) specifically, the Plaintiff sought legal advice from his solicitors on the 2nd Defendant’s original proposal, as evidenced in his letter dated 7 October 2011 to the Plaintiff, which was to simply record the commercial terms agreed between them in the said letter, (iii) in the course of the client/solicitors relationship, the Plaintiff had received from his solicitors inter alia advice as set out in emails and various drafts of the Deed of Agreement prepared by them, (iv) each draft had incorporated legal advice from his solicitors as to its appropriate terms, not just in the form of handwritten amendments to or comments on it but also in the drafting itself which embodied and was reflective of his solicitors’ advice to him, and (v) it was only after going through a number of drafts that the final version of the Deed of Agreement was ready to be sent and was sent to the 2nd Defendant on 9 November 2011 as the Plaintiff’s counter proposal.’
5. In the Court below the 2nd defendant advanced four grounds of appeal against Master Cruden’s refusal :
1) The plaintiff’s claim to legal advice privilege was not made out (‘Ground 1’);
2) There was waiver of legal advice privilege (‘Ground 2’);
3) There should be redaction of the parts covered by legal advice privilege; and
4) The inspection is necessary for the fair disposal of the cause or for saving costs (‘Ground 4’).
6. The Judge rejected each of the four grounds.
1) Ground 1
7. The Judge applied the predominant purpose test and held that the predominant purpose of the creation of the drafts was for the purpose of giving legal advice by the plaintiff’s solicitors so as to protect the plaintiff’s interest and not for the purpose of recording the commercial terms of the agreement.
2) Ground 2
8. The Judge held that there was no waiver because waiver of legal advice privilege only covered what had actually been disclosed by the plaintiff to the 2nd defendant i.e. the email dated 9 November 2011 which contained his solicitors’ advice and the draft attached thereto. The waiver did not cover other advices and drafts which have not been disclosed.
3) Ground 3
9. The Judge held that since there was no waiver, it was pointless to redact the documents.
4) Ground 4
10. The Judge held that the drafts could not shed light on the 2nd defendant’s defence. Furthermore, the application for inspection was a fishing exercise.
II. Grounds of appeal
11. The same four grounds are now repeated by the 2nd defendant in the present application.
III. Our view
12. We agree with the Judge’s reasoning in rejecting the four grounds relied upon by the 2nd defendant. We are of the view that the intended appeal has no reasonable prospect of success, nor is it apparent to us that there are other reasons in the interest of justice why the intended appeal should be heard. The application for leave to appeal is refused with costs to the plaintiff. This Court summarily assesses the costs in the amount of HK$65,000 to the plaintiff.
13. As the 2nd defendant’s application is totally without merit, we will pursuant to Order 59, rule 2A(8) make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.
| (Peter Cheung) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
Mr Simon Westbrook SC, instructed by Gall, for the Plaintiff
MinterEllison LLP, for the 2nd Defendant
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