LO KAI SHUI v. HSBC INTERNATIONAL TRUSTEE LTD AND OTHERS

HCA 404/2018

[2021] HKCFI 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 404 OF 2018

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J U D G M E N T

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A. INTRODUCTION

1.  This is the hearing of (i) the applications of the 1^st defendant (the “Trustee”) and the 2^nd defendant (“KS”) to strike out parts of the Statement of Claim (“SOC”); (ii) the application of the plaintiff in this action (“Lu”) under Order 15, rule 14 of the Rules of the High Court (“RHC”) for an order that any judgment or order given or made in HCA 3246/2016 and HCA 355/2018 (“Madam Lo’s Actions”) and any appeals therefrom shall not be binding on Lu in this action; and (iii) the application of Lu in this action for leave to amend his SOC.

2.  In respect of 1(i) above, there are two summonses (the “Strike Out Applications”) taken out by the Trustee and KS respectively:

(1)  the Trustee’s summons dated 30 September 2019 (the “Trustee’s Strike Out Application”) for an order that paragraphs 32 to 100 (ie Sections D, E, F and G) of the Statement of Claim dated 14 February 2018 in HCA 404/2018 (“Lu’s Action”) be struck out and Lu’s claims against the Trustee as set out therein be dismissed on the grounds that they are frivolous or vexatious, or are otherwise an abuse of the process of the court; and

(2)  KS’s summons dated 30 September 2019 (“KS’s Strike Out Application”) for an order that paragraphs 135, 136, 137, 138.3, 138.4, 138.6, 140.3, 140.4, 140.6 and 142, and the words “D, E, F, G” in paragraph 149 of Lu’s Statement of Claim filed on 14 February 2018 be struck out on one or more of the following grounds:

(a)  They are vexatious and oppressive; and/or

(b)  They are otherwise an abuse of the process of the court.

3.  In a nutshell, the Trustee submits that having incurred substantial time and costs defending itself against the unmeritorious claims in Madam Lo’s Actions, the Trustee now finds itself vexed by many of the same claims and issues in the present proceedings, ie Lu’s Action, which have already been determined in its favour in Madam Lo’s Actions.

4.  The Trustee further submits that Lu’s attempt to take a second bite at the cherry is clearly against the fundamental principle in the law designed to protect litigants from oppressive proceedings.  It is also manifestly unfair to the Trustee, this court and the general public (whose resources will be utilised in dealing with these proceedings) when the undisputed evidence clearly shows that Lu was closely involved in the preparation and conduct of Madam Lo’s Actions from the outset, meaning that he could and should have raised any claims which were not raised by Madam Lo by joining those proceedings as a plaintiff.

5.  In the circumstances, the Trustee’s contention is that Lu is barred from advancing the overlapping claims on the grounds of res judicata and abuse of process.  The Trustee therefore seeks an order that paragraphs 32 to 100 of the SOC be struck out with costs.

6.  In summary, KS’s position is that the paragraphs in the SOC targeted in the KS’s Strike Out Application raise issues that could and should have been litigated against KS in Madam Lo’s Actions.  The present action also amounts to a collateral attack against the Judgment (defined below).  It would therefore be vexatious and oppressive, as well as an abuse of the court’s process, for Lu to be allowed to re-run the same issues in the current action. 

7.  Lu’s position regarding the Strike Out Applications has been helpfully summarised in the Executive Summary attached to the plaintiff’s Skeleton Submissions as follows. 

8.  Privity of interest in Hong Kong requires “a parallel or corresponding interest”.  However, Lu’s interest is non-aligned, and in fact conflicting with, that of Madam Lo, whose main aim (to have the Trust assets return to her) was destructive of Lu’s interests and expectation as a beneficiary.

9.  The causes of action are different: not least, Madam Lo’s claims were for breaches of duties and loss to her individually, whereas Lu’s claims are for breaches of duties and loss caused to the Trust and its beneficiaries as a whole.

10.  The issues are also different: in Madam Lo’s Actions, the issue in each case (qua “necessary ingredient in a cause of action”) was whether the Trustee had been in breach for failing to act on her instructions in her letters.

11.  The Trustee’s default was an ongoing and escalating breach.  Further, the reliefs sought were for the most part discretionary and the exercise of discretion does not give rise to res judicata.

12.  The defendants themselves are cross-estopped through (i) waiver, (ii) estoppel by representation/acquiescence, and/or (iii) estoppel by convention.

13.  There is no abuse by Lu.  Despite bringing the application specifically on the basis that Lu was at fault for “standing back” and could have joined as a co-plaintiff, the Trustee has given no explanation of how Lu could have brought his claims as a co-plaintiff.

14.  Further, it was at all times opened to the Trustee not only to apply to join Lu, but also to bind Lu through a representation order under Order 15, rule 13 RHC or service of notice of action on Lu under Order 15, rule 13A RHC.

B.  BACKGROUND

15.  The following background facts are extracted from the Skeleton Submissions of the 1^st defendant.

B1.  The Lo Family and Great Eagle Holdings Ltd

16.  Mr Lo Ying Shek (“Mr Lo”) and Madam Tao Soh Ngun (“Madam Lo”) had 9 children (“Children”), namely (in order of age), the 3^rd Defendant (“Nina”), Annie Lo Hung Suen (“Annie”), Antony Lo Hong Sui (“Antony”), Lo Yuk Sui (“YS”), KS, Lo Hong Sui (“Vincent”), Gwen Lo Wai Ki (“Gwen”), Lo Ying Sui (“Archie”) and Lu.

17.  In or around 1963, Mr Lo and Madam Lo founded the Great Eagle group of companies.  Great Eagle Holdings Ltd (“GE”) became the listed holding company of the group in 1990.

18.  Mr Lo died on 1 September 2006.

19.  Since the 1980s, KS has been buying shares in GE as a display of confidence in GE.  Following Mr Lo’s death, KS purchased additional shares in GE.  This was motivated by, inter alia, KS’s concern that the aggregate GE shareholding of the Trust and the Lo family members might one day fall below 50%, particularly in light of Lu’s sale of approximately 55 million GE shares within one month of Mr Lo’s death.

B2.  The Trust

20.  The Trust, a discretionary trust, was established in 1984.  The “eligible beneficiaries” (ie the discretionary objects) are defined in the trust deed to include Mr Lo, Madam Lo, all of their issue and any spouses of their issue born within 80 years of the establishment of the Trust.

21.  The Trustee was appointed as trustee of the Trust in 1999.

22.  At all material times, the assets of the Trust have included shares in GE.  As of December 2016, the Trust’s GE shareholding represented around 33% of the total issued share capital of GE.

B3.  The KSL Trust

23.  In 1999, KS settled a trust known as the KSL Excalibur Trust.  That trust was terminated and replaced by another trust known as the KSL Trust in 2008.

