ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2021] HKCFI 2436

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.  This is the application (“Application”)  of the defendant (“Vivien”)  by her summons dated 4 September 2020 (“Summons”)  against the respondents, Messrs Wong Shum & Co (“WSC”)  for the provision of certain documents and information said to be relevant to the issues in this action.

2.  The present action is a probate action in respect of the estate of Madam Yang Foo Oi (“Madam Yang”)  commenced by the plaintiff (“Angela”), Madam Yang’s elder daughter, to propound Madam Yang’s will dated 15 February 2008 (“2008 Will”). Vivien was her younger daughter.  The 2008 Will left all assets of Madam Yang to Angela and appointed her the executor.

3.  In summary, Vivien seeks the following orders against WSC, the firm that prepared the 2008 Will:

(1)  Discovery of documents of various description concerning: (i) the preparation of the 2008 Will; (ii)  the preparation of a statutory declaration made by Mr Wong Tak Shing (“Mr Wong”)  (the principal of WSC, the solicitor who prepared and attested to the 2008 Will)  dated 19 November 2014 (“SD”)  in relation to the preparation of the 2008 Will: Summons §1.

(2)  An order that WSC provide certain information by way of an affirmation relating to the preparation of the 2008 Will and also the SD: Summons §3 and Annex.

4.  Angela submits that this an extraordinary application. Vivien made this Application 6 weeks after Angela had filed her Statement of Claim on 24 July 2020 and since then, Vivien has seen fit to insist that the Application be determined (and any order made be complied with)  before she files her Defence.  In effect, Vivien is seeking extensive discovery and interrogatories before she has even filed her Defence so that the issues in this action have not even been defined.  The Application is also made against a non-party, when it is plain that the court has no jurisdiction to order interrogatories against a non-party.

5.  In any event, Angela further submits that Vivien’s Application is entirely meritless.  In summary, Angela relies on the following grounds to oppose the Summons:

(1)  Ground 1: The Application is plainly premature in that there is no justification for Vivien to make this Application at the pre-pleading stage.  See Section D below.  The first and key issue in this case is why should Vivien be entitled to the exceptional course of discovery and/or interrogatories against a non-party before she has even filed her Defence.

(2)  Ground 2: Most of the documents and information sought are covered by legal professional privilege.  See Section E below.

(3)  Ground 3: The court has no jurisdiction to order what are in essence interrogatories against a non-party, whether under the Larke v Nugus practice or the “supervisory jurisdiction”.  This means that §3 of the Summons is wholly without basis.  See Section F below.

(4)  Ground 4: There are miscellaneous objections to the individual requests arising from the requirements under each of the procedural bases relied on.  See Section G below.

6.  By a subsequent Summons dated 18 January 2021 (“Amendment Summons”), Vivien seeks to amend the original summons by deleting some of the requests therein.  Such an amendment is unnecessary if Vivien is simply abandoning some requests, and does not change the substance of the remainder of the requests not abandoned.

B.  BACKGROUND

B1.  Procedural history

7.  On 18 February 2020, Madam Yang passed away.

8.  Angela issued the present probate action on 20 March 2020.  The Writ of Summons was amended on 6 May 2020.

9.  In her Affirmation of Testamentary Scripts dated 3 June 2020, Vivien confirmed that she has knowledge of the 2008 Will.  Vivien nevertheless asserted that the true and last will of Madam Yang is an earlier will dated 27 October 2004.

10.  In the Statement of Claim filed on 24 July 2020, Angela pleads that the 2008 Will was duly executed in accordance with the Wills Ordinance and, to Angela’s knowledge, remains the Deceased’s true last will.

11.  Meanwhile, Vivien has since late February 2020 sent a series of letters to WSC demanding them to answer detailed questions about the preparation of the 2008 Will.  It is sufficient to note that:

(1)  In WSC’s letters dated 31 July 2020 and 5 August 2020, WSC explained that they had destroyed the file relating to the 2008 Will in around June 2015, and that this was done in the normal process of disposal of old files exceeding 7 years.  WSC also confirmed that this was done at their own initiative and that they had not informed anyone in doing so.  Angela has also confirmed that she knew nothing about this.

(2)  By WSC’s letters dated 7 and 10 August 2020, WSC had, without the consent of Angela as the executor, disclosed a copy of the SD to Vivien.  The SD contains Mr Wong’s account of the circumstances of his preparation and the execution of the 2008 Will, together with exhibits of various contemporaneous documents.

(3)  As the SD was disclosed by WSC without Angela’s consent, Angela has made clear that she, as executor, has not waived and continues to maintain privilege in the SD.

12.  Despite this, Vivien took out the present Summons on 4 September 2020.  By §4 of the Summons, Vivien asks for an extension of time for her to file and serve her Defence and Counterclaim until 28 days after WSC’s compliance with the order to be made.

B2.  Factual background: relationship between Madam Yang and Vivien

13.  In the Skeleton Submissions of Angela lodged for the hearing, the court was presented with an overview of the relationship between Madam Yang and Vivien, which is set out below so as to give context to the 2008 Will.

14.  There is a long history of acrimony between Madam Yang and Angela on one side, and Vivien on the other side.  Many of these matters have already been canvassed in the two Judgments by Anthony Chan J in HCA 1739/2010 (“1739 Action”)  respectively dated 19 November 2016 (“1739 Trial Judgment”)  and 20 January 2020 (“1739 Locus Judgment”).

15.  In short, since 2003, there had been a gradual deterioration of the relationship between Madam Yang and Vivien due to a number of incidents and events in the family, resulting eventually in two hostile litigations between mother and daughter.

16.  The evidence currently before the court also shows that the contents of the 2008 Will are consistent with various steps taken by Madam Yang after 2008 to ensure that her entire estate would be given to Angela, many of which are not and cannot be challenged by Vivien.  Angela submits that Madam Yang’s execution of the 2008 Will was in no way out of character or worthy of suspicion.

17.  Madam Yang was the wife of the late Dr Chen until their divorce on 21 April 2011.  Dr Chen was the founder of the Nan Fung group of companies (“Nan Fung”).

18.  One significant event leading up to the breaking out of the family dispute was the discovery of the “CHL exercise”:

(1)  One evening in January 2003, Dr Chen told Madam Yang that he recalled having transferred approximately HK$18 billion worth of assets to Vivien but could not recall the details. He asked Madam Yang to look into the matter.  Madam Yang suggested seeking Angela’s help and Dr Chen agreed.  Madam Yang then called Angela in the USA and asked Angela to return to Hong Kong immediately.

(2)  As it transpired, substantial Hong Kong assets beneficially owned by Dr Chen had been transferred to Chen’s Holding Ltd (“CHL”), the sole shareholder of which was Vivien.  On the evidence, Anthony Chan J found that the CHL exercise was a sham to avoid potential estate duty, because Dr Chen never really relinquished his control and beneficial ownership of the CHL assets to Vivien.

(3)  After Madam Yang and Angela found out about the CHL exercise in January 2003, family discord followed.

19.  After rounds of discussions in 2003 and 2004, Dr Chen eventually decided to distribute some of his assets to Madam Yang, Angela and Vivien.  The method of distribution was that Dr Chen would distribute to Angela and Vivien each HK$4.5 billion worth of assets, out of which each of them was to transfer HK$1.5 billion worth of assets to their mother Madam Yang.  Vivien and Madam Yang in turn entered into certain arrangements as to how Vivien would perform her obligation to transfer assets to Madam Yang.

20.  Madam Yang subsequently alleged that Vivien had taken unfair advantage of her in the making of these arrangements.  By the 1739 Action, Madam Yang claimed inter alia that Vivien had acted in breach of fiduciary duties, breach of duty of disclosure in family arrangements and had exercised undue influence on her.  Anthony Chan J upheld Madam Yang’s claims in the 1739 Trial Judgment.

21.  In July 2008, Angela made an application to the court for Dr Chen to be declared a mentally incapacitated person and for the appointment of a committee to take care of his affairs.  The family was fractured into two sides, with Madam Yang and Angela taking one side, and Vivien taking the other.  Mr Man Mo Leung (“Mr Man”)  eventually became the committee of Dr Chen’s estate.

