GEORGE Y.C. MOK & CO. (a firm) v. TRADE ADVISERS CO LTD AND OTHERS

HCA5019/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5019 OF 2001

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REASONS FOR DECISION

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1. This is the defendant's application for an order that the action be tried with a jury.

2. The plaintiff commenced this action against the defendants for damages and injunctive relief in libel and/or malicious falsehood. The plaintiff is a firm of solicitors practising in Hong Kong. The defendants are its former clients. The claim arises out of a complaint by the defendants against the legal fees charged by the plaintiff when acting as their legal representatives in a High Court action. The subject matter of the claim concerns two letters written by the defendant, one to the Law Society and the other was faxed to the plaintiff.

3. The defendants defend the claim principally on grounds of absolute and qualified privilege, apart from other matters stated in the defence.

4. At the checklist review hearing on 11 December 2002, the defendants indicated that they would not request for the trial to be heard with a jury. Accordingly, leave to set down before a judge alone in the running list was granted. The action, however, has not yet been set down. There were further interlocutory applications subsequent to the checklist review hearing.

5. Then on 14 January 2003, the defendants' solicitors wrote to the plaintiff's solicitors stating that the defendants wished to have the trial heard before a jury. Following that, the summons in issue was filed on 30 January 2003. Paragraph 1 of the summons asked for an order that the action be heard before a jury.

6. The plaintiff opposes the application. As I understand it, the objection is twofold. Firstly, it is said that the application is contrary to section 33A(2) of the High Court Ordinance, Cap. 4. Secondly, the plaintiff argues that this is not a proper case for jury trial.

7. Section 33A(1) of the High Court Ordinance provides that in an action or a claim that involves libel, upon the application of any party to the action, the action shall be tried with a jury unless the court is of the opinion that the trial requires prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

8. Section 33A(2) further provides that an application under subsection 1 must be made not later than such time before the trial as may be prescribed by Rules of Court. The relevant Rules of Court is Order 33, rule 4(1), which states:

"In every action begun by a writ, an order made on the summons for directions shall determine the place and mode of the trial and any such order may be varied by a subsequent order of the court made at or before the trial."

9. The combined effect of section 33A(2) and Order 33, rule 4(1) is that an application for trial before a jury has to be made before the place and mode of the trial are determined. Prima facie, the present application is out of time because the mode of the trial of this action had already been determined and ordered by the Listing Master at the checklist review hearing on 11 December 2002.

10. Notwithstanding that, Ms Chau, who appears for the defendants, relies on the part of Order 33, rule 4(1) of the Rules of High Court, which provides that any order regarding the place and mode of the trial may be varied by a subsequent order of the court made at or before the trial.

11. Additionally, Ms Chau refers to a passage in the Hong Kong Civil Procedure 2002 Vol. 1 para. 33/5/2 at p.539 which reads:

"Although the requirement in Order 33, rule 5 that an application for trial with jury must be made before the place and mode of trial is fixed under Order 33, rule 4 is not capable of modification or relaxation, the effect of being out of time to apply under s.33A does not deprive the court of the power to direct trial by jury within the discretion conferred by s.33A(3) (Cropper v. Chief Constable of South Yorkshire Police & Another [1989] WLR 333 C.A.)."

12. Cropper v. Chief Constable of South Yorkshire Police & Another is an appeal from the decision of the Registrar to vary an earlier order he made as to the mode of trial to provide for a trial with a jury. The English Court of Appeal dismissed the appeal and held that the Registrar had a discretion to vary his previous order, pursuant to Order 33, rule 5(1) which is the equivalent of our rule 4(1). The Court of Appeal considered that, in the circumstances of that case, the Registrar was entitled to exercise his discretion in favour of ordering a trial with jury.

13. Accordingly, notwithstanding that the present application was made after the mode of trial had been determined and therefore contrary to the stipulation under section 33A(2) of the High court Ordinance, the court still retains a discretion to order a trial with jury. Being a discretion, however, it will have to be exercised judicially and on good grounds. It is therefore for the defendants to explain and to set forth circumstances which merit the court exercising the discretion to vary the previous order made under Order 33, rule 4(1) and to order a trial with a jury.

14. Mr Lai who appears for the plaintiff rightly points out that the defendant's solicitors' letter of 14 January 2003 contains no explanation at all for the change of stance. Indeed, no affidavit has been filed in support of the present application. What I was told by Ms Chau was that there had been a misunderstanding between the solicitors and the defendants resulting in the indication at the checklist hearing that the defendants did not request for a trial with a jury.

15. In my view, this is hardly sufficient to explain the position taken before the Listing Master previously and the subsequent change of position. To say the least, it is not known what was the misunderstanding and what has caused the misunderstanding.

16. Additionally, I observe that from the pleadings, the issues of privilege, absolute and qualified privilege, seems to be more questions of law than questions of fact.

17. Ms Chau has impressed upon me that there are elements of public interest involved in this case, namely, the public's desire to see allegations of overcharging by solicitors to be dealt with by the jury. But, in my view, that consideration has to be weighed against another consideration, namely, the action concerns also the reputation of a professional firm and the reputation and the honour of the plaintiff is at stake. The importance of the question of public interest, in my view, cannot be elevated to too high a level.

18. To conclude, this is a matter that appeals to the discretion of the court and good reasons have to be put forward in order that a court can exercise its discretion. For the reasons given, I am driven to the conclusion that the application has to be dismissed. The summons is accordingly dismissed.

19. There is no reason why costs should not follow event. Therefore, the plaintiff's costs of the summons ought to be borne by the defendants.

20. Having regard to the fact that this is a small application and a short one, it is appropriate for the costs to be dealt with by summary assessment under Order 62, rule 9(4) of the Rules of High Court. Considering that the hearing before me took about 45 minutes, that there had been an appearance before the Listing Master on the summons earlier on this afternoon, and that it would appear that Mr Lai had made some research into the matter, I regard it appropriate to award costs at $3,500.

21. Accordingly, I order that the defendants pay the plaintiff the costs of the summons, assessed at $3,500 under Order 62, rule 9(4)(a) of the Rules of High Court. The amount is payable forthwith.