PHILIPPE DELHAISE v. NG & CO (a firm) AND ANOTHER

cacv 386/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 386 of 2003

(on appeal from HCA NO. 10165 of 2000)

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J U D G M E N T

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Hon Le Pichon JA:

1.  This is an appeal from the order dated 5 November 2003 of Deputy High Court Judge Gill dismissing the plaintiff’s claim against the defendants for breach of contractual duty and/or negligence.  At the conclusion of the appeal, judgment was reserved.

Background

2.  In June 1994, the plaintiff, acting in person, brought an action (the 1994 action) against a firm of solicitors, the senior partner of that firm and an assistant solicitor employed by that firm collectively (“the 1994 defendants”).  Six months later, on 12 December 1994, the 1^stdefendant went on the record as the plaintiff’s solicitors in that action.  The handling solicitor was Christopher Erving.  When Mr Erving resigned from the 1^st defendant on 31 July 1996 and established the 2^nd defendant on 1 August 1996, the 2^nd defendant took over as the plaintiff’s solicitors in those proceedings. 

3.  The 1994 action came on for trial in March 1997.  During the morning of the second day of trial, when the action appeared doomed, the plaintiff accepted the advice from his counsel and solicitors to drop the case and to settle as best he could the other side’s costs.  Having done that, the plaintiff brought the present proceedings against the defendants in negligence for not having advised that the 1994 action stood very little chance of success; alternatively, if his solicitors were of the view that he had reasonable prospects, he should not have been advised to have the case dismissed.

The 1994 action

4.  The 1994 action came about in this way.  The plaintiff who comes from Belgium moved to Hong Kong with his wife of 8 years and two children in 1984.  His business ventures did not work out.  His financial situation was such that by 1988 he had to explore alternative ways to earn enough to support his family.  By mid-1988, it would appear that the plaintiff had secured or was high on a short list for a position in Europe.  His wife (“Ms Gioan”) had no wish to leave Hong Kong having taken a lover here.  She went to seek legal advice in relation to her matrimonial affairs from David Glynn, the senior partner of Hampton Winter and Glynn (“Hamptons”).  Mr Glynn’s then assistant, Sharon Ser issued a petition for judicial separation on behalf of Ms Gioan on 26 July 1988 and made an ex parte application for an injunction restraining the plaintiff from surrendering the lease on the family home, compelling him to keep the rent up and prohibiting his departure from Hong Kong.  Judge Lee made the order which had drastic repercussions: the plaintiff lost his opportunity of employment in Europe.  He engaged Stevenson, Wong & Co (“SW”) to act for him.  No steps were taken to seek an immediate discharge or variation of the prohibition and mandatory orders.  On the return date which was 14 days after the date the order was first made, the order was discharged with costs for non-material disclosure of the family’s financial circumstances and, in particular, the plaintiff’s need to secure a job in Europe.  According to the plaintiff, all this was known to Mr Glynn and Ms Ser because they had been dealt with in correspondence preceding the July order and withheld from the judge.

5.  The plaintiff was of the view that the non-disclosure was deliberate, amounting to gross professional misconduct.  Receiving no joy from the Hong Kong Law Society with whom a complaint had been lodged, the plaintiff sought legal advice from Mr John Edwards of Kao, Lee & Yip.  He received advice to the effect that there was a possible claim in malicious prosecution but the claim would be novel and difficult to prove.  Mr John Bleach of counsel subsequently confirmed that advice.  The claim was not pursued by the plaintiff at the time because of a lack of funds.

6.  In February 1992, the plaintiff commenced an action against SW in negligence alleging that they failed to advise him that immediately following service of the ex parte order he could have applied to discharge the order or vary its terms or request the court for an undertaking in damages as a condition of the continuance of the order.  He sued for the rent he had to pay, costs incurred over and above those recovered from Hamptons, loss of earnings of approximately $50,000, Mr Edwards’ bill plus costs.  The case was settled in July 1992 by SW paying the plaintiff $120,000.

7.  The plaintiff’s resentment at what he considered was a serious miscarriage of justice on the part of Hamptons remained unabated.  By then, his marriage to Ms Gioan had come to an end.  He felt that his life had been left in ruins through the deliberate and cynical disregard by Ms Ser and Mr Glynn of their professional obligations.  With time limitations in mind, the plaintiff issued the writ in the 1994 action against Mr Glynn, Ms Ser and Hamptons.  His complaint was that the ex parte order was grounded in bad faith, maliciously and with ulterior motive.  He claimed damages in respect of the rent, unrecovered costs and loss of earnings which amounts comprised much of the damages sought against and recovered from SW in the 1992 action.  He further claimed $14 million for the loss of freedom between 26 July and 9 August 1988 and aggravated damages. 