22.  Timford Resources Limited (“Timford”)  was a company which was incorporated for Madam Yang to receive the cash to be distributed to her by Vivien (which was a sum of HK$300 million).  Vivien was the sole shareholder of Timford.  In December 2009, Madam Yang gave a direction to Vivien for the transfer of the entire shareholding of Timford to her.  Vivien refused to comply.  Madam Yang’s claim in the 1739 Action for the beneficial ownership of the shares in Timford (albeit as an alternative claim)  was also upheld by Anthony Chan J.

23.  In December 2011, Madam Yang was served with a summons by Mr Man seeking disclosure of the evidence of Madam Yang and Angela filed in the divorce proceedings between Dr Chen and Madam Yang for the purpose of an intended application of a statutory will to remove Angela as a beneficiary of Dr Chen’s estate.  In February 2012, Madam Yang made a Statutory Declaration expressing strong objection to Mr Man's application and accused Mr Man of being under the influence of Vivien.

24.  On 12 December 2012, Madam Yang executed a Gift Declaration whereby she (1)  referred to her having made the 2008 Will, (2) confirmed her intention not to make any gift to Vivien and (3) declared her intention to achieve the early completion of her gift to Angela under the 2008 Will by way of a Deed of Gift (but that the 2008 Will should remain valid).  Madam Yang also executed a Deed of Gift to the said effect.  Madam Yang’s execution of these documents was witnessed by her solicitor Mr David Wong and a psychiatrist Dr Wong Yee Him.

25.  After the 1739 Trial Judgment was handed down, Vivien relied on the Deed of Gift to argue that it had the effect of transferring Madam Yang’s claims against Vivien to Angela, such that Madam Yang had no locus or ceased to have locus to pursue the claims, and sought to set aside the 1739 Judgment on that basis.  That attempt was rejected by Anthony Chan J in the 1739 Locus Judgment.

26.  During the second trial, Vivien relied heavily on the Deed of Gift as a valid and effective document and the Gift Declaration as setting out Madam Yang’s intention or purpose in making the gift.  Anthony Chan J did find that the purpose of the gift was to accelerate the vesting of Madam Yang’s assets in Angela which were intended to be gifted to her under the 2008 Will, and that this was done to avoid disputes arising from Vivien’s anticipated challenge to the 2008 Will.  As the court observed at §§74-76 of the1739 Locus Judgment:

“74. Vivien’s case is based heavily on the terms of the Documents. It was provided in the D/G that, with the exception of the HK$200m, ‘all and any’ of Yang’s properties were immediately gifted to Angela. In the G/D, it was stated that the gift was ‘regardless of [the properties’] value’. Further, the purpose of the gift was to accelerate the bequest to Angela as the sole beneficiary under the 2008 Will. Under that Will, everything was bequested to Angela. Apart from the specific exclusion of the HK$200m, nothing was excluded from the gift. Therefore, it is contended that everything meant everything, which included the Claims. These are forceful submissions.

75. I certainly agree that the purpose of the Documents was to accelerate the vesting of Yang’s properties in Angela (save for the money reserved for herself), which were intended to be gifted to her daughter under the 2008 Will. However, that was not the entirety of the purpose, nor does it provide in full the context of the exercise.

76.  The reason why the Gift Documents came to be made was actually stated in the G/D: ‘to avoid unnecessary disputes in the future’.  It is reasonably clear from the reference to Yang’s stated determination not make any gift to Vivien that it was envisaged by her that Vivien might dispute the 2008 Will under which the entirety of her estate would go to Angela.  Indeed, Vivien was probably the only person who might challenge that Will.  The acceleration of the gift under the 2008 Will fortifies the view that the disputes sought to be avoided were the potential disputes over that Will.” 

27.  Mr David Wong also gave evidence in court that Madam Yang told him she wanted to give all her things (“所有嘢”)  to Angela.  In particular, during his exchange with Madam Yang on 4 December 2012, where no one else was present, Mr David Wong pointed out to Madam Yang that Angela would receive all of her assets under the 2008 Will and asked her why, despite having made her 2008 Will, she wanted to make a gift now to Angela.  In response, Madam Yang said that she did not want Angela to have trouble (“麻煩”)  in the future.  When asked to clarify, Madam Yang said that by trouble, she meant litigation (“打官司”).

28.  Anthony Chan J observed that there was no evidence in any shape or form that the validity of the Gift Declaration and the Deed of Gift were tainted.  At §232 of the 1739 Locus Judgment, Anthony Chan J said this: “I should mention in particular that there is no evidence in any shape of form that the validity of the Gift Documents were tainted.  Those documents were prepared with the assistance of solicitors and a doctor.  [David] Wong’s evidence that he conducted the relevant interviews with Yang in the absence of Angela was not challenged.”

C.  THE NATURE OF VIVIEN’S APPLICATION

29.  As noted above, Vivien’s Application in effect seeks specific discovery of documents and disclosure of information against a non-party before pleadings.

30.  In particular, as to the request for information, it can be seen from the Annex to the Summons that the information sought relates to the preparation of the 2008 Will by WSC, and many of the requests are in effect questions seeking to interrogate or cross-examine WSC on the SD.  Indeed, the information sought are described as “missing information” which have been “omitted from” WSC’s SD: Summons §3.

31.  Yet there is no jurisdiction to order interrogatories against a non-party, or the witness of a party: see Hong Kong Civil Procedure 2021 Vol 1, Practice Note 26/4/2.  There is indeed no attempt to invoke Order 26 of the Rules of the High Court (“RHC”).

32.  I agree that it is therefore important to scrutinise the precise jurisdictional and procedural bases relied on by Vivien for taking the extraordinary step of applying for the provision of documents and in effect interrogatories against a non-party before pleadings are filed.

33.  It appears that Vivien is basing her Application on the following:

(1)  The court’s jurisdiction to order discovery of documents against non-parties under section 42 of the High Court Ordinance, Cap 4 (“HCO”)  and Order 24, rule 7A of the RHC (as indicated in the margin note of the Summons).

(2)  The practice based on Larke v Nugus [2000] WTLR 1033 where the preparer of a will could provide a statement of his intended evidence on the circumstances of the preparation and execution of the will.

(3)  The court’s supervisory jurisdiction over its officers, and to make a so-called “compensatory order” in circumstances where, according to Vivien, WSC has breached their duties by destroying the will file.

(4)  The court’s jurisdiction to require its own witness to provide information in its inquisitorial role in a probate action.

34.  Each of these bases will be further discussed below in the context of each of Angela’s grounds of objection identified at paragraph 5 above.

D.  GROUND 1: PREMATURITY

35.  The starting point must be that the court generally will not order specific discovery or interrogatories before close of pleadings:

(1)  It is trite that pleadings are what define the issues in an action.  Hence, it is said that the court’s practice is to refuse discovery before the close of pleadings save in exceptional circumstances: Hong Kong Civil Procedure 2021 Practice Note 24/3/5; Bank of India v Gobindram Naraindas Sadhwani [1994] 2 HKLR 69, 71 (Kempster J, as he then was).  This stands to reason - at the very least a party should plead her case so that the court knows what issues are joined, before the court can sensibly be required to adjudicate on interlocutory applications.  Otherwise, there is a real risk that the discovery application would be unfocused on the disputed issues and lead to wastage of time and costs.

(2)  In the context of specific discovery against a non-party:

(a)  Order 24, rule 7A(3)(b)  RHC provides that in applications for pre-action discovery and third-party discovery, the applicant should file an affidavit to demonstrate that the documents are relevant “if practicable by reference to any pleading served or intended to be served”.  This clearly envisages that even in such extraordinary applications for discovery, the application should normally be made only after the applicant has pleaded its case.

(b)  It is for the party applying to show that the order is necessary either for disposing fairly of the cause or matter or for saving costs: see Order 24, rule 8(2); Hong Kong Civil Procedure 2021 Practice Note 24/8/1A.  As the wording of Order 24, rule 8(1)  suggests, the inquiry involves whether discovery is necessary at that stage of the cause or matter, and if the court is not satisfied as to necessity, it may dismiss or adjourn the application.

(3)  Similarly, interrogatories are rarely ordered before defence, and would usually not be ordered until after witness statements: see Hong Kong Civil Procedure 2021, Practice Note 26/4/3.