B4.  The 2015 family meeting and subsequent fallout

24.  According to Lu, (1) during a family meeting in or around the second half of 2015 (which he attended), a dispute arose from KS’s proposal to recommend his son Alex be appointed to the GE board of directors, and (2) after some of the other Children disagreed, KS apparently announced that he had acquired enough GE shares to remove the other Children from the board of directors of GE if he wished.

25.  After Madam Lo learned of the said incident from Lu and some of the other Children, she issued several letters to the Trustee in which she requested the Trustee to, inter alia, utilise the available funds of the Trust to purchase additional shares in GE.  In her evidence, Madam Lo stated that she issued these letters not to benefit herself personally, but to ensure that GE would not be controlled by some of the Children to the exclusion of others.

26.  In the same period, Lu and the other Children who supported Madam Lo at the time, namely Antony, YS, Gwen and Annie (collectively, “Lu’s Camp”) began to attend meetings with Madam Lo’s legal representatives to discuss what eventually became Madam Lo’s Actions.

27.  On 25 April and 2 June 2016, Lu and his camp also wrote letters to the Trustee in which they indicated their “complete trust and agreement” with Madam Lo’s wishes and decisions.

28.  The Trustee met with Madam Lo and the members of Lu’s Camp in, inter alia, May, June and September 2016.  During the meetings in June and September 2016:

(1)  Lu’s Camp stated that it was necessary for the Trustee to comply with Madam Lo’s requests in order to “dilute KS’s personal holding”, maintain the Trust’s “controlling stake” in GE and preserve the value of the “family shares”.

(2)  The Trustee responded that the Trust was not the best vehicle to acquire more GE shares in light of the concentration risk involved.

B5.  Commencement of HCA 3246/2016

29.  On 7 December 2016, the Trustee presented at a meeting with the Children a proposal to restructure the Trust by dividing it into 9 separate trusts and explained that if there was no agreement on the matter, it would have to make an application to court.

30.  On 9 December 2016, Madam Lo commenced HCA 3246/2016 against the Trustee.

31.  The Trustee sent copies of the pleadings in Madam Lo’s Actions (including amendments to the pleadings) to each of the Children.  In these letters, the Trustee expressly informed the recipients that “the interests of the beneficiaries of the Trust may be affected” by Madam Lo’s Actions.

B6.  Post-commencement Letters of Request in 2016 and 2017

32.  After the commencement of HCA 3246/2016, Madam Lo continued to issue letters to the Trustee in which she requested the Trustee to, inter alia, purchase additional shares in GE on behalf of the Trust.

33.  In her letters dated 19 December 2016, 27 July 2017 and 7 December 2017, Madam Lo specifically mentioned the need for the Trustee to protect the Trust’s controlling shareholding and single largest shareholding in GE, as well as the value attached to the Trust’s status as single largest shareholder.

34.  On 30 March 2017, Lu also issued a letter to the Trustee, in which he stated that:

“I, being a beneficiary of the [Trust], wish to request you to purchase Great Eagle shares for the benefit of the Lo Family Trust. Such purchase is for the purpose of enhancing and/or ensuring the controlling position of the Lo Family Trust (the Lo Family as a whole) in Great Eagle. The Lo Family and/or its trust must maintain its controlling interest in Great Eagle, which has always been the intention of our parents, the Founders of Great Eagle. A loss of such controlling interest will gravely impact the values of such block of shares, which therefore will also damage the benefits of all the beneficiaries.

Please note that you, as trustee of the Lo Family Trust, have the duty to protect the value of such Trust's assets and the interests of its beneficiaries…” (emphasis added)

35.  On 10 May 2017, GE’s 2017 AGM took place.  Out of the 193.8 million shares which were voted (which did not include the shares held by the Trust, as well as the vast majority of the shares held by KS), approximately 166.9 million voted against the re-election of Lu as Deputy General Manager and director of GE.

36.  On 18 May 2017, Vivien Chan & Co (Madam Lo’s solicitors at the time) issued a letter to Clifford Chance (the Trustee’s solicitors at the time) arguing that the Trustee was under a duty to purchase additional shares in GE for the following reasons:

(1)  The intention of the settlors, and the purpose of the Trust, was to maintain and entrench its controlling shareholding in GE.

(2)  The Trust is not an investment trust and therefore the Trustee should not take concentration risk into account.

(3)  The Trustee has duties to safeguard and maintain the value of its shareholding in GE.  If the Trust lost its status as single largest shareholder in GE, the value of its shareholding in GE would drop.

B7.  Amendment of Pleadings in Madam Lo’s Actions in 2017

37.  On 17 July 2017, Madam Lo amended her Statement of Claim in HCA 3246/2016 (“3246 SOC”).  The amendments included, inter alia, the following averments:

(1)  The Trustee breached its “no conflict” duty by acting as trustee of the KSL Trust in circumstances where the controlling GE shareholding held by the Trust was put at risk by KS’s increasing shareholding in GE.

(2)  The Trustee breached its duties by failing to implement Madam Lo’s request to purchase additional GE shares even though it knew that the controlling GE shareholding held by the Trust was at risk of being jeopardised by KS’s gradually and continually increasing GE shareholding.

(3)  The Trustee breached its duties by failing to exercise or take prompt action to ensure that it was in a position to exercise the voting powers attached to the Trust’s GE shares at GE’s annual general meeting on 10 May 2017 (“2017 AGM”).

B8.  Commencement of HCA 355/2018 and the present proceedings in 2018

38.  On 9 February 2018, Madam Lo commenced HCA 355/2018 against the Trustee.  This was done to introduce pleas based on factual matters which took place after the commencement of HCA 3246/2016, specifically the letters of requests issued by Madam Lo to the Trustee after 9 December 2016.

39.  On 14 February 2018, Lu commenced the present proceedings.  The writ was not preceded by any letter before action or formal communication with the Trustee.

B9.  Trial of Madam Lo’s Actions

40.  On 29 May 2018, the trial of Madam Lo’s Actions commenced.  The trial dates were divided into 4 tranches:

(1)  29-31 May, 1, 4-8 and 11-15 June 2018.

(2)  8, 14-16, 26-27 and 30 November 2018.

(3)  22-25 and 27-28 January 2019.

(4)  1, 4 and 26-29 March 2019.

B10.  Madam Lo’s late amendment application in May 2018

41.  The day before the commencement of trial, Madam Lo took out an application for amendment of her Statements of Claim and Replies in both actions.  On 1 June 2018, this court allowed the amendment application on the ground that the amendments involved matters which were already in issue between the parties in the proceedings.  This decision was upheld by the Court of Appeal in its judgment dated 11 October 2018.

B11.  KS’s joinder application

42.  On 10 August 2018, KS took out an application for leave to join Madam Lo’s Actions as a defendant in the event that the following issues fell to be determined (“KS’s Joinder Application”):

(1)  Whether the increase in his stake in GE has caused loss to the Trust’s GE shareholding.