8.  At that stage, the legal advice the plaintiff had received pointed to his claim being problematic.  Having commenced the 1994 action, the plaintiff was concerned as to what he should do thereafter.  He met Mr Erving in October 1994 who agreed to represent the plaintiff.  Early on in the solicitor-client relationship, Mr Erving was asked to consider the merits of the plaintiff’s case.  As the judge observed, his findings on the nature of Mr Erving’s advice which was in material dispute would lead inexorably to the outcome of the action before him.

Chronology of events

9.  Between the date of Mr Erving’s engagement and the trial in March 1997, there were a number of key events which are dealt with below. 

10.  The defence to the 1994 action filed on 30 January 1995 was that the 1994 defendants were acting on the instructions of their client, the plaintiff’s ex-wife, that they did so honestly and reasonably believing that the ex parte order was a reasonable, lawful and necessary remedy to preserve the family’s status quo.  It was said that the failure by the 1994 defendants to disclose the pre-order correspondence between them and the plaintiff relating to the plaintiff’s financial circumstances was but an oversight.  As to damages, liability was denied but that in any event the plaintiff had already received compensation from SW.  In May 1995, Mr Erving advised the plaintiff to seek counsel’s advice.  Instructions were accordingly delivered to Mr Allman-Brown who advised the plaintiff in conference.  A copy of those instructions was provided to the plaintiff.

11.  As the instructions drawn by Mr Erving featured somewhat prominently in the proceedings below and in argument before this court, I should refer to the following passages:

“… Your Instructing Solicitors’ primary concern is whether or not the Plaintiff will be able to establish his claim in the light of the obvious defence of the Defendants that at all material times they were acting on the instructions of their client, the Plaintiff’s ex-wife because if the Defendants can establish that that is the case, it is Instructing Solicitors’ view that the Plaintiff’s claim will fail.”

Mr Erving proceeded to set out 7 matters which, in his view, could affect the defence raised.  He then made specific reference to the fact that the plaintiff’s ex-wife who lived in Europe refused to be involved.  All attempts to persuade her to give statements had been unsuccessful.  The instructions continued as follows:

“Counsel will please consider the papers and advise Instructing Solicitors and the Plaintiff on the prospect of succeeding with this quite noble claim.”

Mr Allman-Brown was also asked to advise as to the need, if any, to amend the statement of claim.

12.  A conference with Mr Allman-Brown attended by the plaintiff took place on 26 May 1995.  The judge referred to Mr Allman-Brown’s statement which became his evidence-in-chief relating, inter alia, to the advice given at that conference.  Mr Allman-Brown had “serious concerns about [the plaintiff’s] ability to establish both liability and loss”.  He told the plaintiff that it would be “very difficult for him to prove malicious prosecution against any of the 1994 defendants without supporting evidence from Ms Gioan” having regard to the defendants’ assertion that they were acting under her instructions and had not intended any malice.  By that stage, it had become clear that the plaintiff could not expect assistance from Ms Gioan.  As to quantum, Mr Allman-Brown opined that the plaintiff needed to adduce evidence of additional loss or damage in order to rebut the double recovery defence and to ground his claim for exemplary or aggravated damages.  Mr Allman-Brown was of the view that there appeared to be no evidence of any loss and damage over and above that represented by the amount of damages recovered from SW.  The judge observed that it was evident from Mr Allman-Brown’s account that there were going to be difficulties and that the plaintiff was told of them.

13.  In November 1995, Mr Allman-Brown failed to obtain leave from the judge to amend the statement of claim, amongst other things, to add a claim for false imprisonment.  Thereafter he received no further instructions.

14.  In his witness statement (at para 21), Mr Erving stated that shortly thereafter, he asked the plaintiff whether he wished to continue with his claim in view of the difficulties he faced in establishing both liability and quantum.  According to Mr Erving, the plaintiff was adamant that he would like to see the 1994 defendants being brought to justice and Mr Glynn being cross-examined in court and therefore instructed him to progress the proceedings to trial.

15.  In March 1996, Mr Erving successfully applied to amend the statement of claim.  The amendments included that of replacing the claim for damages of $1 million per day to a claim for exemplary, alternatively, aggravated damages.