36.  Vivien appears to try to justify making the Application at this particular juncture, ie before she files her defence, by relying on the practice based on Larke v Nugus[2000] WTLR 1033.  It is said that the documents and information would “assist Vivien in streamlining and refining her case” on her challenge of the 2008 Will.

37.  As submitted by Angela, it is clear that these matters do not provide any justification at all, let alone amount to exceptional circumstances, for Vivien’s application to be acceded to at this stage.

38.  First, it is plain that the general rule in normal civil actions is that a party is not entitled to discovery before filing a defence.  I agree there is no reason in principle or authority for probate actions to adopt a different, or opposite, rule.  The mere fact that there is an inquisitorial element in probate actions does not change the fundamental procedure that the parties will still have to properly plead out their case before engaging in discovery.  The rules of court made specific provisions for a probate action under Order 76, but there are no specific provisions for early discovery.  The position on timing must be governed by the general rules under Order 18 as to pleadings and Order 24 as to discovery.

39.  Second, it is plain that the practice under Larke v Nugus does not have the force of law and cannot be the basis of an early discovery application:

(1)  This practice is, at most, merely that where a serious dispute arises as to the validity of a will beyond the mere entering of a caveat, and the knowledge of the solicitor who prepared the will makes him a material witness, he should make available a statement of his evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will: Williams, Mortimer & Sunnucks: Executors, Administrators & Probate (21^st edn, 2018), §29-14.

(2)  The practice originated from a recommendation by the Law Society in England & Wales: see Larke v Nugus, 1036B-F.  It is thus a matter of professional conduct for solicitors who are will preparers.

(3)  It has also been described in subsequent cases as being a matter of “best practice” for will preparers in general: Catling v Catling [2014] WTLR 955 at §42.

(4)  In Larke v Nugus, Brandon LJ examined whether there was any underlying rationale for such a practice, and suggested that the principle is that when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and one such measure that can be taken is the early disclosure of the will preparer’s evidence: see 1044C-F.

(5)  In that case, the relevant will was found to be valid, but the English Court of Appeal refused to order those challenging the will to pay the costs of the challenge on the ground that the will preparer refused to make available at an early stage information which could have prevented a full trial.  The case therefore suggests that a failure to follow the practice may lead to adverse consequences on costs for an executor; it is certainly not an authority for compulsory discovery or interrogatories before pleadings.

(6)  Significantly, the latest version of the Practice Note on “Disputed wills: Guide for practitioners” published by the Law Society of England & Wales on 20 December 2019 makes clear that a solicitor is under no duty to comply with a request for a Larke v Nugus statement.

(7)  Indeed, in the recent English case of Gardiner v Tabet[2020] EWHC 1471 (Ch), Master Clark of the probate court confirmed that the guidance in Larke v Nugus is not enforceable by court by compelling discovery or information (at §34):

“… the guidance in Larke v Nugus is intended to deal with the practical problem that a person seeking to challenge a will may have no direct knowledge of the circumstances of its preparation and execution…The information and documents are to be provided before the claim is commenced. If it [is] not provided, there may be costs consequences. The obligation is a matter of professional conduct for solicitors, and ‘best practice’ for lay persons; it is not enforceable by an order of the court.” (emphasis added)

(8)  Indeed, no authority has been cited by the parties to the effect that a party can apply to the court for an order compelling a will preparer to make a statement of his evidence prior to pleadings.

(9)  It should further be noted that Vivien does not say in the present case that the early disclosure sought would help to avoid litigation - quite the contrary, it is plain that she will fight the probate action to the very end regardless of whether she would obtain early disclosure.  The rationale of Larke v Nugus that the executor should avoid costly litigation thus in any event does not apply.

40.  Third, the court must not lose sight of the fact that Mr Wong, the will preparer, has actually made available to Vivien a statement of his evidence in the form of the SD (despite that this was allegedly done without the consent of Angela, the executor under the 2008 Will).

41.  In particular, Mr Wong gave evidence in the SD:

(1)  That he met Madam Yang on a previous occasion on 2 December 2007 in order to take instructions from her concerning Dr Chen’s MIP proceedings.  He raised the matter of Madam Yang making a will as a side issue.  (SD §§2-10)

(2)  That Mr Wong had 2 telephone conversations with Angela about the making of a new will by Madam Yang (SD §§11-18).  Mr Wong’s contemporaneous handwritten notes of these conversations have been exhibited.

(3)  As to the process of him drafting the 2008 Will based on instructions received through Angela (SD §§19-24).

(4)  As to how the 2008 Will was executed by Madam Yang on 15 February 2008.  He explained in detail what happened on the day of execution, and the process of execution at Madam Yang’s residence, including the medical examination by Dr Ben Cheung (“Dr Cheung”), his explanation of the contents of the will to Madam Yang, and his discussion with Madam Yang as to why Vivien was excluded from the 2008 Will (SD §§25-28).  Contemporaneous notes kept by Mr Wong had been exhibited.

42.  This is on any view a detailed and proper account of Mr Wong’s evidence as to execution of the 2008 Will and the circumstances surrounding the same.  In other words, the Larke v Nugus practice has been complied with.

43.  What the Larke v Nugus practice requires is for the will preparer to give a statement of his intended evidence, so as to give the interested parties in a probate action some idea as to the circumstances of the execution of the will.  It is certainly not intended to require the will preparer to be cross-examined, before pleadings, as to those circumstances, or to allow a party to investigate alleged “evidential lacunae”, at an early stage.  No authority whatsoever has been cited to support such a bold proposition.

44.  I agree it is plain that the documents and information sought in the Summons went far beyond what is required under the Larke v Nugus practice.  In particular:

(1)  As to Vivien’s requests for documents, it is clear that Vivien is trying to find documents to challenge the account given by Mr Wong:

(a)  §1(1)  of the Summons simply asks for the original or different versions of the same copy wills already exhibited to the SD.

(b)  §1(2)  asks for documents with similar reference number that might exist “insofar as they relate to” the preparation of the will.

(c)  §1(3)  just asks for all notes relating to the preparation of the will, on top of the contemporaneous notes already exhibited.

(d)  §1(4)  asks for “written instructions” relating to the preparation of the will, when the SD has already made clear that most of the instructions were given through Angela orally.

(e)  §1(5)  even asks for correspondence by Mr Wong with other persons and firms which relate to the preparation of the will and also the preparation of the SD.  The existence of these correspondence is mostly based on a speculation that these persons were involved because Mr Wong had copied them in the recent correspondence with Vivien’s solicitors.

(2)  Similarly, the requests for information in the Annex are attempts to test Mr Wong’s account in the SD, to see whether there were other communications with Angela (§§(5), (8), (10)), and whether there were other persons involved in the will preparation and execution process (§§(9), (11), (12), (13), (14), (15)).

45.  Fourth, regardless of Vivien’s allegations of “evidential lacunae” in the SD, it is plain that Vivien has no difficulty in pleading a defence setting out her challenge to the 2008 Will.  Vivien has now already indicated in affidavit evidence that she will rely on the grounds of lack of knowledge and approval, the existence of alleged suspicious circumstances and undue influence by Angela.  Even Vivien herself says that the requested information and documents would only assist her in “streamlining and refining her case”.  There is markedly no suggestion that she will be unable to plead her case without the documents and information sought.  Indeed, it is plain from a scrutiny of the individual requests that the requests do not go anywhere to the material facts regarding Vivien’s intended grounds of challenge, but are matters of evidence and cross-examination.

46.  This comes nowhere near any exceptional circumstance or showing necessity to justify an order of discovery or interrogatories at this stage.

47.  Fifth, and for the sake of completeness, Vivien’s novel argument based on the court’s supervisory jurisdiction over its officers to make a so-called “compensatory order” and its inquisitorial role in a probate action (the problems of which will be addressed in Sections F2 & F3 below)  does not provide any justification for early disclosure.  In any event, even on Vivien’s own case, an order under this route is to “compensate” the effect of the will file having been destroyed by WSC.  That does not explain why the order must be made now, or why Vivien cannot file her defence before the information and documents sought are made available in the normal course of discovery.

48.  I am not impressed by Vivien’s further submission that there is an urgent need to preserve possible electronic copies of documents in the will file.  Surely, if there is a detailed scheme to destroy evidence, it would have been completely carried out already.

49.  In sum, none of the purported bases advanced by Vivien justifies the making of a discovery application at the pre-pleading stage.  For this reason alone, the entire Application ought to be dismissed.