(2)  Whether KS’s interests were no longer aligned with those of the Trust and the other members of the Lo family, such that the Trust’s alleged controlling shareholding in GE is at risk of being jeopardised.

43.  On 11 October 2018, this court dismissed KS’s Joinder Application on the following grounds:

(1)  The applications were made in the midst of the trial and were extremely late.

(2)  KS provided no satisfactory explanation for the lateness of the application.  The claim that the application was necessitated by Madam Lo’s amendments in June 2018 were unsupportable, as those amendments did not introduce any new factual matters.

(3)  In any event, KS lacked sufficient interest in Madam Lo’s Actions, as:

(a)  Madam Lo’s claims were only made against the Trustee and not against KS.  There were no claims or questions to be tried as between Madam Lo and KS.

(b)  Even if there was overlap between the issues in Madam Lo’s Actions and the present proceedings, it would not be just for those issues to be determined between KS and Madam Lo in Madam Lo’s Action when Lu was not a party to those proceedings.

(c)  KS would not be bound by any decision or finding in Madam Lo’s Actions, as he was not a party to those actions.

(4)  Further still, the court’s residual discretion should be exercised against the joinder in order to prevent any delay or disruption to the trial.

B12.  Madam Lo’s late expert evidence application

44.  On 18 October 2018, Madam Lo took out an application for leave to adduce expert evidence on, inter alia, the following issues:

(1)  Whether the Trust’s GE shareholding was a controlling shareholding.  If so, whether the controlling shareholding was under threat by reason of KS’s increased shareholding in GE and/or the Trustee’s refusal to purchase additional GE shares.

(2)  Whether the Trust’s GE shareholding held a premium value.  If so, whether the premium value was put at risk or reduced by reason of KS’s increased shareholding in GE and/or the Trustee’s refusal to purchase additional GE shares.

45.  On 14 November 2018, this court dismissed the said expert evidence application because, inter alia, there was serious and unjustified delay on Madam Lo’s part, and the proposed expert evidence would cause significant disruption to the trial which was already underway.

B13.  The Judgment

46.  On 22 May 2019, this court handed down judgment in Madam Lo’s Actions (“Judgment”). In the Judgment, this court dismissed each of Madam Lo’s claims, including the ones mentioned in paragraph 37 above. In relation to those claims, it was held, inter alia, that:

(1)  It is not a purpose of the Trust to preserve a controlling shareholding in GE.

(2)  The Trust has not had a controlling shareholding in GE, in the sense that it gave the Trust actual control over the outcome of any shareholders’ meeting, since July 2004.

(3)  Madam Lo failed to show that the Trust’s 33% shareholding in GE at the material time carried a premium value.

(4)  KS did not pose a threat to the Trust’s shareholding or interest in GE.

(5)  The Trustee did not owe any duties either to ensure the joint ownership and management of GE by the Children, or to ensure that the alleged controlling shareholding of GE can be maintained by the Trust.

(6)  The Trustee was in any event entitled to opt not to purchase additional GE shares on the ground of concentration risk.

(7)  The Trustee was not grossly negligent or in wilful default by opting not to purchase additional GE shares.

(8)  The Trustee did not put itself in a position of actual or potential conflict by acting as trustee of the KSL Trust, as it has no power or responsibility for investment decision making.

(9)  The Trustee’s inability to vote at the 2017 AGM resulted from the fact that it was not able to obtain waivers from the Appointors and Guardians of the Trust because it only received notice of the AGM shortly before the meeting.

(10)  The Trustee’s decision to wait until it received the AGM notice and proxy forms before writing to the Appointors and Guardians was a wholly reasonable course of conduct.

(11)  The Trustee had no duty to attend or vote at any of GE’s AGMs.  A fortiori, it had no duty to ensure that it was in a position to exercise its voting powers at the 2017 AGM.

B14.  The Strike Out application

47.  On 30 September 2019, the Trustee took out the striking out summons which is before this court.

48.  On 29 July 2020, Lu took out a summons under Order 15, rule 14 RHC for an order that any judgment or order given or made in Madam Lo’s Actions (and the appeals therefrom) shall not be binding on him in the present proceedings.

B15.  Dismissal of appeals against the Judgment

49.  Madam Lo has agreed to discontinue her appeals against the Judgment.  On 4 December 2020, consent summonses were filed on behalf of Madam Lo and the Trustee, pursuant to which the Court of Appeal has, inter alia, dismissed the appeals filed by Madam Lo in CACV 265/2019 and CACV 266/2019 (ie the appeals from Madam Lo’s Actions) with costs of the appeals to the Trustee, to be taxed if not agreed.

50.  In light of this development, any argument by Lu to the effect that the Strike Out Applications should be dismissed because of the pending appeals against the Judgment necessarily falls away.

C.  THE STRIKE OUT APPLICATIONS

C1.  The Trustee’s Strike Out Application

C1.1  Res Judicata

C1.1.1  The relevant legal principles

51.  It is well established that a pleading or part of a pleading may be struck out under Order 18, rule 19 RHC where the pleaded claims are barred on the ground of res judicata.

52.  The doctrine of res judicata is not a rule of evidence but one of substantive law, for which the underlying public policies are (1) the interest of the community in the termination of disputes and the finality of judicial decisions, and (2) the need for individuals to be protected from vexatious multiplicity of suits: China North Industries Investment v Chum [2010] 5 HKLRD 1 at §47 (Stock JA, as he then was).

53.  There are two species of res judicata, or estoppel per rem judicatam, namely cause of action estoppel and issue estoppel: R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 AC 146 at 156D (Lord Clarke); Total Lubricants Hong Kong Ltd et al v Christophe de la Cropte de Chanterac (No 2) [2013] 2 HKLRD 838 at §13 (Kwan JA, as she then was). 

54.  Cause of action estoppel prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties.  If the cause of action was determined to exist, it is said to be merged in the judgment.  If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does: Thoday v Thoday [1964] P 181 at 197-198 (Diplock LJ, as he then was); Total Lubricants, Supra, at §14.

55.  Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue: Arnold v National Westminster Bank plc [1991] 2 AC 93 at 105D-E (Lord Keith), Ho Wai Sang v Fok Kai (unreported, CACV 3883/2001, 27 June 2002) at §11 (Rogers VP).

56.  The constituent elements of the two species of estoppel are the same:

(1)  There must be an earlier judicial decision which was in fact pronounced.

(2)  The tribunal had jurisdiction over the parties and the subject matter in the earlier decision.

(3)  The tribunal determined a question raised in the later litigation.

(4)  The earlier decision was final and on the merits.

(5)  The parties are the same or their privies.  Alternatively, the earlier decision was in rem.