16.  The trial of the action was scheduled to commence on 19 March 1997.  Hamptons made an attempt to settle the proceedings approximately a month prior to that date by making a drop hands proposal with gagging conditions but it was unsuccessful.  This aspect is considered in greater detail later.

17.  Almost immediately thereafter, on or about 17 February 1997, Mr Leo Remedios of counsel was briefed on the plaintiff’s behalf.  He had an initial pre-trial conference with Mr Erving at which the difficulties of the case were reviewed pertaining to both liability and damages in respect of both the compensatory damages claim as well as the exemplary damages claim.  A note recording these matters was sent to Mr Erving and those attending the conference at which the contents of the note were discussed.  The advice rendered was to the effect that the law in the area of malicious prosecution was unsettled, that the plaintiff might lose and even if liability was made out, he had concerns factually about the loss and damage claimed, and that he had not seen any evidence of any actual loss and damage suffered by plaintiff who needed to address the point.  According to Mr Remedios, the plaintiff’s response was this:

“I note your advice on the law.  Although it appears to you that there are difficulties with the case, I still want to go ahead with it.  Glynn needs to be held responsible for what he did to me.  I want to see him in Court.  As to evidence of loss and damage, I can deal with that.”

18.  As noted above, the trial did not advance beyond the opening address, the judge having formed a view on the papers.  By the end of the morning of the second day, it became clear that the chances of success were negligible.  As the judge had already rejected the invitation that the question of law be determined as a preliminary issue, the only remaining alternatives considered were to continue the action, lose and appeal (but the plaintiff was not prepared to invest anything more in the litigation) or negotiate a settlement as best one could in the circumstances with a view to limiting the other side’s costs.  In the end, the action was settled upon payment of $500,000 to the 1994 defendants in respect of costs.

19.  Before releasing the parties the judge considered, but ultimately decided against, making a wasted costs order against the plaintiff’s solicitors personally under Order 62 rule 8 of the Rules of the High Court.  On 25 March 1997, “deeply affected” by the judge’s comments in relation to a possible wasted costs order and questioning whether the plaintiff’s case even exhibited a reasonably sound cause of action, the plaintiff wrote to Mr Erving to the effect that if the judge were correct, he should have been advised that he had no cause of action and had he been so advised at the time the settlement offer was made, he would not have turned down the offer and carried on.  He suggested a reduction of the 2^nddefendant’s fees.  Mr Erving replied on 8 April 1997 stating that having discussed the hearing with counsel, “we both remain firmly of the view that you did have a good cause of action, such that before another judge the result could have been quite different.”  Mr Erving declined to reduce his fees.  This action for professional negligence was subsequently instituted.

The pleadings

20.  Paragraph 21 of the amended statement of claim identified a number of serious difficulties which beset the 1994 action such that the action was bound to fail or stood very little chance of success.  The complaint was that Mr Erving ought to have appreciated those difficulties and that he ought to have advised the plaintiff that the action stood very little chance of success.

21.  Under the particulars of negligence of the 1^st defendant, paragraphs (1) to (3) identified the respects in which SW had been negligent and the recovery of damages from then.  Paragraphs (4) to (9) identified specific conceptual and analytical difficulties affecting the claim: the compensatory damages pleaded in the statement of claim in the 1994 action had already been recovered from SW and any item not yet recovered could not have justified an action in the High Court; the claim for damages for distress, mental anguish and loss of liberty would not have resulted in a level of damages justifying a High Court action; in any event, each of those claims could not succeed without first succeeding in proving malice on the part of Hamptons and/or Mr Glynn and/or Ms Ser; malice would be difficult to prove and even if proved there was the further hurdle of showing that the ex parte order would not have been made had there been full and frank disclosure; and the claim for exemplary and/or aggravated damages stood no chance of success without successfully proving malicious prosecution.

22.  The allegation in paragraph (11) was that the 1^st defendant failed to advise the plaintiff that the 1994 action stood very little chance of success and even then, there remained a risk as to costs if the damages awarded were below the High Court threshold.  Paragraph (12) alleged that Mr Erving ought to have advised the plaintiff as to the hopelessness of his case not at the trial but at a much earlier stage in the proceedings.