E.  GROUND 2: PRIVILEGE

E1.  Applicable legal principles

E1(a).  The starting point: Legal professional privilege (“LPP”)

50.  As submitted by Angela, there are 2 categories of LPP:

(1)  Legal advice privilege attaches to communications between a client and his lawyer, where the lawyer is acting in the course of his professional relationship and within the scope of the lawyer’s professional duties, under conditions of confidentiality, and for the purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant context: Passmore: Privilege (4^th edn, 2020), §2-003.

(2)  Litigation privilege attaches to confidential communications between a client or his lawyer and a third party for the dominant purpose of use in litigation that, at the time the communication is made, is either proceeding or pending, or reasonably anticipated or in contemplation, and to which the client is or reasonably anticipates becoming a party, for the purpose of either (1)  enabling legal advice to be sought or given or (2)  seeking or obtaining evidence or information to be used in or in connection with the litigation concerned: Passmore, §3-006.

51.  In Hong Kong, LPP is a fundamental right entrenched by Article 35 of the Basic Law.  As a fundamental right, LPP does not involve a balancing of interests: Secretary for Justice v Florence Tsang Chiu Wing (2014)  17 HKCFAR 739, §§28-29.

52.  LPP survives the death of the client.  Once established, it remains in existence unless and until it is waived.  Upon the death of a client, the right to waive the privilege passes to the successor in title: see Addlesee v Dentons Europe LLP[2020] Ch 243 at §§33-34 (Lewison LJ).

53.  Vivien asserts that LPP does not apply in a case where the will is contested and thus there can be no claim to LPP in respect of a Larke v Nugus statement.  To support this proposition, she cites Russell v Jackson (1851)  9 Hare 387; 68 ER 558; the Canadian case of Geffen v Goodman Estate[1991] 2 SCR 353 and R (Prudential plc)  v Special Commissioner of Income Tax[2013] 2 AC 185 at §17.

54.  However, on true analysis, I agree the authorities only establish that there can be no claim of privilege in a situation of joint or common interest, and the case of a disputed will does not fall within such an exception.  The Canadian authorities do not represent the law in England or in Hong Kong.  It is certainly not the law of Hong Kong that once there is a contest of a will, all contestants are entitled to open up the LPP of the testatrix.

E1(b).  No joint interest in the case of a contested will

55.  It is a well-established exception to LPP that there can be no claim to privilege amongst persons who enjoy some form of joint or common interest in the subject matter of a communication at the time it comes into existence: see Passmore, §§6-001 to 6-006.  For these purposes, a joint interest is usually one in which two or more parties share in (and therefore required legal advice on)  the same right or interest, such as a joined or shared interest in the same property rights: Passmore, §6 005.

56.  An obvious example of joint interest is trustee and beneficiaries: see Passmore §6-022.  Joint interest also exists amongst undisputed beneficiaries: see Passmore, §6-127.

57.  The principle dealt with in Russell v Jackson, supra is based on the existence of a joint interest amongst beneficiaries.  However, the case is not concerned with a situation of a disputed will with claims by beneficiaries under competing wills.  Rather, all parties were claiming under the same will:

(1)  In that case, the testator made a will leaving the residue of his estate to the defendant executors.  The next of kin of the testator alleges that this gift of the residuary estate was made to the executors upon a secret trust for founding a socialist school in Birmingham and sought an order to enforce this: 387.

(2)  The solicitor preparing the will gave evidence of the testator’s instructions concerning such intention, and his communications to him of his concern that this might be illegal: 388-389.  The question in that case was whether such evidence is admissible because they were subject to privilege: 390.

(3)  It was in this context that Sir Turner VC held that the privilege did not belong to the executors as against the next of kin in this case, apparently taking the view that both the next of kin and the executors were claiming under the testator: 393.  This is correct - the next of kin was not attacking the will, they were in fact relying on the disposition of the residuary estate to the executors under the will, but contended that such a gift contained the additional feature of a secret trust.  Thus, both parties, while competing, were claiming under the same will.  It is readily apparent why they would be under a joint interest in that case.

58.  Thus understood, it is plain that Russell v Jackson does not apply to the present case or the general situation of a contested will.  Under a contested will situation, the beneficiaries under the previous will and the beneficiaries under the present will cannot in any sense be said to be claiming under a joint interest.

59.  Vivien also appears to suggest that the Prudential case supports the proposition that there is a general exception to LPP in the case of a contested will.  However, Lord Neuberger’s statement in Prudential at §17 is only that there is a “miscellaneous exceptions” to LPP “in a probate case where the validity of the will is contested”.  It is not at all clear what exception is being referred to.  The case itself is not concerned with LPP in a disputed will context and this highly-generalised statement cannot be taken literally in the way suggested by Vivien.

60.  More importantly, Vivien has not been able to cite any other English authority or textbook supporting such a sweeping exception.  I agree it is more likely that Lord Neuberger was referring to the rule in Re Fuld as explained in Section E1(d)  below, which is a recognised exception to LPP.

E1(c).  The practice under the case of Larke v Nugus

61.  Vivien appears to suggest that Larke v Nugus is an example of the lack of privilege in a contested will situation.  However, the authorities concerning Larke v Nugus in fact suggests that privilege continued to exist in a contested will context.

62.  There is nothing in the case of Larke v Nugus itself which suggests that it was intended to create an exception to LPP:

(1)  In fact, Brandon LJ merely quoted at 1036B-E from the Law Society’s then in place guidance note in order to explain the source of the practice, and they were in these very different terms:

“Privilege cannot be claimed by one person claiming under a deceased testator's will as against another person having a similar claim in respect of matters communicated by the deceased to the solicitor during the lifetime of the deceased.” (emphasis added)

(2)  Here, Vivien has no claim under the 2008 Will as she is not a beneficiary and has no similar interest for the communications relating to the 2008 Will.

(3)  Rather, as can be seen from the discussion at paragraph 39 above, Larke v Nugus is a matter of best practice which does not have the force of law and cannot be enforced in the courts.  It is difficult to see how a matter of best practice which is not enforceable in the courts can have the effect of abridging the fundamental constitutional right in LPP in any way.

(4)  Further, the practice in Larke v Nugus has been said to be based on an executor’s duty to avoid costly litigation concerning the will: see Brandon LJ at 1044C-F.  A failure to comply with this duty may have adverse costs consequences for the executor.  There, the executor refused to provide information relating to the preparation of the will at an early stage and despite having succeeded in proving the will, it was held that the other party was entitled to insist upon the matter being tried such that in the end no order as to costs was made: 1035G, 1044H-1045D.

(5)  But this rationale can only apply to a will preparer who is also the executor.  This was the case in Larke v Nugus itself, but does not apply in the present case.  In other words, Mr Wong, not being the executor, can have no duty to avoid costly litigation in respect of the 2008 Will.

(6)  An executor who is also the will preparer will be in the position to waive any LPP which would normally attach to documents and information such as the instructions given by his client such that if he chooses to give a Larke v Nugus statement, the LPP would in turn be waived.  Mr Wong is not in a position to waive LPP.

(7)  As such, given that the court in Larke v Nugus was not concerned with any claim to LPP, I agree it is highly unlikely that the court would have intended to somehow compel the will preparer (who is not an executor and has no duty or right to waive LPP for the testatrix)  to waive LPP.

(8)  Indeed, once it is clear that the underlying rationale is a duty to avoid costly litigation, it is plain that this consideration cannot possibly abridge or outweigh the fundamental constitutional right of LPP, which is not subject to weighing of other competing interests.  A failure to comply with such a duty, as shown in Larke v Nugus, may have adverse costs consequence for the executor in the probate litigation.  There is certainly no reason to enforce this duty or practice by additionally requiring the waiver of LPP.