See: Spencer Bower and Handley: Res Judicata (5^th ed, 2019) §1.02 (adopted in the context of cause of action estoppel in R (Coke-Wallis) at §34 and Total Lubricants at §15).

57.  There is, however, a distinction between cause of action estoppel and issue estoppel.  And the distinction relates to the extent to which a point may be reopened in the later proceedings.

(1)  Where there is a cause of action estoppel, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment.  The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not permit the latter to be reopened: see Arnold at 104D-E (Lord Keith) and Total Lubricants at §13 (Kwan JA).

(2)  Issue estoppel is subject to a special circumstances exception, namely that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings: see Arnold at 109A-B.

C1.1.2  Matters in dispute

58.  The Trustee’s contention is that the Judgment in Madam Lo’s Actions gives rise to both cause of action estoppel and issue estoppel in relation to the following claims in the SOC:

(1)  The Trustee breached its duties by failing to take reasonable steps to preserve the Trust’s alleged controlling shareholding in GE or its value (“Controlling Shareholding Claim”).

(2)  The Trustee breached its duties by failing to vote its GE shares in favour of the reappointment of Lu as director of GE at GE’s 2017 AGM (“AGM Claim”).

(3)  The Trustee placed itself in a position of conflict by acting as trustee of the KSL Trust (“Conflict of Interest Claim”) (collectively, “Overlapping Claims”).

59.  In his evidence, Lu does not dispute that the first two elements mentioned in paragraph 56 above are satisfied.  Nor does he suggest that he should be entitled to reopen the decided issues in the event that the doctrine of res judicata applies.  Instead, the main areas of dispute are:

(1)  Whether the Judgment decided causes of actions and/or issues raised in the present proceedings.

(2)  Whether the Judgment was a final decision.

(3)  Whether Lu is a privy of Madam Lo.

C1.1.3  Causes of action and/or issues decided in the Judgment

60.  The extent of the overlap between the causes of action and/or issues decided in the Judgment and those raised by Lu in the present proceedings is substantial and can be seen from a comparison of the relevant passages in (1) the pleadings in the present proceedings, (2) the pleadings in Madam Lo’s Actions, and (3) the Judgment.  These passages are summarised by the Trustee in the tables below.

61.  Regarding the Controlling Shareholding Claim:

Cause of Action/Issue	Pleadings in Lu’s Action	Pleadings in Madam Lo’s Actions	Judgment
Cause of action: Whether the Trustee has acted in breach of trust in preserving the value of the Trust’s GE shareholding	SOC §§32-63	3246 SOC §§52(4), 52(7), 52E(1) 3246 Reply §2	§§222-410
Issue: Whether the Trust held a controlling shareholding in GE	SOC §34	3246 SOC §§52(4)(iii), 52D(3)(b), 52E(1) 3246 Reply §§2(2), 15(3), 56AA(1)-(3)	§§246-270, 304-305, 419-421, 443
Issue: Whether the Trust’s shareholding in GE was valued at a premium because of its “controlling” status	SOC §35	3246 SOC §52D(4)(a) 3246 Reply §§15(3), 56AA(5)-(7)	§§261, 302, 304-305, 437-438
Issue: Whether KS’s shareholding in GE adversely affected the Trust’s alleged controlling shareholding in GE	SOC §§37-44, 57-59	3246 SOC §§52(4)(iv), 52D(3)(b), 52E(1) 3246 Reply §§2(7), 56AA(5)-(7)	§§306-323, 437-438, 443
Issue: Whether the Trustee was entitled to take into account concentration risk	D1/D5 Defence §§15.4, 23	3246 Reply §§15(1)-(4), 23, 43(3)	§§328-404
Issue: Whether the Trustee breached its duties by failing to purchase additional shares in GE	SOC §§36, 45-56, 60-61, 63	3246 SOC §52(7)	§§409-410

62.  Regarding the AGM Claim:

Cause of Action/Issue	Pleadings in Lu’s Action	Pleadings in Madam Lo’s Actions	Judgment
Cause of action: Whether the Trustee has acted in breach of trust by failing to vote its GE shares at GE’s 2017 AGM in favour of the reappointment of Lu as director of GE	SOC §§64-67, 78-100	3246 SOC §52E(4)-(7) 3246 Reply §56C(4)	§§493-503
Issue: Whether the Trustee was under a duty to exercise the voting powers attached to its GE shares at GE’s 2017 AGM	D1/D5 Defence §30.1	3246 SOC §52E(4)-(7) 3246 Reply §56C(4)	§500
Issue: Whether the Trustee failed to promptly seek waivers from the appointors and guardians of the Trust needed to vote on its GE shares at GE’s 2017 AGM	SOC §§65-67	3246 SOC §52E(4)-(7) 3246 Reply §56C(4)	§§493-497

63.  Regarding the Conflict of Interest Claim:

Cause of Action / Issue	Pleadings in Lu’s Actions	Pleadings in Madam Lo’s Actions	Judgment
Cause of action: Whether the Trustee has breached its duties by placing itself in a position of conflict by acting as trustee of the KSL Trust	SOC §§74-77	3246 SOC §56D 3246 Reply §56B	§§411-443
Issue: Whether the Trust held a controlling shareholding in GE	SOC §34	3246 SOC §52(4)(iii) 3246 Reply §2(2)-(8)	§§246-270, 304-305, 419-421, 443
Issue: Whether the KSL Trust’s shareholding in GE had an adverse impact or threatened to adversely impact the Trust’s alleged controlling shareholding in GE	SOC §§74-77	3246 SOC §§52D, 52E(1)	§§306-323, 423-438, 443

64.  As submitted in the Trustee’s oral submissions on day 1 of the hearing, in order for cause of action estoppel to operate, it is not necessary to show that each and every element in the cause of action in the earlier proceedings is identical to that in the cause of action in the subsequent proceedings.  As long as the factual scenario (or the factual basis) as giving rise to the claim is the same in the two sets of proceedings, that is sufficient for the purpose of cause of action estoppel.  See: Republic of India v India Steamship Co Ltd [1993] AC 410 at 412D-F; Letang v Cooper [1965] 1 QB 232 at 243A, 243F-G, 244B-C; M Barnes QC, The Law of Estoppel §§9.76 & 9.77.

65.  Contrary to Lu’s submissions to the contrary, the causes of actions for each of the 3 Overlapping Claims in both Madam Lo’s Actions and in these proceedings are the same.  The court must look at the substance of the relevant complaints in different sets of proceedings to see if they are essentially the same.  One must not get bogged down by the use of different labels or terminology in the pleadings: such differences do not assist in ascertaining whether one cause of action is the same as another.

66.  As submitted by the Trustee, the Controlling Shareholding Claim in both Madam Lo Actions and in these proceedings involves the making of the allegations that (1) the Trust holds a block of shares in GE which has a premium value by virtue of the size of the block, (2) KS has been amassing a competing stake in GE to the detriment of the value of the Trust, and (3) the Trustee has failed to purchase additional GE shares to protect the Trust’s assets.  The same claim involves the reliance on the same factual scenarios. 