23.  Paragraph 19 of the defence of the 1^st defendant read:

“19.     In response to Paragraph 21, the First Defendant denies that it was negligent and/or breached any implied term and/or duty of care as pleaded or at all.  In further reply to Paragraph 21, and specifically in answer to the matters pleaded under the paragraph headed ‘Particulars of Negligence of the First Defendant’ (‘the Particulars’), the First Defendant avers as follows:

(a)              …

(b)             In relation to each of the matters pleaded in paragraphs (4) to (12) of the Particulars, the First Defendant avers that it did fully advise the Plaintiff of these matters and generally the difficulties that he would face in trying to establish both the liability and the quantum of his claim, including:

…”

That sub-paragraph went on to plead the specific advice given.  The 1^st defendant alleged that it rendered that advice through Mr Erving on 29 March 1995 and on or about 23 November 1995.  It also relied on the advice given in conference by Mr Allman-Brown in May 1995.

24.  The particulars of negligence pleaded against the 2^nd defendant, aparting from adopting those made against the 1^st defendant focussed largely on advice given at the trial itself.  The 2^nd defendant relied on the advice given through Mr Remedios of counsel who had been briefed for the trial.  It is to be noted that the particulars made no reference to any failure to advise at the time of the drop hands settlement offer which preceded Mr Remedios’s involvement.

The judge’s findings

25.  After reviewing the pleadings, the evidence of the principal protagonists as well as certain written documentation, the judge set out his findings.  He noted that there had been no contemporaneous written record of advice given by Mr Erving to the plaintiff in the early days of their association.  Assuming that Mr Erving’s evidence to the effect that he did advise the plaintiff that his case was a difficult one were not accepted, the judge nonetheless concluded (at para 57 of his judgment) that:

“in the fullness of time he was told of such difficulties by both counsel who came to represent him.  Their advice separately given was unequivocal; that proving malice was going to be a struggle; that he would need to provide proof of loss beyond what had already been won from SW; that the defence of acting in the interests of a client was a viable one.”

26.  The depth of feeling exhibited by the plaintiff against the members of Hamptons who had a role in obtaining the ex parte prohibition order registered with the judge who formed the view that “whilst monetary compensation was [the plaintiff’s] primary motivation in running the 1994 action, not far behind was the wish, harboured for all the years since 1988, to have [Hamptons] publicly grilled to their discomfort and embarrassment; winning the case was not a necessary function to achieve that.”

27.  The judge dismissed the plaintiff’s claim, expressing himself satisfied that from the outset the plaintiff had been apprised of the difficulties he faced in prosecuting the 1994 action.

This appeal

28.  It was common ground that the central issue at trial was whether the plaintiff was advised that the 1994 action “stood very little chance of success.”  Mr Smith SC who appeared for the plaintiff sought to impugn the judge’s findings that he had been so advised on the basis that those findings were plainly wrong.  It was said that the judge had not taken into account crucial documents running counter to the defendants’ case, and that he had based his findings on the evidence-in-chief of witnesses but not modifications of that evidence made in cross-examination.

29.  In all, Mr Erving had made 7 attendance notes.  None of them recorded any advice that the 1994 action stood very little chance of success, nor did they allude to the difficulties identified in paragraph 21 of the amended statement of claim.  It was submitted that it was inherently improbable that a solicitor would fail to record his advice.  

30.  Quite apart from the absence of contemporaneous documents recording the advice said to be given, it was said that there were other documents in existence which were inconsistent with such advice having been given.  Mr Smith placed considerable reliance on the letter dated 8 April 1997 written by Mr Erving shortly after the debacle before Stone J.  It read, in pertinent part, as follows:

“… I have discussed the hearing with Leo Remedios and we both remain firmly of the view that you did have a good cause of action, such that before another Judge the result could have been quite different…”

It was submitted that that gave an indication of Mr Erving’s view of the case and that it was plainly not that pessimistic.  The court was referred to the following passages in Mr Erving’s evidence in cross-examination as reinforcing that view:

Q.    … was he ever told that the case stood very little chance of success?

A.    In those words, no.

(Tr. p. 311M)

Q.    … would you agree that you did not in terms advise him that the case is hopeless?

A.    At the end of the day he was advised of that, yes.

Q.    At an early stage of the proceedings he wasn’t advised of that, was he?

A.    No.  He was advised of that during the course of the trial before Mr Justice Stone.

Q.    Yes.  Let’s come to that in a second.  But at the stage of the proceedings when the case was being prepared by way of pleadings, discovering witness statements and all the rest of it, that was not part of the advice given to him, was it?

