ELIJAH SAATORI v. RAFFLES MEDICAL GROUP (HONG KONG) LTD

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

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REASONS FOR DECISION

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INTRODUCTION

1. I have before me an application by the plaintiff by summons taken out on 30 August 2016 seeking “an order for directions regarding the consequences of the Plaintiffs’ Legal Aid Certificate now not being renewed to cover the Trial and other ancillary matters”, the trial having been scheduled to commence on 2 September 2016.  As made clear by the plaintiff at the hearing on 1 September 2016, the direction that he is seeking is to adjourn the trial for 4 to 5 months so that new counsel could be instructed, either by the Director of Legal Aid on his behalf (in the event that his appeal against the renovation of his legal aid certificate should be successful) or by him privately, to represent him at the trial of this action.

2. At the conclusion of the hearing on 1 September 2016, I informed the parties that I was not prepared to vacate the trial dates.  I dismissed the plaintiff’s summons with costs to the defendant, with reasons for my decision to be given later.  This I now do.

HISTORY OF PROCEEDINGS

3. The plaintiff’s claim herein against the defendant is for damages for medical negligence.  According to the plaintiff, he attended the defendant’s clinic on or about 5 August 2003 for the purpose of wax removal in the right ear. He said that shortly after the treatment which he received at the defendant’s clinic, he experienced acute, chronic tinnitus which developed into serious physical and psychological injuries and disabilities.

4. The present action was commenced on 9 May 2006.  Originally, the plaintiff acted in person.  His action had twice been struck out by Saunders J and DHCJ Carlson on 11 April 2008 and 7 August 2009 respectively on the ground that he had failed to comply with the court’s directions for the filing and service of certain expert report, but the action was subsequently restored by the Court of Appeal in January 2010.

5. On or about 28 January 2011, a legal aid certificate was issued to the plaintiff in this action.  On or about 10 February 2011, Messrs Burke & Co came on the record as acting for the plaintiff upon the instruction of the Director of Legal Aid.  Mr Jeevan Hingorani was also assigned by the Director of Legal Aid to act as counsel for the plaintiff.  He had been acting as the plaintiff’s counsel since July 2013 at the latest until August this year in circumstances which I shall briefly describe later in these reasons for decision.

6. Thereafter the action proceeded rather slowly.  For the present purpose, it is not necessary to set out all the interlocutory proceedings in this action. Eventually, the pre-trial review came before this court on 15 September 2015.  At that hearing, the plaintiff was granted leave to set the action down for trial.  The estimated length of the trial was 10 days.  Paragraph 7 of the order made at the PTR expressly provided as follows:-

“The solicitors for the Plaintiff shall send a copy of this Order to the Legal Aid Counsel in charge of this case, to ensure that there is no delay in compliance with these Directions due [to] late assignment of counsel or due to late issuance of an appropriate certificate.”

7. The action was set down for trial on 7 October 2015.  As earlier mentioned, the trial is scheduled to commence on 2 September 2016 with 10 days reserved, the parties having been notified of the trial dates by the court on 19 November 2015.

8. An application by the plaintiff for leave to amend the amended writ of summons, re-amended statement of claim and revised statement of damages came before this court on 28 June 2016.  The plaintiff was represented by Mr Hingorani at that hearing, and the court made an order granting the leave sought by the plaintiff.

9. By a letter dated 5 August 2016, Mr Hingorani informed the court that for reasons of professional embarrassment he had withdrawn as counsel for the plaintiff in the present case.  In the course of his submissions on 1 September 2016, the plaintiff explained that he had a number of what he described as “fiery outbursts” with Mr Hingorani and he made various allegations against Mr Hingorani which it is not necessary for me to set out in these reasons.  I should make it clear that I have not heard Mr Hingorani’s side of the story and thus I would not express any view on those allegations.

10. On 10 August 2016, the Director of Legal Aid filed a Notice of Re-Assignment of Counsel naming Mr Neal Clough as the replacement counsel for the plaintiff.

11. On 23 August 2016, the plaintiff took out a summons seeking leave to rely on the evidence of a “board game” expert in this action.

12. On 25 August 2016, Messrs Burke & Co on behalf of the plaintiff wrote to the defendant’s solicitors (Messrs Robertsons) stating that:-

“We are now authorized to inform you that ZION has reached a settlement in its claim against Wah Tong – with Wah Tong paying a sum of HK$1.7 million to ZION”.