67.  As regard the AGM Claim:

(1)  This claim in both sets of proceedings involves the making of the allegations that (i) the Trustee was under a duty to exercise voting powers at the 2017 AGM, (ii) the Trustee failed to exercise such powers and (iii) Lu was not re-appointed as GE’s director at the 2017 AGM.  They give rise to the same cause of action.

(2)  It was asserted in the oral submissions made on behalf of Lu that Madam Lo did not plead a claim of negligence and gross negligence in relation to the AGM Claim.  That assertion is incorrect: see 3246 SOC §§52E and 52E(4)-(7).

68.  As far as the Conflict of Interest Claim, it is significant to note that there was no suggestion by Lu that there was any difference between his conflict of interest claim and Madam Lo's conflict of interest claim. 

69.  Lu has suggested that Madam Lo in her Actions was only complaining about loss and damage to herself in her personal capacity, whereas Lu in these proceedings is suing for loss and damage suffered by the Trust.  However, it was made abundantly clear in Madam Lo’s Opening Submissions (at §§296-300) that the equitable compensation she sought was for “the loss incurred by the Trust as a result of its failure to purchase more shares in GE”. 

70.  Further, as regard issue estoppel, in order for issue estoppel to operate, the issue that was previously litigated and determined must be so fundamental and cardinal that the decision cannot stand without it.

71.  As demonstrated in the Trustee’s submissions, the issues in each of the 3 Overlapping Claims in Madam Lo’s Actions and in these proceedings are the same. 

72.  In his oral submissions, Lu advanced certain arguments to suggest that his claims in relation to the Trust’s shareholding in GE are different to those advanced by Madam Lo.  I agree that these arguments have no merits.

(1)  Lu argued that only his claims involve the question of whether the Trust’s shareholding commands a premium value.  This is incorrect.  The issue of whether the Trust’s shareholding in GE commanded a premium value was also in issue, and decided, in Madam Lo’s Actions: see Judgment at paragraphs 261, 302, 304-305, 437-438.

(2)  Lu further argued that his case depends upon change in relative control in GE’s shareholding structure, as opposed to the Trust's absolute controlling shareholding. This is also a bad argument.  First, the point relates to the specific evidence which Lu intends to rely upon; it does not change the nature of the issue, namely whether the Trust’s shareholding in GE commands a premium value, which has already been decided.  Second, and in any event, the distinction is an artificial one, as Madam Lo’s case was also based on "relative shareholding" rather than "absolute control": see Judgment at paragraphs 235-243, 247-251.  The repeated submissions made on behalf of Madam Lo at the trial of Madam Lo’s Actions were that “it was all a numbers game”.

(3)  Lu referred to Madam Lo’s unsuccessful attempt to amend her pleading to include references to the Trust alleged “dominant and de facto” controlling shareholding in GE, and argued that the fact that his claims now incorporate these concepts to describe the Trust’s shareholding in GE must mean that he is bringing a new claim, or advancing a new issue.  This argument is also unmeritorious.  Lu’s claims in relation to the Trust’s shareholding in GE simply cannot get off the ground because it has already been decided that the Trust’s shareholding does not command a premium value, and KS’s shareholding does not constitute a threat to the value or voting power of the Trust’s shareholding: see Judgment at paragraphs 261, 302-323, 437-438, 443.  Those are essential elements of Lu’s Controlling Shareholding Claim: see SOC at paragraphs 32, 35, 36, 57, 60.  Therefore, it makes no difference that the concepts of “dominant and de facto” control are now being introduced by Lu in his pleadings in these proceedings.

C1.1.4  Final Judgment

73.  In his evidence, Lu claims that the element of finality is not satisfied because Madam Lo has appealed against the Judgment.

74.  For the reasons set out in paragraphs 49 and 50 above, Lu’s argument in this regard necessarily falls away.

C1.1.5.  Privity of Interest

75.  Privity can consist of privity of blood, title or interest: China North, Supra, at §78.  For present purposes, the Trustee relies only on privity of interest.

76.  To establish privity of interest, it need not be shown that the party to later proceedings (Party B) was the “alter ego” of one or more parties to the earlier proceedings (Party A).  Instead, what must be shown is that, having regard to the subject matter of the dispute, there was a sufficient degree of identification between the two to make it just to hold that the decision involving Party A should be binding on Party B: Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at 515F-G (Megarry VC) (adopted by Stock JA in China North at §80).

77.  In determining whether there is a sufficient degree of identification between Party A (a party to previous proceedings) and Party B (a new party), the court should examine (a) the extent to which Party B had an interest in the subject matter of the previous action, (b) the extent to which Party B can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation: Resolution Chemicals Ltd v H Lundbeck A/S [2014] RPC 5 at §32 (Floyd LJ), adopted in Capital Wealth Finance Co Ltd v Lai Yueh-Hsing (unrep, HCA 686/2012, 31 July 2015) at §29 (Anthony Chan J).

78.  One category where the sufficient identity requirement may be satisfied is where Party B has a direct interest in the subject matter of the earlier litigation which is parallel to or corresponds to the interest of Party A in the same subject matter: China North at §81.

79.  An example of this first category is where one beneficiary brings a claim against the trustee for breach of trust.  In such proceedings, the other beneficiaries are normally deemed to be privies of the plaintiff beneficiary unless they have a demonstrably separate interest in the subject matter.  This first category was recognised by Sir Robert Megarry V-C in Gleeson at p 515H when he said “in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa” (and implicitly approved by Stock JA in China North at §81).

80.  The position on the identity of interest is even stronger in relation to the beneficiaries as amongst themselves.  As the learned editors of Lewin on Trusts (20^th ed, 2020) observe at §§41.068-41.069:

“The claimant in a claim for breach of trust, or to restrain a breach of trust, is usually a beneficiary or a new trustee…There is no requirement for all beneficiaries and current trustees to be claimants in claims involving a trustee as all beneficiaries will, at least in most circumstances, have a privity of interest in the proceedings as there will be a sufficient degree of identity between them such that all will be bound. Once a judgment has been delivered, all those who are privies to it will accordingly be bound, and not able to re-open any issue or cause of action which is the subject of a res judicata…

There is an exception to this rule where one or more beneficiaries have a demonstrably separate interest from that of other beneficiaries, such as where one class of beneficiaries will not benefit from any compensation recovered or may have their interests defeated, that they will not be bound and may appear separately.”

81.  A second category where the sufficient identity requirement may be satisfied is where Party B knows that his rights are being tested in the earlier proceedings involving Party A but stands back and allows Party A to “fight his battle”: House of Spring Gardens v Waite [1991] 1 QB 241 at 252G-253F (Stuart-Smith LJ), Si Tou Choi Kam v Wealth Credit [2018] HKCA 250 at §§27-30 (Cheung CJHC, as he then was). 