A.    I never told him that -- I never told him until we had got into the trial that the case was hopeless.

(Tr. p. 312A-E)

Q.    …  Surely you are saying, aren’t you, that with better luck and a different judge, you would’ve had a case that might well have resulted in a win for you.

A.    Well, it could’ve done.  If we’d got to the evidence, it could well have been different.

Q.    So it was by no means hopeless then?

A.    I don’t think anybody ever said that it was hopeless.  I think what was said was that it was difficult.

(Tr. p. 297I-L)

31.  Mr Smith also prayed in aid the attendance note of 29 March 1995 which was in these terms:

“…

We discussed exposure to costs.  He said that he had committed $250,000 to this case but would be reluctant to spend more although if spending more would make the difference between winning and losing, he would of course consider it.”

It was submitted that the italicized words were hardly consistent with Mr Erving having advised the client that the case was hopeless or with the defendants’ contention (and the judge’s finding) that the plaintiff was determined to have his day in court whatever the cost.  The judge was criticized for not addressing this note in his reasoning.

32.  Another major component of Mr Smith’s submissions was the manner in which Mr Erving handled the “drop hands” settlement offer made in February 1997.  As noted above, this was made on 4 February 1997.  The defendants’ solicitors estimated that their costs up to and including trial could be in the region of $1.4 million.  They proposed a “drop hands” settlement coupled with gagging conditions.  Mr Erving replied on 5 February 1997 to the effect that they had not been able to obtain instructions from the plaintiff who was travelling abroad, intimating that in any event, clause 2(b) which extended to the 2^nd defendant would not be acceptable.  This was followed by a letter sent 5 days later which read:

“…

Our client does not share your apparent view about his prospects of succeeding with this action, quite the contrary.  However, our client is quite prepared to consider any reasonable settlement proposal you may be instructed to make.

Our brief will be delivered on 17^th February so if costs are to be saved, settlement will have to be reached by the end of this week.

As for your client’s proposals, they are entirely unacceptable…”

33.  Mr Smith submitted that the strong language used was consistent with the plaintiff believing that he had a good case, that had the client been advised that the case was weak or hopeless and the client was continuing it for personal reasons, it was hardly the sort of letter to have been written to secure a settlement.

34.  Apart from these matters which formed the backbone of his appeal, Mr Smith also relied on a letter dated 26 April 1995 from Mr Erving to the plaintiff recommending that he seek counsel’s advice in order to give himself “the best chance of success”, instructions to Mr Allman-Brown dated 17 May 1995 which referred to the plaintiff’s “quite noble claim” and Mr Erving’s letter dated 12 June 1995 to Mr Allman-Brown agreeing with the plaintiff that exemplary and compensatory damages should be claimed in relation to the malicious prosecution complaint.

35.  Taking the attendance note of 29 March 1995 first, it was written in the early phase of Mr Erving’s engagement.  Whilst the defence had been filed, Mr Erving was still at the stage of reviewing documents produced in discovery.  Further, the plaintiff’s witness statement had not been finalised.  The judge made no finding as to whether or not Mr Erving had at that stage advised the plaintiff that his chances were slim.  It is I think clear from paragraph 57 of the judgment that the judge was proceeding on the basis that he might not have done so at that stage.  However, the judge considered that in the fullness of time, the counsel who came to represent the plaintiff made known the problems besetting the 1994 action and the plaintiff could not have been left in any doubt as to the difficulties of his case. 

36.  Certainly by May 1995, Mr Erving’s own thinking had been made known to the plaintiff through the instructions he sent to Mr Allman-Brown referred to in paragraph 11 above.  Then came Mr Allman-Brown’s advice which was rendered in May and in June 1995.  Having read the transcript of Mr Allman-Brown’s evidence, I have no difficulty in reaching the view that it was plainly open to the judge to have reached the conclusion that he did.  The following passages illustrate the point:

Q.    …  But Mr Allman-Brown, is there any -- it has been suggested to Mr Erving that Mr Delhaise left the conference or could have left the conference with the impression that he had a reasonable case on the advice that you gave.  Would you like to comment upon that evidence and that suggestion?

A.    Recalling my advice, the steps that I had taken to formulate that advice and the way that I conducted the conference by taking the lay client through each and every point raised in the defence, I cannot agree that he could have left the conference with such an opinion.

Q.    You say you took him through every point of the defence.

A.    That was the obvious document to take the client through since it raised all the points and obstacles which his case faced.

