MAKHSSIAN TRAJAN VAHE v. MAYER BROWN JSM, AU SIMON MING SUED AS “SOLICITOR ASSOCIATE SIMON AU MING”, DAVID MCKELLAR SUED AS “AVOCATE SOLICITOR, DAVID MCKELLAR”

HCA 934/2020

[2022] HKCFI 2897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 934 OF 2020

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DECISION

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1.  This matter has some history, the relevant particulars of which are set out in the decisions of the Honourable Mr Justice Coleman at [2020] HKCFI 3168 and [2022] HKCFI 385.  I won’t repeat the history here, save to note that the Plaintiff’s claim against the above-named Defendants has been struck out long ago on 31 December 2020 in a fully reasoned decision by the judge ([2020] HKCFI 3168).  His application for leave to appeal out of time was also denied on 17 January 2022 ([2022] HKCFI 385).

2.  Somehow, the Plaintiff managed to obtain a hearing date before this Court in this matter without actually filing a summons.  This is not the first occasion where this has occurred, the leave to appeal application having come about in a similar manner (see [2022] HKCFI 385 at paragraph 4).  This is obviously not ideal and the Plaintiff is reminded that he must follow the rules of court in conducting litigation.  In particular, where he has obtained a hearing date based on a summons, he ought to file the same and then serve it on the relevant parties.  Be that as it may, I proceeded to hear the substance of the Plaintiff’s complaints and afforded him an opportunity to ventilate his grievances.

3.  The summons by the Plaintiff does not identify what he seeks.  It simply cites Order 29, rr1, 7 and 8A of the Rules of the High Court.  There is also an affidavit which does not appear to have been properly filed wherein he sets out his various complaints.  At the hearing, I clarified with him the nature of his grievances, which can be summarised as follows:

(1)  He states that the Defendants did not instruct a barrister, that such step was contrary to the Rules of the High Court and various other practice rules, and that this caused unfairness in the various hearings, including the substantive hearing when the strike out was heard and determined against him.

(2)  He points to the Acknowledgment of Service filed by the Defendants and says that there was no proper indication in the said document as to the Defendants’ stance, such that in those circumstances the matter should be stayed.

(3)  He says that there had never been any Defence filed by the Defendants, contrary to an order dated 20 August 2020 by Master Dick Ho.  He complains again that the procedure was unfair.

(4)  He then points to the bill of the solicitors acting for the Defendants, and says that the sum charged was unreasonable.

4.  There is no merit in any of the complaints.

5.  First, the time for appeal of the decision has long passed.  The application for leave to appeal has also been rejected.  Even if any of the grounds had any merit (which they do not), it is too late to raise such complaints now.

6.  Second, insofar as there are complaints about the procedures which led to the eventual striking out decision, these are misplaced and based upon a misunderstanding of the relevant procedures:

(1)  As was noted at paragraph 5 of the Strike Out Decision (which was heard in Chambers), Mr Withington of Messrs Howse Williams appeared for the Defendants.  It is well accepted that solicitors have rights of audience before a judge in chambers in the Court of First Instance.  There was nothing untoward about Mr Withington’s appearance.

(2)  As to the complaint about the Acknowledgment of Service, the appropriate box had been checked indicating that the Defendants intended to contest the proceedings, which was in essence a claim for defamation / libel (i.e. a non-monetary claim).  The box which the Plaintiff pointed to in the form was in respect of solely monetary claims, which was inapplicable in the circumstances.

(3)  As to the complaint about the failure to file a defence, that was based upon a misunderstanding of the order in question. The strike out application proceeded and was heard by the Court.  The order in fact indicates that the time for filing of the defence was extended until 28 days after the final determination of the strike out summons.  This type of order is commonly made in circumstances where there is an extant strike out application.  There was thus no obligation upon the Defendants to file a defence pending the hearing of their strike out.

(4)  In any event, in relation to the procedural complaints, as was expressly noted by the judge, the Plaintiff was given a certain degree of leniency to make all relevant points given he was acting in person. The process by which his arguments were considered was unimpeachable.

7.  Finally, as to the bill of costs of the Defendants’ solicitors, there is an order dated 4 February 2022 wherein the costs were summarily assessed on an indemnity basis and the Plaintiff ordered to pay the same. There has been no appeal or application for leave to appeal against that order.

8.  I thus consider that the application is unmeritorious.  The summons will be dismissed.