82.  An example of this second category in the probate and trust context is Re Lart [1896] 2 Ch 788:

(1)  That case was concerned with the estate of one John Lart, who died leaving 7 daughters.

(2)  In 1881, one of his daughters (Mrs Stanton) died without leaving children. An action was commenced to determine how the share of the estate set apart to provide for Mrs Stanton’s annuity should be distributed.  In 1883, Chitty J construed John Lart’s will and decided that the relevant share of the estate was divisible equally among the surviving children of the testator.

(3)  In 1894, another daughter (Ellen Wilkinson) died without leaving children. Another action was commenced by the plaintiff to determine how the share of the estate set apart to provide for Ellen Wilkinson’s annuity should be distributed.

(4)  The evidence showed that the plaintiff was aware of the earlier proceedings before Chitty J and had advised the parties not to appeal.

(5)  In the second action, Chitty J held that since the plaintiff knew about the first action but stood by and allowed his battle to be fought by somebody else in the same interest, he was bound by the construction of the will in the first action and was prevented from reopening the issue.

83.  Applying these principles, I agree that Lu is in privity of interest with Madam Lo because:

(1)  Lu had the same direct and parallel interest in the relevant subject matters in Madam Lo’s Actions as that of Madam Lo.

(2)  Lu was closely involved in the preparation and conduct of Madam Lo’s Actions, such that he may be fairly be said to be, as a matter of substance and reality, a co-plaintiff in those proceedings.

(3)  It is fair and just to bind Lu to the outcome of Madam Lo’s Actions when he chose to stand by and allow Madam Lo to fight his battle.

Each of these matters will be elaborated below.

C1.1.5a  Lu has same direct and parallel interest as that of Madam Lo in the subject matters of Madam Lo’s Actions

84.  The identity of Lu’s and Madam Lo’s interests in the subject matters and outcome of Madam Lo’s Actions can be seen from the following factors.

85.  First, Madam Lo and Lu are both discretionary objects of the Trust.

86.  Second, the Overlapping Claims in Madam Lo’s Actions and Lu’s Action are all claims against the Trustee based on breach of trust.

87.  In his evidence, Lu claims that he is not Madam Lo’s privy because Madam Lo brought her claim in a personal capacity while he brings his claims in his fiduciary capacity as Appointor and Guardian of the Trust. This argument is flawed for a number of reasons:

(1)  Madam Lo plainly did not bring her claims solely in her personal capacity.  A large part of her claims (including the Overlapping Claims) were based on breach of trust (see Section E of the Judgment) and could only have been brought by her in her capacity as discretionary object of the Trust.  Madam Lo alleged that the Trustee breached its duties to her “in her capacity as an Eligible Beneficiary of the Trust” and sought a declaration that the Trustee breached such duties, damages for breach of trust and/or equitable compensation.

(2)  Likewise, Lu did not bring his claims in his capacity as Appointor and Guardian of the Trust.  The Appointors and Guardians of the Trust do not have any special power or duty to bring proceedings against the Trustee for breach of trust, and Lu does not refer to any such power or duty in the SOC.  Instead, it is clear from the nature of the claims pleaded in the SOC that Lu is simply seeking to bring claims against the Trustee for breach of trust in his capacity as discretionary object of the Trust. 

88.  Third, Madam Lo and Lu share a very close parent/child relationship.  This is not a case where the court is dealing with arms-length commercial parties with shared legal or commercial interests.

89.  Fourth, Lu was directly involved in most (if not all) of the factual events leading to Madam Lo’s Actions, including:

(1)  The establishment of the Trust and its day-to-day management.

(2)  The meeting in or around the second half of 2015, during which KS allegedly announced that he had acquired enough GE shares to dismiss all the Lo family members on GE’s board of directors.

(3)  The discussion between Madam Lo and the Children which gave rise to Madam Lo’s decision to issue her letters to the Trustee in January and February 2016.

(4)  Subsequent incidents which gave rise to further tensions with the Lo family, such as the alleged ring-fencing of Madam Lo.

90.  Fifth, Madam Lo and Lu pursue the same ultimate objectives through their respective actions, namely to ensure that the Trust maintains its alleged controlling shareholding in GE and to prevent KS from obtaining control over GE:

(1)  In Lu’s own words, he became “personally concerned” about KS’s conduct after the family meeting in late 2015 and supported Madam Lo in order to stop KS from seizing control of GE to the exclusion of the other children.

(2)  While Madam Lo has also sent letters which purport to direct the Trustee to distribute the assets of the Trust to her, she has made clear in her evidence as well as her correspondence with the Trustee that she asks the Trustee to do so not so she can personally benefit from the assets of the Trust, but to ensure that (1) the Trust maintains its alleged controlling shareholding in GE, and (2) none of the Children are able to control GE to the exclusion of the others.

(3)  It is clear from the evidence that this perceived threat from KS is what drove (and continues to drive) both Madam Lo and Lu to take legal action against the Trustee.

91.  Sixth, Madam Lo and Lu both seek much of the same or similar relief in their respective actions against the Trustee, including declarations which would have the effect of compelling the Trustee to purchase additional shares in GE (based on, inter alia, the Controlling Shareholding Claim), as well as orders to remove the Trustee as trustee of the Trust (based on, inter alia, the Conflict of Interest Claim).

92.  Seventh, in relation to the AGM Claim, both Madam Lo and Lu had identical interest in the subject matter.  Indeed, the whole claim arises because of Lu’s failure to get re-elected as Deputy General Manager and director of GE at GE’s 2017 AGM.

93.  The fact that Lu and Madam Lo’s interests were completely aligned is affirmed by the letters sent by Lu and his Camp to the Trustee dated 25 April and 2 June 2016, in which he indicated his “complete trust and agreement” with Madam Lo’s wishes and decisions.

94.  The substantial alignment between Lu and Madam Lo’s interests brings them squarely within the privity of interest principle as set out above.

C1.1.5b  Lu was in reality a co-plaintiff in Madam Lo’s Actions

95.  The undisputed evidence shows that Lu was closely involved in the preparation and conduct of Madam Lo’s Actions, such that he was effectively in the position of a co-plaintiff in those proceedings.  Such evidence includes:

(1)  Lu’s witness statement in Madam Lo’s Actions and his Affirmations in these proceedings, in which he acknowledges he provided advice and assistance to Madam Lo in relation to her litigation against the Trustee and participated in meetings with Madam Lo’s legal advisers for this purpose.  Such assistance included getting Madam Lo to sign instructions letter for her solicitors, and sending messages directly to her solicitors.