63.  That LPP remains intact and not affected by Larke v Nugus is supported by the following passage from Halsbury’s Law of England (5^th edn)  Vol 103 (2016)at §882:

“Difficulties can arise in a probate claim as to the evidence of a testator’s advisers, especially solicitors with whom there was a privileged relationship during his lifetime. The death of a client does not end the privilege, which can be claimed by successors in title …

A solicitor who is not a party to probate proceedings cannot be required to answer requests for information, but he can be ordered by the court to disclose documents, and he can be summoned to give evidence or produce documents. If there is any claim to privilege for his potential evidence he should refuse disclosure to anyone until compelled upon by witness summons to answer questions after argument on the claim to privilege. Subject to this qualification a solicitor should if there is a genuine dispute, make available a statement of his evidence about the execution of the will and the circumstances surrounding it to any person who asks him for such a statement, whether or not the solicitor is acting for persons propounding any will of the testator. A failure to do so which leads to unnecessary litigation may mean that those challenging the will are not ordered to pay the costs of the challenge even though the will is found to be valid.” (emphasis added)

64.  In other words, in the view of Halsbury, it is only if there is no question of privilege that the solicitors should provide a Larke v Nugus statement, and the failure to do so would only have consequences in the issue of costs.

65.  In the local context, §8.01 of the Hong Kong Solicitors’ Guide to Professional Conduct (3^rd edn, 2013) published by the Law Society of Hong Kong also gives the advice against a solicitor disclosing information about a will he assisted in preparing without the consent of the executors:

“8.01. Duty of confidentiality

A solicitor has a legal and professional duty to his client to hold in strict confidence all information concerning the business and affairs of his client acquired in the course of the professional relationship, and must not divulge such information unless disclosure is expressly or impliedly authorized by the client or required by law or unless the client has expressly or impliedly waived the duty.

Commentary

…

12. The duty to keep confidential a client’s affairs continues after the client dies and the right to permit disclosure or withhold it passes to the personal representatives of the client.

13. The contents of a will prepared by a solicitor should not be disclosed before probate is granted, except to or with the consent of the executors. …” (emphasis added)

66.  It is plain that the above views are premised on the continued existence of LPP in the situation where the will is disputed.  If there had been a general exception to LPP that whenever someone disputes the will, she would automatically become a potential beneficiary under either an earlier will or intestacy so as to enjoy some form of “joint privilege”, then there could never have been any concern regarding LPP.

E1(d).  The rule in Re Fuld

67.  The contention that there is a general exception to LPP in a contested will case is also inconsistent with the existence of a well-established but more limited exception to LPP, arising from the case in Re Fuld (No 2) [1965] P 405.

68.  Under the rule in Re Fuld, the court may require an attesting witness to produce statements made by him dealing with the question of attestation and execution notwithstanding their general privileged nature: 409G-411A (Scarman J).  The precise scope of the rule is subject to a detailed examination by Lam J (as Lam PJ then was)  in Chinachem Charitable Foundation Ltd v Chan Chun Chuen[2009] 2 HKC 365.

69.  In Chinachem, the defendant made an application for specific discovery in respect of a number of categories of documents relating to the making of witness statements by the attesting witnesses of the disputed will made for the purposes of the probate action.  It was common ground that the documents are covered by litigation privilege, and arguments revolved around the scope of the rule in Re Fuld.

70.  Lam J held:

(1)  The rule is applicable only to evidence of the attesting witness on the question of attestation and execution.  The fact that the witness is an attesting witness (and as such a witness of the court)  does not remove the privilege attaching to all his communications with the solicitor of a party.  The protection is only removed in respect of statement of attestation and execution.  (§§10-11)

(2)  Whilst an attesting witness is a witness of the court on other relevant issues like testamentary capacity and knowledge and approval, without more, that does not lead to the production of documents which might be protected by privilege.  Communication between a solicitor with an attesting witness for the purposes of litigation is privileged except in so far as the statement contained evidence of that witness on attestation and execution.  (§§12-15)

71.  Thus, in respect of the application in Chinachem:

(1)  The witness statements made by the attesting witness for the executor proving the will (items 1 & 2)  were voluntarily disclosed.  (§2)

(2)  For the drafts of such witness statements (items 3 & 4)  and attendance notes (item 5), the court considered that they may or may not contain an accurate record of the evidence of the attesting witness on attestation and execution.  He therefore directed a further affidavit to explain this.  (§§16-20)

(3)  The court rejected the discovery requests for correspondence relating to the preparation of those witness statements (item 6)  or relating to the circumstances in which the plaintiff obtained the will, as they do not contain evidence of the attesting witness (item 7).  (§22)

72.  As a matter of principle, Lam J did not draw a distinction between litigation privilege and legal advice privilege.

73.  A similar conclusion was reached in the Australian case of Gordon v Hilton(unreported, NSW Supreme Court Probate Division, 13 October 1995)at p 3.  Young J gave example of statements on the general history of the family and observations as to the health or possible eccentricities of the testatrix as being outside the scope of the Re Fuld exception.

74.  The rule in Re Fuld and Lam J’s decision in Chinachem were referred to with approval by the Appeals Committee of the CFA in Chinachem Charitable Foundation Ltd v Chan Chun Chuen (2011)  14 HKCFAR 798, §§10-11.

75.  The existence of this rule, and any dispute arising from this rule, is inconsistent with the much wider exception to LPP which arises whenever there is a disputed will.  There would have been no need to resort to the rule in Re Fuld if there is no LPP whatsoever whenever someone disputes a will.

76.  It is therefore plain that Vivien is contending for a position which is plainly not Hong Kong law.  It is certainly not Hong Kong law that whenever there is a contest of the validity of a will, all contestants could claim a “joint privilege” in the LPP of the testatrix. That would be a fundamental intrusion of the testatrix’s constitutional right to LPP.

E1(e).  The Canadian position

77.  As to the Canadian Supreme Court case of Geffen v Goodman Estate[1991] 2 SCR 353, it is clear that the position under Canada is markedly different from the position in England and Hong Kong and the Canadian authorities should not be followed in Hong Kong.

78.  Geffen concerns a dispute as to the validity of a trust deed executed by a woman who had passed away.  There was a question as to whether the evidence of the solicitor who drafted the trust deed ought to have been admitted.  The trial judge admitted the evidence on two grounds, the first of which was that the circumstances of the case were analogous to the contested wills context (see 381f-382a).

79.  It was in discussing whether the trial judge was correct in drawing an analogy between a dispute as to the validity of a will to that of a dispute as to the validity of a trust deed that Wilson J discussed the explanation for the exception that was developed under Canadian law whereby a solicitor is permitted “to give evidence in wills case” (see 384g).

80.  In discussing this exception under the Canadian law, Wilson J referred to the views of Professor Wigmore on the rationale for such an exception in American law: see 384h-385e.  The first rationale he gave only related to the actual contents of the will, ie that the testator only intended confidentiality during his lifetime.  The second rationale he gave concerns only the state of mind of the testator, in cases where there is an allegation of insanity or undue influence, on the basis that the testator did not believe he or she was insane or undue influenced and thus could not have intended to communicate matters relating to his/her state of mind confidentially.  This, with respect, is highly contrived and difficult to understand.  It plainly does not represent the law in England or Hong Kong. There is no such exception known to English or Hong Kong law.

81.  Wilson J also referred to the view of Professor Phipson that the general rule in a joint interest situation may give rise to an exception to LPP in the wills context: see 385f-h.  However, it is not at all clear that Phipson’s view is that this would apply in all cases of contested will.

82.  It would appear that the court there acknowledged that the Canadian case has adopted a unique approach: see 385i.

83.  In this respect, the fundamentally different approach in Canada can be seen from the way in which the court decided to extend the so-called exception in the wills context to the case of a disputed trust deed.  In citing with approval the reasoning in Re Ott (see 386g-387a), Wilson J was in fact setting out the basis for his approach of weighing the considerations for and against admissibility and deciding whether it is “in the interests of justice” to admit such evidence (notwithstanding LPP)  (see 387e-h).

84.  In adopting this approach, Wilson J specifically rejected the approach “of earlier days when the ‘pigeon hole’ approach to rules of evidence prevailed” in favour of a “trend towards a more principled approach to admissibility questions”, citing a couple of Canadian cases on the admission of hearsay evidence and the UK case of DPP v Boardman [1975] AC 421 on the admission of similar fact evidence.  It is apparent from his reference to Boardman that Wilson J was speaking of the approach whereby it was for the trial judge to rule on admissibility based on whether the prejudice to the accused was outweighed by the probative force of the evidence.

85.  However, as explained in paragraph 51 above, the approach adopted in Hong Kong is that LPP does not involve a balancing of interests given its entrenchment as a fundamental right in the Basic Law.  There can be no suggestion that LPP should be curtailed because in the particular case, the probative force would outweigh the prejudice or that it would be “in the interest of justice” to admit the evidence.