13. That was the first time that the plaintiff disclosed to the defendant ZION’s settlement with Wah Tong.  On the same day (25 August 2016), Messrs Robertsons wrote to Messrs Burke & Company seeking further information about the settlement.  In Messrs Burke & Company’s reply also dated 25 August 2016, Messrs Burke & Company informed Messrs Robertsons of the following:-

(1) the date of the settlement was 7 November 2015;

(2) the settlement agreement was confidential and should not be disclosed without the agreement of both parties (ie ZION and Wah Tong);

(3) the settlement sum (ie HK$1.7 million) was received “on the dates set out in the agreement”;

(4) as for the “Explanation why Judge not informed”, the answer was “Instructions to accept our advice that this must be disclosed – obtained on 24^th August 2016”; and

(5) in respect of the question “Has DLA been informed”, the answer was “Yes”.

14. The plaintiff’s new expert evidence summons came before this court on 26 August 2015.  The plaintiff was represented by Mr Clough at that hearing.  In his written skeleton argument lodged with the court on 25 August 2015, Mr Clough informed the court that at the time of writing his skeleton argument, legal aid certificate for the plaintiff had not been extended for the trial.  At paragraph 27 of the skeleton argument, Mr Clough stated as follows:-

“Matters have arisen since my assignment on 10 August 2016 that make it necessary for me to withdraw from the case. I have agreed to appear at this Directions hearing and will inform the Court of any update as to any matters that will pertain to the further conduct of the case insofar as it relates to representation.”

15. In the course of the hearing on 26 August 2015, Mr Clough further informed the court as follows (according to the notes kept by the defendant’s lawyers):-

“… As far as legal aid is concerned, Mr. Saatori had attended the Legal Aid Department yesterday [25^th August 2016] and was required to give an update on the means as well as the merits part of the legal aid. The Senior Legal Aid Counsel phoned me yesterday and explained that the file has now gone to the Section Head. It is certainly on the cards that Mr. Saatori will not be represented at the forthcoming trial. This had directly nothing to do with my position. Independent of whether legal aid will be extended, in a three-way conversation with the Legal Aid Department, circumstances arose such that I will not be in a position to act for Mr. Saatori in any event.”

16. In the course of his submissions on 1 September 2016, the plaintiff made a number of allegations against Mr Clough.  Again, I have not heard Mr Clough’s side of the story, and I would not express any view on those allegations.

17. At the conclusion of the hearing on 26 August 2016, I dismissed the plaintiff’s summons for leave to rely on the new expert evidence, the primary reason being the plaintiff’s delay in making the application which, if acceded to, would inevitably mean that the trial (of liability and quantum) could not take place on 2 September 2016 as scheduled.  At the end of that hearing, I also asked Mr Clough to convey to the plaintiff that the court expected the trial proper to commence on 2 September 2016.

18. By a Notice of Revocation dated 29 August 2016 (“the Notice of Revocation”), the Director of Legal Aid gave notice that the legal aid certificate dated 28 January 2011 issued to the plaintiff had been revoked.  I am given to understand that the plaintiff has lodged an appeal against the Director of Legal Aid’s decision to revoke the legal aid certificate, and the appeal will be heard on 15 September 2016.

19. By a Memorandum of Notification of an Application for Legal Aid also dated 29 August 2016 (“the Memorandum”), the Director of Legal Aid gave notice that the plaintiff had made an application for legal aid to prosecute an appeal against the court’s aforesaid order made on 26 August 2016 refusing to grant leave to the plaintiff to rely on the new expert evidence in this action.

20. By letter dated 30 August 2016, the Legal Aid Department informed the plaintiff’s former solicitors, Messrs Burke & Company, that the plaintiff’s legal aid certificate was revoked “as the Director is satisfied that he has wilfully failed to disclose facts pertaining to his financial resources”.

21. On 30 August 2016, the plaintiff made the present “urgent” application, returnable on 1 September 2016, to the court for further directions.

22. By a letter dated 31 August 2016, the defendant’s solicitors applied for an order to vacate the hearing of the plaintiff’s summons on 1 September 2016 and adjourn it for hearing on 2 September 2016 instead.  The defendant’s application to adjourn the hearing of the plaintiff’s summons was not accepted by the court.  The court also directed that, for the avoidance of doubt, any stay of proceedings consequent upon the filing of the Memorandum shall be lifted.  At the time when that direction was given, the court had not seen the plaintiff’s notice of appeal against the Director’s decision to revoke the legal aid certificate.  In fact, the court still has not seen the notice of appeal, but the contents of it were read out by the plaintiff in the course of his submission on 1 September 2016.