(2)  Madam Lo’s witness statements in Madam Lo’s Actions, in which she stated that Lu acted against KS and Archie by helping her deal with her actions against the Trustee.  Madam Lo also added, in a vivid piece of testimony, that she had advised Lu to hire a bodyguard to protect himself from KS and Archie.  This goes to show the depth and extent of Lu’s involvement in Madam Lo’s Actions.

(3)  Antony Lo’s First Affirmation, in which he affirms that Lu participated in a number of meetings with Madam Lo’s legal representatives to discuss what became Madam Lo’s Actions.

(4)  The records of WhatsApp chat messages between Lu and members of his camp, from which it can be seen that (1) Lu was involved at an early stage in the planning and preparation of what became Madam Lo’s Actions and (2) attended various conferences with Madam Lo’s leading counsel in 2016 and 2017.

(5)  The email from a solicitor of Vivien Chan & Co (Madam Lo’s solicitors at the time) to Clifford Chance (the Trustee’s solicitors at the time) dated 22 July 2016, from which it can be inferred that the correspondence and court documents in Madam Lo’s Actions were all provided by Madam Lo’s solicitors to Lu.

(6)  A video clip showing that Lu was present in a meeting between Madam Lo and her solicitors.

(7)  Madam Lo’s evidence during cross-examination, which shows that:

(a)  Lu was closely involved in the discussions leading up to her request to the Trustee to purchase additional shares in GE and that the idea of purchasing shares came from the members of Lu’s Camp.

(b)  Madam Lo had difficulty following the developments in her action against the Trustee and had to rely on others for assistance.  For example, she even had trouble recalling the year of the trial.

(c)  Madam Lo relied significantly on Lu.  This can be seen from the fact that she asked the Trustee’s counsel to direct his questions to Lu when she did not know the answer.

(8)  Records of Lu’s interviews with the press during the trial of Madam Lo’s Actions, which show that Madam Lo was content for him to speak to the press on her behalf.

96.  Indeed, the evidence suggests that Lu was the driving force behind Madam Lo’s Actions.  This can be seen from:

(1)  Antony Lo’s First Affirmation, in which he states that Lu controlled both Madam Lo and Madam Lo’s Actions, and used his close relationship with Madam Lo and her trust in him to pressure her into instituting and continuing those proceedings.

(2)  Lu’s evidence in cross-examination, during which he acknowledged that the members of Lu’s Camp were the ones who came up with the idea of requesting the Trustee to purchase additional GE shares.

C1.1.5c  Lu should be bound by the outcome of Madam Lo’s Actions

97.  Against the abovementioned background, it is clear that Lu knew his rights and interests were being tested in Madam Lo’s Actions, but was content to stand by and allow Madam Lo to fight the battle on his behalf:

(1)  In light of Lu’s involvement in the preparation and conduct of Madam Lo’s Actions, Lu must have had knowledge of the issues in dispute in those proceedings.

(2)  The Trustee also provided each of the Children (including Lu) with copies of the pleadings in Madam Lo’s Actions by way of correspondence.

(3)  Lu must therefore have known from the outset that his rights were being tested in Madam Lo’s Actions.

(4)  In particular, he must have known from an early stage that Madam Lo’s Actions involved issues such as (a) whether the Trustee placed itself in a position where its interests conflicted with its duties by acting as trustee of the KSL Trust, (b) whether the Trustee breached its duty to purchase additional GE shares so as to preserve the Trust’s alleged controlling shareholding in GE, and (c) whether the Trustee breached its duty to take prompt action to ensure that it could vote in favour of his reappointment as director of GE at its 2017 AGM.

(5)  Insofar as Lu believed his rights and interests were not adequately represented by Madam Lo, he could easily have applied to join Madam Lo’s Actions as a plaintiff.  However, he chose to stand by and allow Madam Lo to fight the battle on his behalf.

(6)  In his evidence, Lu appears to rely upon the dismissal of the KS’s Joinder Application in support of the contention that he could not have joined in Madam Lo’s Actions even if he had chosen to do so.  Insofar as Lu is advancing such an argument, I agree the argument is misconceived:

(a)  As mentioned above, the KS’s Joinder Application was dismissed on the grounds of lateness, KS’s lack of sufficient interest, and the need to prevent disruption to the trial: see paragraph 43 above.

(b)  None of those points apply to Lu.

(c)  Lu could have applied to join Madam Lo’s Actions at a very early stage and certainly before the trial began in May 2018.  Lu’s justification for his decision to stand by until February 2018 is untenable.

(d)  Unlike KS, Lu plainly had sufficient interest in Madam Lo’s Actions: see Section C1.1.5a above.

98.  Lu therefore falls squarely within the principle in House of Spring Gardens, Si Tou Choi Kam and Re Lart: see paragraphs 81 and 82 above.  In the circumstances, it is fair for him to be bound by the outcome in Madam Lo’s Actions.

99.  On the question of privity of interest, the Trustee correctly made the following further submissions in answer to Lu’s arguments.

100.  The approach for determining privity of interest is whether there is a sufficient degree of identification between Party A and Party B, so as to make it just to hold that the decision involving Party A should be binding on Party B: Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at 515F-G, China North at §80.

101.  Lu’s attempt to extract hard and fast requirements from the specific facts of the authorities (such as what he describes as the elements of the “standing back doctrine”) is misconceived. Those cases are merely examples which the Trustee relies upon to illustrate the circumstances in which two parties may be found to be privies of each other. To the extent that it is necessary to focus on specific authorities, the focus should be placed on the broad principles which they stand for rather than their specific facts:

(1)  The principle was referred to by the Court of Appeal in Si Tou Choi Kam at §28 (citing Wytcherley v Andrews (1871) LR 2 P&M 327 at 328):

“There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case…”

(2)  That principle originated from probate cases but it is now clear that it is of broader application: Si Tou Choi Kam at §30, House of Spring Gardens Ltd v Waite [1991] 1 QB 241 at 253E-F.

(3)  In accordance with this principle, beneficiaries who are not parties but wish to actively participate in the claim against a trustee for breach of trust should apply to join the proceedings at the earliest possible opportunity, otherwise they are likely to be bound once a judgment is delivered: Lewin on Trusts (20^th ed, 2020) at §41-069.

(4)  Lu’s attempt to suggest that the CFA decision of Li Cheong v Lee Kwai Tai (2020) 23 HKCFAR 116 has the effect of narrowing the principle to probate cases is clearly unsustainable.  That point was never argued and was not decided in that case.

102.  As discussed above (see Section C1.1.5a above), each of the 3 Overlapping Claims were brought by Madam Lo in Madam Lo’s Actions, and by Lu in these proceedings, against the Trustee in their capacity as eligible beneficiaries of the Trust.  Their interests in pursuing each of the 3 Overlapping Claims are identical.