86.  Further, this approach is also inconsistent with Hong Kong (and English law)  which recognise the more limited exception under Re Fuld.

87.  For these reasons, I agree the Canadian approach is not Hong Kong law, and it is indeed contrary to English and Hong Kong authorities.

E1(f).  Waiver of privilege by Angela?

88.  In her reply submissions, Vivien asserts that LPP had nevertheless been waived by Angela, by the “disclosure and deployment of the SD”, such waiver would cover not only the SD and the exhibits thereto, but also the transactions which the SD purports to cover, which must include documents in relation to the taking of instructions, preparation and execution of the 2008 Will.

89.  I do not agree.  First, as pointed out at paragraph 11(3)  above, as the SD was disclosed by WSC without Angela’s consent, Angela has made clear that she, as executor, has not waived and continues to maintain privilege in the SD.

90.  Further, although generally speaking, if the other party to the litigation has seen the document, or was privy to the relevant information, then it will normally not be possible to assert privilege against that party in that documents, however, in contrast to the position on waiver of privilege, there is no prospect of arguing for disclosure of collateral material simply on the grounds of loss of confidence (see: Thanki: The Law of Privilege, 3^rd edn 2018, §§5.10-5.12).  In the present case, Angela has done no more than to point out to the existence of the SD and its contents.

E2.  Application to the requests in the Summons

91.  Applying the above principles to Vivien’s Application, most of the requests in the Summons must be refused on the ground that the documents and information sought are covered by LPP and they do not fall within the Re Fuld exception.  In particular, anything concerning the drafting of the 2008 Will or taking instructions for the same or any matter prior to the moment of execution and attestation would by definition fall outside the scope of the rule in Re Fuld.

E2(a).  Documents requested under §1 of the Summons

92.  §1(2)  of the Summons asks for “Documents and/or drafts bearing the specified document reference numbers (the “11070 Documents”), insofar as relating to the matter of the advising, preparation, drafting, drawing up and/or execution of any will and draft wills of Madam Yang, and/or the taking of instructions in respect of the same (the “Will Matter”)”.

93.  For this request, those documents that only relate to the advising, preparation, drafting and drawing up of the 2008 Will do not fall within the Re Fuld exception and would be covered by legal advice privilege.  As for those documents “relating to” the execution of the 2008 Will, there is no reason to order them now.

94.  §1(3)  of the Summons asks for “All note(s), memo(s)  and/or record(s)” (“Notes”)  relating to the Will Matter.  Again following Chinachem, these documents are generally covered by LPP, save for those of the Notes which contain an accurate record of the evidence of Mr Wong on attestation and execution.  There is no reason to order those documents now.

95.  As to the specific documents referred to under §1(3)  of the Summons, none of them concerns the attestation and execution of the 2008 Will:

(1)  It appears that Vivien is now abandoning the requests under §(a), (b), (d)  and (f): see Amendment Summons.

(2)  §3(c) asks for “The Note(s)  of the conversation between Mr Wong and Angela referred to in paragraph 10 of the SD”.  This conversation concerned Mr Wong’s suggestion that Madam Yang might consider whether she should make a new will, long before any draft of the 2008 Will came into existence.

(3)  §3(e) asks for “The document (in the form of a table)  from which the Exhibit “WTS-1” to the SD was extracted”.  That document records Mr Wong’s conversation with Angela on 24 January 2008, which appears in a table form.  There is no basis whatsoever to think that this table would contain any evidence on the attestation and execution of the 2008 Will.

(4)  §3(g) asks for “The document (in the form of a table)  from which the Exhibit “WTS-2” to the SD was extracted”.  That document records Mr Wong’s conversation with Angela on 25 January 2008.  Likewise, there is no basis whatsoever to think that this table would contain any evidence on the attestation and execution of the 2008 Will.

(5)  §3(h) asks for “Note(s)  of the telephone conversation between Mr Wong and Angela on or about 12 February 2008, referred to in paragraph 23 of the SD”.  This conversation concerned what Madam Yang told Angela about how a specific draft of the 2008 Will was to be corrected, which occurred before the date of the execution of the 2008 Will.  This plainly would not contain any evidence on the attestation and execution of the 2008 Will.

(6)  §3(i) asks for “Note(s)  of the conversation and/or communication involving Mr Wong, referred to in paragraph 24 of the SD”.  This conversation/communication occurred on 12 February 2008 and concerned Mr Wong being told to follow Madam Yang’s new instructions to prepare a revised draft of the will.  It would not relate to attestation and execution of the 2008 Will.

(7)  §3(j) asks for “Note(s)  of the telephone conversation between Mr Wong and Angela on 15 February 2008, referred to in paragraphs 27 and 28 of the SD”.  This telephone conversation concerned Madam Yang having made revisions after reading and hearing Angela’s explanation of the contents of a specific draft of the 2008 Will but before the execution of the same.  The Notes of this conversation plainly would not contain any evidence on attestation and execution.

(8)  §3(l) asks for “Note(s)  of the conversation and/or communication between Mr Wong and Madam Yang on 15 February 2008, referred to in paragraphs 36, 38 and 39 of the SD”.  These conversation and communication concerned: (i) Mr Wong explaining the contents of the 2008 Will to Madam Yang; and (ii)  Madam Yang confirming that certain remarks were indeed handwritten by her.  They happened before and do not relate to the attestation and execution of the 2008 Will.

96.  §1(4)  of the Summons asks for “Written instructions relating to the Will Matter”, which is defined as advising, preparation, drafting, drawing up and/or execution of any will and draft wills of Madam Yang, and/or the taking of instructions in respect of the same.

97.  Such written instructions would generally be covered by legal advice privilege.  By definition, advising, preparation, drafting and drawing up the 2008 Will do not fall within the Re Fuld exception. It is difficult to understand why there would be “written instructions” which relate to the execution of the 2008 Will.  In any case, this would occur before the execution of the 2008 Will and thus cannot contain any actual evidence on attestation and execution.

98.  §1(5)  of the Summons asks for correspondence and/or other communications exchanged between WSC and/or Mr Wong on the one hand and Madam Yang, Angela, Dr Cheung and other lawyers and law firms on the other relating to the Will Matter, the 11070 Documents and/or the advising, preparation, drafting, drawing up and/or execution of the SD, and/or the delivery or receipt of the SD, and/or the taking of instructions in respect of the same (“SD Matter”).

99.  In respect of correspondence relating to the Will Matter:

(1)  WSC and Mr Wong were acting as Madam Yang’s solicitor in the “Will Matter”.  Correspondence between WSC and/or Mr Wong on the one hand and Madam Yang and/or Angela on the other are plainly covered by LPP.

(2)  Such privilege would also extend to communications with agents of Madam Yang and Angela, including Messrs Wong Hui & Co, who were solicitors for Madam Yang during her life time.

(3)  By definition, advising, preparation, drafting and drawing up the 2008 Will do not fall within the Re Fuld exception.

(4)  It is difficult to understand why there would be “correspondence” which relate to the execution of the 2008 Will.  In any event, there is no basis to think that these correspondence would contain actual evidence of attestation and execution of the 2008 Will.

(5)  In respect of correspondence between WSC/Mr Wong and other lawyers and law firms relating to the Will Matter, it is at present less clear what is the nature of these communications, and it would be difficult for the court to consider whether the communications are subject to LPP.  There is no reason why these documents should be ordered now anyway.

100.  In respect of correspondence relating to the SD Matter:

(1)  According to WSC, the SD was prepared at the request of Clifford Chance who acted as Angela’s solicitors.  The privilege therefore belongs to Angela in her own right.

(2)  According to WSC, the SD was prepared with the intention of providing evidence as to the preparation and execution of the 2008 Will in case the Will is contested upon Madam Yang’s death.

(3)  Thus, all correspondence between WSC/Mr Wong on the one hand and the other persons identified relating to the SD Matter would be covered by litigation privilege.

(4)  Such correspondence is very similar to item 6 of the request considered in Chinachem: see §1.  Thus, the question is whether such correspondence contain Mr Wong’s evidence of attestation and execution of the 2008 Will.  It was held in Chinachem at §22 that such correspondence would not contain evidence of attestation and execution, and would not fall within the Re Fuld exception: see paragraph 71(3)  above.