23. By a letter dated 31 August 2016 from the Legal Aid Department to the court (a copy of which was shown to the parties at the hearing on 1 September 2016), the Director of Legal Aid informed the court of the following:-

“We received from the former assigned solicitor by letter on 19.8.2016 a copy settlement agreement regarding his company in which a settlement sum of $1.7 million was mentioned. As Mr Saatori was in the UK, we had not been able to update his means until 25.8.2016 when we found out that he had substantial means which was not disclosed. Hence as the Director was satisfied that he had wilfully failed to disclose the same in contravention of the Legal Aid Regulations, we revoked his certificate on 29.8.2016.”

Plaintiff’s Grounds of application

24. In support of his application to vacate the trial dates, the plaintiff has produced copies of:-

(1) a “Reference Letter” issued by the Tuen Mun Hospital dated 23 July 2010 stating that the plaintiff “suffers from disturbing chronic bilateral tinnitus, which causes insomnia in turn, making it impossible for him to work in the morning”;

(2) a receipt from “drs anderson & partners” dated 25 August 2016 for the amount of HK$290 as “drug fee”.  The diagnosis of “tinnitus” is also stated on the receipt; and

(3) 3 “Drug Labels” (underneath the aforesaid receipt) which indicate that the drugs prescribed for the plaintiff are “to calm nerves before events”, “Tranquiliser” and “Antidepressant”.

25. In his submissions, the plaintiff says that:-

(1) he is on permanent sick leave in the morning as a result of the tinnitus caused by the defendant’s negligence;

(2) he has sleep difficulty and sometimes could not sleep at all at night;

(3) he is not capable of conducting the trial himself because of his conditions; and

(4) he believes that his legal aid appeal is certain to succeed or has a very high chance of success because his solicitors had in fact informed the Legal Aid Department of his company’s settlement with Wah Tong back in February 2016.

26. The plaintiff submits that the trial should be adjourned for 4 to 5 months so that, after his successful appeal against the Director of Legal Aid’s decision to revoke his legal aid certificate, new counsel could be assigned to act for him.  The plaintiff further says that should his legal aid appeal be unsuccessful, he would be able to raise funds (to the extent of HK$3.5 million to HK$5 million) from friends or other sources within a period of about 2 months and instruct new counsel on a private basis to act for him.

Discussion

27. On the materials before me, I am not in a position to determine whether the Director of Legal Aid was correct to revoke the plaintiff’s legal aid certificate.  In any event, that is a matter entirely between the plaintiff and the Director of Legal Aid, and does not have a direct bearing on the position as between the plaintiff and the defendant.

28. In any event, it would appear that the late revocation of the plaintiff’s legal aid certificate was at least partly the result of his own making.  The plaintiff ought to have made himself available to the Director of Legal Aid well in advance of the trial for the purpose of updating his means instead of waiting until 25 August 2016 (which was barely a week prior to the commencement of the trial) for such assessment to be carried out, particularly having regard to the order made at the PTR referred to in paragraph 6 above.  Had the updating assessment been carried out in good time, even if the Director were to incorrectly revoke the plaintiff’s legal aid certificate (as alleged by him), the plaintiff’s appeal against Director of Legal Aid’s decision could also be disposed of well in advance of the trial.

29. As stated by Deputy High Court Judge Kenneth Kwok, SC in The Personal Representative of The Estate of Chan Chuen v Forestside Ltd, HCA 2055/2011 (29 December 2015), at paragraph 19:-

“It is in the interests of litigants to get ready for legal proceedings. If a litigant wishes to be legal represented, it is incumbent on the litigant to:

(1) instruct privately funded lawyers; or

(2) apply for legal aid, and if necessary and appropriate, to appeal against any refusal to grant legal aid;

in good time and with due diligence so that the lawyers can properly equip themselves for trial.  Litigants have no right to expect the court to grant them indulgence if they do not act with due diligence.  Litigants should properly equip themselves for legal proceedings.  The court does not wait for dilatory litigants to be ready.”