(Tr. p. 334G-L)

A.    … my evidence is that I did not give such advice; that I gave the contrary advice.

Q.    The contrary advice being what?

A.    That there was no way past the defence unless the lay client obtained the co-operation of his wife and her evidence to support the malice claim.

Q.    Yes.

A.    At the conference, he told me that that was not going to be obtainable.  Therefore, I said, ‘In my opinion, I do not see how you can defeat the defence.’

(Tr. p. 340G-J)

Q.    And I suggest that there was no advice whether from you or from anyone else, Mr Erving, in the course of that meeting which would have caused Mr Delhaise or which would -- there was no advice to the effect that his action was either doomed, or hopeless, or very unlikely to succeed.

A.    I reject that.  To the contrary, my advice was to that effect.

(Tr. p. 341J-L)   

37.  It was also Mr Allman-Brown’s evidence that whilst he had reinstated the claim for exemplary and aggravated damages under the malicious prosecution head under client’s instructions, he remained of the view that the claim could not succeed.  He had challenged the lay client i.e. the plaintiff to come up with some evidence, some particulars and he could not.  That also applied to the compensatory damages claim.  Certainly during Mr Allman-Brown’s involvement in the case, the plaintiff had not been able to supply any details of loss beyond what had already been recovered from SW.  His Note to Mr Erving dated 22 June 1995, a copy of which the plaintiff received, made that clear.  In Mr Allman-Brown’s view, the only hope for success was in the claim for false imprisonment which he had devised but his application in November 1995 to amend the pleading to introduce that claim was unsuccessful.  By this stage, the plaintiff could not have been left in any doubt as to the difficulties of his case.  It is to be noted that Mr Erving’s evidence (referred to in para 14 above) as to what happened shortly thereafter has not been challenged.

38.  Although Mr Remedios was not involved until after the “drop hands” settlement offer, by which time it might be said to be too late in the day for the plaintiff to have extricated himself from the 1994 action, given the evidence before the court, the judge was entitled to come to the view that Mr Remedios’s advice was as unequivocal as that of Mr Allman-Brown.

39.  As to Mr Erving’s handling of the settlement offer, Mr Erving’s explanation appears in the following passage:

Q.    Again, I suggest that at this stage, particularly since briefs haven’t yet been delivered, but would have to be delivered very soon on both sides, that this would have been the time to say to the client, ‘Look, your case is pretty bad, we’ve been advising you all along but now the crunch is here and you seriously have to consider whether to proceed or not’.  You’d agree with me that that’s what someone ought to do if that was the correct position so far as their own assessment of the case was concerned.

A.    Yes.

Q.    Yes.  But you didn’t do that, did you, Mr Erving?

A.    No.

Q.    No.  Why was that then?

A.    Because we had a trial date, he wanted the case into court, as I have said time and time again.  The details of that drop hands settlement was put to him and he rejected it, and he said he wanted to go to trial.

Q.    He also says that his decision to do that was based on the fact that you, yourself seemed to think that he had a good case at the time.

A.    No, as I said in chief, he took significant encouragement from the fact that Barlows were suggesting a compromise, a settlement, and he was encouraged by that to continue.  But I don’t -- you see, I don’t think he would have needed that encouragement anyway.  As I say, he had a trial date, he’d got himself geared up for it and he was going to have his day in court.

(Tr. pp. 292L - 293A)

The judge cannot be criticised for accepting that explanation.

40.  I now turn to Mr Erving’s letter of 8 April 1997.  The context in which the letter was written has to be borne in mind.  As the judge noted, Stone J’s robust treatment of his case was an unusual approach and took everyone by surprise.  Mr Erving’s letter could be read as saying no more than that before another judge, the matter would have progressed to the evidence stage and things might have turned out differently.  I do not read that as necessarily being inconsistent with the view that the case stood very little chance of success.

41.  The hurdle facing Mr Smith in this appeal is a high one.  This court is being invited to disturb a finding of primary fact made by the trial judge.  It should only do so if it were satisfied that the trial judge’s conclusion of fact was plainly wrong.  See Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336 at paragraph 42.  It has not been made out that incontrovertible evidence existed which the judge had overlooked or misapprehended.  In my view, whether taken singly or collectively, the documents and passages in the transcript relied on by Mr Smith do not demonstrate that the judge’s conclusion was plainly wrong.  I would therefore dismiss this appeal.

42.  I would also make an order nisi that the costs of this appeal be to the defendants.

Hon Yuen JA:

43.  I agree.

Hon Burrell J:

44.  I agree.