(5)  This analysis applies most relevantly to correspondence with Clifford Chance, the solicitors engaged to prepare the SD.  But it must also apply to other persons a fortiori - it is even more far-fetched that correspondence with them would contain evidence of attestation and execution.

101.  §1(7)  of the Summons asks for any other document(s)  contained or kept in the file(s)  of or opened by WSC in respect of or concerning the Will Matter and/or the SD Matter.

102.  These documents, if they are kept in files opened by WSC the firm, are almost certainly covered by LPP, for similar reasons explained above.  Short of the SD itself or drafts SD, it is highly unlikely that any such documents would contain Mr Wong’s evidence on attestation and execution of the 2008 Will.

E2(b).  Information requested under the Annex to the Summons

103.  By the questions listed in the Annex to the Summons, Vivien effectively seeks to interrogate WSC and/or Mr Wong on a range of issues. 

104.  It appears that Vivien is now abandoning the requests under §§(1)-(4), (6)-(7)  and (16)  of the Annex: see Amendment Summons.

105.  It is plain that the information sought under the following items in the Annex are covered by legal advice privilege:

(1)  Item §(5), which concerns when and how Mr Wong was given instructions as to the contents of Madam Yang’s previous will.

(2)  Items §§(8)  and (10), which explicitly ask if Mr Wong was given further instructions on certain matters mentioned in the SD.

106.  Items §§(12)  and (13)  are based on a speculation that because WSC has copied its recent correspondence with Vivien’s solicitors, Messrs Anthony Siu & Co (“ASC”), to various other firms of solicitors, they might somehow have been involved in the Will Matter or the SD Matter.  In this respect, it is at present unclear what is the nature of the communications with these other firms, and some of these questions may involve an answer covered by LPP (as this may reveal legal advice involved in the Will Matter, and most communications in the SD Matter will likely be subject to litigation privilege).  In any case, there is no reason to make any order in respect of these items of information now.

107.  This also applies to items §§14(a)  to (c), which asks about the involvement of other persons and their involvement in the events on the day of the execution of the 2008 Will.

108.  Item §14(d) specifically asks what transpired in supposed meetings, conversations, communications on the date of the exaction of the 2008 Will between 8:22 pm and 8:56 pm.  It is plainly possible that such communication would involve matters covered by privilege, while not relating to attestation and execution of the 2008 Will.  Again, there is no reason to make any order in respect of these items of information now.

F.  GROUND 3: NO JURISDICTION TO ORDER NON-PARTY TO PROVIDE INFORMATION

109.  Paragraph 3 of the Summons seeks an order for WSC to provide various information (instead of documents)  on affidavit.  As noted at paragraph 31 above, the starting point is that the court has no jurisdiction to order a non-party to answer interrogatories.  As will be demonstrated below, none of the bases identified by Vivien - whether practice under Larke v Nugus or the supervisory jurisdiction over solicitors or its inquisitorial role (see paragraph 33 above)  - provide a proper basis for the order sought.

110.  At the outset, it is telling that Vivien is not able to cite any authority whatsoever where the court has ordered a non-party to provide information at the pre-defence stage like what Vivien is attempting here.

F1.  The practice under Larke v Nugus

111.  The true nature of the practice under Larke v Nugus has been discussed at paragraphs 39 and 62 above.  In short:

(1)  In England & Wales, the practice is a matter of professional conduct for solicitors who are will preparers.  It does not appear that this is so for solicitors in Hong Kong.

(2)  For will preparers in general, it is a matter of best practice only which does not have the force of law and cannot be enforced by a court order.

(3)  For a will preparer who is also the executor, the best practice is underlined by the executor’s duty to avoid costly litigation in respect of the estate.  As shown by Larke v Nugus itself, a failure to comply with this practice may have adverse cost consequences for the executor.

112.  As such, it is plain that the Larke v Nugus practice does not afford an independent ground for a party to a probate litigation to apply for court orders which the court has otherwise no jurisdiction to make.  It certainly does not provide any jurisdiction of the court to order a non-party to provide information.  No authority whatsoever has been cited to suggest otherwise.

F2.  The court’s inquisitorial jurisdiction in probate matters

113.  Vivien relies on the court’s inquisitorial jurisdiction in a probate action.  She cited Lord Scott NPJ’s statement at §643 in Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387 and suggests that the court has the power to require its own witness, “particularly one who has made a sworn statement pertaining to the preparation and execution of the contested will”, to provide information.  However, this is misconceived.

114.  First, in fact what Lord Scott said at §643 only extended to attesting witnesses and their evidence on the circumstances in which the will was executed (and nothing more).  There, Lord Scott cited a passage in Williams, Mortimer & Sunnucks to the effect that attesting witnesses are witnesses of the court, and went on to reason that Mrs Wang in that case was in a position akin to an attesting witness.  Nothing was said about a witness or evidence relating to matters going beyond attestation and execution.  This is completely in line with the well-established scope of the rule in Re Fuld, as discussed above.

115.  In the present case, most of the requests for documents and information do not concern matters of attestation and execution. Since Vivien is not relying on this jurisdiction for the discovery of documents, it is sufficient to deal with the requests for information in the Annex to the Summons.

(1)  The requests under items §§(5), (8), (9), (10), (11)  concern the drafting and instructions given for the 2008 Will, and items §§(14)(d)  and (15)  concern what happened after the 2008 Will was executed.  They plainly do not relate to attestation and execution.

(2)  As to items §§(12), (13)  and 14(a)  to (c), they ask about the involvement of various solicitors and firms named by WSC in recent correspondence (see paragraph 106 above)  and whether there were any other person involved (see paragraph 107 above).  Given that these other persons cannot possibly be the attesting witnesses, Lord Scott’s statement also cannot apply to them.

116.  Second, Lord Scott was only making the point that Mrs Wang was compellable as a witness at trial, in the context of rejecting a suggestion that Mrs Wang had “avoided” cross-examination.  This does not say, and does not provide any basis for suggesting, that the court has to order interrogatories, or that it should exercise any power to compel a person to provide information or answer questions at the interlocutory stage. The fact that a witness may be compellable at trial (say under a subpoena), or could be compelled to answer all relevant questions at trial (which is generally the position for all witnesses)  does not mean that they could be compelled to answer interrogatories at the interlocutory stage, not to mention at the pre-defence stage.

F3.  The court’s supervisory jurisdiction over solicitors

117.  Vivien’s novel argument based on the court’s supervisory jurisdiction over solicitors appears to run as follows:

(1)  Vivien alleges that the destruction of the will file by WSC was a “wrongful and improper” act because it is a deliberate destruction of material evidence of the probate action.

(2)  This resulted in prejudice to Vivien but “to the sole benefit of Angela”.  It also prejudiced the court because it sits as an inquisitorial tribunal in a probate matter.

(3)  Thus, the court’s supervisory jurisdiction over WSC as officers of the court is invoked, and that the court should grant “compensatory relief” in the form of an order requiring WSC to provide Vivien and the court with “all the information and documents” relating to the preparation and execution of the 2008 Will.

118.  At the outset, I agree it is wholly unfair for Vivien to criticise WSC as having deliberately destroyed evidence.  There is plainly no basis to suggest any bad faith on the part of WSC, especially when Mr Wong has already made the SD and has exhibited the relevant contemporaneous notes made by him.  There is plainly no basis to suggest that Mr Wong has left out any important information or important contemporaneous documents from the SD.  Indeed, WSC has confirmed that most of the documents in the will file have been exhibited to the SD.

119.  It is also open to doubt whether WSC owed any such duty to the court in the relevant sense to invoke the court’s supervisory jurisdiction when he has never acted as solicitors of Angela or any party in the probate action.

120.  More importantly, none of the authorities relied on by Vivien provide support for her suggestion that the court’s supervisory jurisdiction over solicitors can be exercised to require WSC to provide documents and information to “compensate” for the destruction of WSC’s case file.

121.  It is true that the court has a very wide supervisory jurisdiction over its officers.  However, that does not mean that anything and everything can be done upon the application of any party.  There are well-recognised situations where the court would exercise its supervisory jurisdiction over solicitors.