30. I should also add that the plaintiff’s late disclosure of the settlement with Wah Tong to the court and the defendant seems to me to be entirely unjustifiable.  That settlement is, on any view of the matter, relevant to the quantum of the plaintiff’s claim herein against the defendant and ought to have been disclosed as soon as it was entered into.  The fact that Messrs Burke & Co did not have the plaintiff’s instruction to disclose the same is irrelevant, because the obligation was on the plaintiff to make the relevant disclosure.  For the present purpose, it is not necessary for me to determine whether Messrs Burke & Company had properly complied with their duty as officers of the court in continuing to act for the plaintiff with full knowledge that the plaintiff had failed or refused to comply with his discovery obligation  (see Myers v Elman [1940] AC 282).

31. I can readily see that the plaintiff will suffer some prejudice if he does not have legal representation for the purpose of the trial of this action.  On the other hand, I have to balance the prejudice that the defendant will suffer should the trial dates be vacated.

32. As submitted by Mr Raymond Leung SC on behalf of the defendant:-

(1) The defendant’s factual witness, Dr Joseph De Pasquale, has retired to Malta but has voluntarily returned to Hong Kong to give evidence.  Dr De Pasquale was the doctor on duty at the defendant’s clinic at the time of the incident complained of by the plaintiff.  He is now over 70 years of age and this matter has been hanging over his head for many years. The defendant may not be able to secure Dr De Pasquale’s attendance in Hong Kong again if the trial is adjourned.  It is also unfair to Dr De Pasquale that he has to travel to Hong Kong again given his advanced age.

(2) Given the plaintiff’s history of involvement in various proceedings, there is no reason to think that the plaintiff will not be able to conduct the trial with some assistance from the court.  In this regard, I should say that, having heard the plaintiff made detailed submissions in the course of the morning on 1 September 2016, it seems to me that the plaintiff is able to think and express himself clearly and more capably than many litigants in person who appeared before this court in the past.

(3) The present case has gone on for over 10 years since the issue of the writ of summons.  It should be finally and expeditiously concluded as soon as practicable in fairness to both parties.

(4) Given the plaintiff is currently not covered by legal aid, if the adjournment sought by the plaintiff is granted, the defendant is unlikely to be adequately compensated by any costs order which it may be awarded in consequence of the adjournment of the trial.  In this regard, Mr Leung has informed the court that the plaintiff currently owes the defendant around HK$800,000 arising from adverse costs orders previously made against the plaintiff, and that the defendant’s costs thrown away as a result of any adjournment of the trial (to new dates to be fixed which, having regard to the court’s diary, are likely to be at least 12 months from today) would be in the region of HK$800,000. When this court asked the plaintiff whether he would be able to pay the sum of HK$1.6 million into court as security for the defendant’s costs as a condition of an adjournment of the trial being granted, the plaintiff stated he would not be able to do so because he, his family and his company are all impecunious.  It thus seems to be clear that the defendant will not be adequately compensated by any costs order which may be made in its favour should the court accede to the plaintiff’s application for adjournment of the trial.

33. A date which the court has fixed for the trial is a “milestone date” and cannot be varied unless there are exceptional circumstances justifying the variation under Order 25, rule 1B(3) of the Rules of the High Court.  As mentioned in paragraph 42 of Practice Directions 5.2, late instructions from a client, a change in the team of lawyers, and the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.  Also, as stated in paragraph 25/1B/1 of Hong Kong Civil Procedure 2016, neither will a last-minute application by the plaintiff for legal aid, which is not reasonably explained, be considered an exceptional reason.  In my view, the mere fact that a legal aid certificate is discharged and a litigant finds himself to be without legal representation shortly before the commencement of trial cannot also be regarded as an exceptional reason justifying a variation of a milestone date, particularly where, as in this case, it has not been shown that the plaintiff is without fault in the late revocation of his legal aid certificate.

34. At the hearing on 1 September 2016, the court also explored with the plaintiff various ways in which he might be assisted in his conduct of the trial, including (i) starting the trial at 11:00 am instead of 10:00 am in view of his allegation that he had difficulty sleeping at night, and (ii) starting the trial on 6 September 2016 so that he would have more time to prepare for the trial.  However, all those proposals were rejected by the plaintiff.

35. In all the circumstances, I am not prepared to exercise my discretion to adjourn the trial of this action and thus it shall commence on 2 September 2016 as scheduled.

Disposition

36. I dismiss the plaintiff’s summons dated 30 August 2016 with costs to the defendant, to be taxed if not agreed.  The trial of this action shall commence on 2 September 2016 as originally fixed.  For the avoidance of doubt, any stay of proceedings consequent upon the filing of (i) the Notice of Revocation, and/or (ii) the Memorandum by the Director of Legal Aid shall be lifted.