122.  In R & T Thew Ltd v Reeves (No 2)[1982] QB 1283, Lord Denning MR explained that the court’s jurisdiction over a solicitor was a disciplinary jurisdiction and was exercisable in two ways: “either by punishing him; or by making him pay compensation” (emphasis added): see 1285G-H.

123.  He went on to explain that: (1) the punitive jurisdiction to strike off or suspend a solicitor was “rarely if ever exercised” since such matters would be left to the Solicitors Disciplinary Tribunal (1286A-C); (2) the compensatory jurisdiction was preserved and retained by the courts themselves, and that under this compensatory jurisdiction, a solicitor who has done something wrong (for example, caused useless costs to the other party)  could be ordered personally to compensate the other party: 1286D.

124.  The various powers and relief available to the court under its supervisory jurisdiction over solicitors are summarised in Halsbury’s Law of England (5^th edn)  Vol 65 (2020), §§497-514 and Wilkinson's Professional Conduct of Lawyers in Hong Kong (Desk Edn 2019), §§11-163 to 11-208.

125.  None of the examples given support Vivien’s contention that the court can grant an order requiring the solicitor to produce documents or to provide information.

126.  As to the court’s power to make “compensatory” orders, it appears that the court would only order a solicitor to pay compensation, either by way of wasted costs or compensation for loss caused by his misconduct: see Halsbury Vol 65, §§505, 506; Wilkinson,§§11-182, §11-208.

127.  There are recognised situations where the jurisdiction is exercised which involve something other than payment of money or compensation.  For example, the court has power to order a solicitor to perform an undertaking that he has given as a solicitor (Halsbury Vol 65,§§501-503), and to order a solicitor to deliver up (and supply copies)  to his client all documents in his custody, possession or power belonging to the applicant or relating to an action (Halsbury Vol 65,§§510-512).

128.  The judgment in Myers v Elman [1940] AC 282 at 318-319 cited by Vivien merely contains a general description of the court’s supervisory jurisdiction and the type of misconduct required to engage the jurisdiction.  The case itself concerned imposition of personal liability to pay costs on the solicitor.

129.  The jurisdiction to order return of documents is perhaps superficially closer to Vivien’s present requests for WSC to produce documents.  However, to invoke this jurisdiction, the relationship of solicitor and client must have existed between the applicant and the solicitor: see Halsbury Vol 65, §511.

130.  In Hanley v JC&A Solicitors [2018] 4 Costs LR 693, an argument was made to extend this jurisdiction to require delivery of documents which belonged to the solicitors, relying on the wide scope of the court’s supervisory jurisdiction over solicitors (and reliance was placed on Myers v Elman): see §59.  This was rejected by Soole J at §§60-75.  It was noted in particular that the exercise of the court’s jurisdiction is based on ownership of the client: §66.

131.  This case demonstrates that the exercise of the court’s jurisdiction is based on established authorities and the jurisdiction will not be extended simply by reference to the wide nature of the court’s supervisory jurisdiction.

132.  The limits on this jurisdiction to require delivery of documents show that, a fortiori, the court’s jurisdiction do not extend to require the disclosure of information, nor to a party who is not a client of the solicitor.

133.  Vivien is simply neither the client of WSC nor the “owner” of any documents or information which are in WSC’s possession or knowledge.  It is plain that the court’s supervisory jurisdiction would not assist Vivien’s application.

134.  As to Re Hulm & Lewis [1892] 2 QB 261, the court exercised its jurisdiction to order the return of money and documents over the defendant who pretended to be solicitors.  For obvious reasons, the court saw fit to exercise its jurisdiction as if the defendant was a solicitor. That does not in any way relax the requirements explained above.

135.  It follows that the court has no jurisdiction to make the order sought under paragraph 3 of the Summons, which falls to be dismissed on this ground alone.

G.  GROUND 4: OTHER MISCELLANEOUS OBJECTIONS

136.  As submitted by Angela, the individual requests for documents in paragraph 1 of the Summons are also open to the following objections.

137.  The applicable principles for specific discovery against a non-party are well-established and a useful summary can be found at Global Gaming Philippines LLC v Deutsche Bank AG, Hong Kong Branch [2019] HKCFI 405 at §§39-50 (Lisa Wong J).  The following points are relevant for present purposes:

(1)  The applicant must demonstrate a prima facie case on the usual criteria of existence, possession custody or power and relevance applicable to inter partes discovery: §41.

(2)  When what is sought is a class of documents, each document of the class must be relevant, as the court has no power to order discovery of irrelevant documents: §44.

(3)  Fishing expedition with a view to hunting around the documents in the hope that they will reveal some improprieties on the part of the opposite party or will provide information for the applicant to pursue more inquires is not permitted: §45.

138.  §1(1)  of the Summons asks for “All draft(s)  and/or other version(s)  of any will of [Madam Yang]…”.  In this respect:

(1)  The draft with reference “2008-02-04” and document number 11070d009” asked for under §1(1)(a)  has already been produced as “WTS-3” of the SD.

(2)  The faxed copy of the 2008-02-15, a draft will with handwritten remarks of Madam Yang as referred to at §§29 & 39 of the SD had already been disclosed at “WTS-5” of the SD.  This is exactly the document asked for under §1(1)(c)  of the Summons and would have covered the unmarked version asked for under §1(1)(b).

(3)  §1(1)(d)  asks for “Any other draft will(s)  or testamentary script(s)  of the Deceased not specified in (a), (b)  or (c)  above”.  Vivien has not shown any prima facie case why it is supposed there will be any further drafts. There is certainly nothing in the SD which suggests so.  Similarly, when the preamble of §1(1)  asks for all drafts or other versions “including but not limited to” those identified at §§1(1)(a)  to (d), it is not understood what other possible drafts or other versions could exist.  Such a wide formulation of the class is clearly improper.

139.  Summons §1(3) asks for certain specific notes of conversation or attendance notes.  However, the preamble asks for “All note(s), memo(s), and/or record(s)… relating to the Will Matter and/or the 11070 Documents…, including but not limited to…”.  Again, Vivien has not shown any basis for supposing that there are any other such notes or memos in existence, in light of the contents of the SD.  Such wide formulation is impermissible for a specific discovery request.

140.  Summons §1(4) asks for “Written instructions relating to the Will Matter and/or the 11070 Documents”.  However, Vivien has not explained the basis for supposing that any such written instructions exist.  The SD already contained Mr Wong’s account of how instructions were given and Vivien has no basis to suggest that there were any “written instructions” not identified in the SD.  The burden is on Vivien to show that the documents sought exist.  It is not permissible for Vivien to use a specific discovery request to seek to obtain a confirmation that no other documents exist: see Nokia Corp v TCT Mobile Ltd HCCL 19/2011 (unrep, 5 August 2013), §§23-26 (Ng J).

141.  Summons §1(5) asks for correspondence and/or other communications exchanged between WSC and/or Mr Wong on the one hand, and other persons on the other relating to the Will Matter and/or the SD Matter.  However, all that Vivien is basing this request on is a suspicion that these other persons and firms were somehow involved, because WSC copied them in its letters with Vivien’s solicitors as “possible related parties”.  I agree this does not come close to showing a prima facie case for the existence of relevant correspondence between WSC and these other persons.  Instead, this is clearly a fishing request.

142.  Summons §1(7) is obviously not a properly formulated class request.  It basically asks for any other documents contained or kept in the file(s)  of or opened by WSC in respect of or concerning the Will Matter and/or the SD Matter.  There is no attempt to show such documents exist.  It is also plainly too wide just to ask for “all other relevant documents”.

H.  CONCLUSION

143.  For all the reasons stated above, Vivien’s Summons should be dismissed with costs.

144.  In the premises, I make an Order in the following terms:

(1)  The defendant’s Summonses respectively dated 4 September 2020 and 18 January 2021 be dismissed.

(2)  The defendant do file and serve her Defence and Counterclaim within 14 days from the date of this Decision.

145.  I do not find it appropriate to make an unless order against the defendant at the present stage.

146.  Regarding costs, I order that the costs of the defendant’s Summonses respectively dated 4 September 2020 and 18 January 2021 be paid by the defendant to the plaintiff and the respondents, such costs are to be taxed on the party and party basis if not agreed (with a certificate for 3 counsel for the plaintiff).

147.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

148.  Lastly, I express my gratitude to the legal representatives on all sides for their helpful assistance in this matter