103.  Lu argued that because Lu and Madam Lo have no beneficial interest in the underlying properties comprised in the Trust, they are not privies of another.  This is a non-sequitur.  For the purpose of privity of interest, the commonality of interest in the subject matter of the litigation is obviously not confined to “proprietary interest” (as submitted by Lu).  As eligible beneficiaries of the Trust, both Lu and Madam Lo have “a right in equity to due administration of the [trust]” (Kan Lai Kwan v Poon Lok To Otto (2014) 17 HKCFAR 414 at §43).  And it is precisely because of this right that Lu has, and Madam Lo had, standing to make complaints against the Trustee’s conduct in these proceedings and in Madam Lo’s Actions respectively.  Indeed, in his witness statements filed in these proceedings and in Madam Lo’s Actions, Lu has confirmed that the reason for both him and Madam Lo taking legal proceedings against the Trustee arises out of their concerns over the Trustee’s conduct in the administration of the Trust.  It follows that Lu and Madam Lo have identical interest in pursuing each of the 3 Overlapping Claims against the Trustee in these proceedings and in Madam Lo’s Actions.

104.  As mentioned in paragraphs 89 to 95 above, the undisputed evidence (including Lu’s own evidence both in Madam Lo’s Actions and the present proceedings) shows that he was directly involved in the relevant factual events leading to Madam Lo’s Actions, and was closely involved in the preparation and conduct of Madam Lo’s Actions from the outset. This means that he knew full well that his rights were being tested in Madam Lo’s Actions but chose to stand by and watch the battle being fought by others.

105.  Lu sought to distance himself from Madam Lo’s Actions by suggesting that the duplication in claims only arose when Madam Lo’s legal team amended her pleadings midway through trial.  It was further suggested on behalf of Lu that there were matters that “were totally outside [Lu’s] control” and “[to] a considerable degree outside his knowledge”, and therefore it is unfair to make Lu the privy of Madam Lo.

106.  As submitted by the Trustee, these contentions are incorrect.  The following core elements of the Overlapping Claims had been introduced by Madam Lo by way of amendment as early as July 2017:

(1)  The Trustee breached its “no conflict” duty by acting as trustee of the KSL Trust in circumstances where the controlling GE shareholding held by the Trust was put at risk by KS’s increasing shareholding in GE.

(2)  The Trustee breached its duties by failing to implement Madam Lo’s request to purchase additional GE shares even though it knew that the controlling GE shareholding held by the Trust was at risk of being jeopardised by KS’s gradually and continually increasing GE shareholding.

(3)  The Trustee breached its duties by failing to exercise or take prompt action to ensure that it was in a position to exercise the voting powers attached to the Trust’s GE shares at the 2017 AGM.

See 3246 SOC §§52D, 52E(1), 52E(4)-(7).

107.  Madam Lo’s application to amend her pleadings was only allowed on 1 June 2018 because this court found that the new amendments did not raise any new factual claims.  Specifically, this court considered that the issues in the Controlling Shareholding Claim had already been raised by Madam Lo when the amendment application was made. 

108.  Lu’s attempt to suggest that he was prevented from participating in Madam Lo’s Actions because he was “stonewalled by the trustee” is plainly unfounded when the undisputed evidence (which Lu did not deal with in submissions) shows that Lu had full access to Madam Lo’s solicitors and counsel and were provided by them with documents and correspondence relating to Madam Lo’s Actions.  He was aware of all the relevant facts leading to Madam Lo’s Actions and could easily have become a co-plaintiff when Madam Lo commenced her proceedings in December 2016.  In addition, Lu had received from the Trustee’s solicitors the pleadings in Madam Lo’s Actions at the material times and knew what he needed to know in relation to the claims brought by Madam Lo. 

109.  In these circumstances, given that there is an identity of interest between Lu and Madam Lo, it is entirely just to make Lu the privy of Madam Lo.

C1.2  Abuse of Process

C1.2.1  The relevant legal principles

110.  Abuse of process (sometimes called the Henderson v Henderson abuse, or res judicata in the wider sense) may arise where there has been no earlier decision capable of amounting to res judicata (either or both because the parties or the issues are different) for example, where liability between new parties and/or determination of new issues should have been resolved in the earlier proceedings.  It may also arise where there is such an inconsistency between the two that it would be unjust to permit the later one to continue.  See Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at §§57-62 (Ma CJHC as he then was).

111.  As described by Ma CJ in Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at §82, the essence of the doctrine of abuse of process is that “a party ought generally not be permitted to raise in subsequent proceedings matters which that party could and should have raised in earlier proceedings”.

112.  A pleading or part of a pleading may also be struck out where the pleaded claims constitute an abuse of process, in that they could and should have been raised in earlier proceedings: Ko Hon Yue at §§83-84 (Ma CJ), Yifung Properties v Smith [2019] 1 HKLRD 36 at §16 (Lam VP).

113.  The onus is on the party alleging abuse to establish that the subsequent litigation is an abuse.  The abuse can take a number of forms, including (a) oppression, vexation or unjust harassment of that party or his privy, (b) the administration of justice being brought into disrepute, and (c) manifest unfairness to that party or his privy: Ko Hon Yue at §83(3)-(4), Yifung at §§17-18.

114.  It is not necessary, for the purposes of establishing an abuse of process, to show that the parties to the two sets of proceedings were the same or were privies: King’s City Holdings Ltd v De Monsa Investments Ltd [2013] 4 HKC 450 at §39 (Fok JA as he then was), China North at §52.

115.  Once an abuse in the aforementioned forms is established, there is no need to demonstrate any other special circumstances: King’s City at §44.

116.  The issue of whether there is an abuse is a fact-sensitive one which calls for a broad, merits-based assessment in which the court is concerned with balancing the interests not just of the litigants before it, but also other interests involved in the administration of justice: Ko Hon Yue at §83(5), Yifung at §14.

117.  In determining whether there is an abuse of process, the following factors are relevant:

(1)  Whether the impugned claims involve an attempt effectively to overturn or advance a collateral attack on the earlier proceedings: China North at §§59, 61, 70, 73, Healthy Living Products International Ltd v Murray [2012] 1 HKLRD 49 at §49 (Fok JA).

(2)  Whether the causes of action in the two sets of proceedings are based on the same factual matrix: Yifung at §22.

(3)  Whether and to what extent the two sets of proceedings involve the same or similar evidence.  In this regard, the fact that the parties to the earlier proceedings were prevented from adducing certain evidence by virtue of the trial judge’s case management powers should not be taken into account: King’s City at §§64, 73.

(4)  Whether the relief sought in the two sets of proceedings is similar: Lam Sik Ying v Lam Sik Shi (unreported, HCA 4713/2001, 13 November 2017) at §25.

(5)  Whether the party raising the impugned claims was involved in or had knowledge of the earlier proceedings: Healthy Living Products International Ltd v Murray at §§53-59.

C1.2.2  Discussion

118.  Even if, contrary to the findings above, the doctrine of res judicata is not engaged for whatever reason in the present application, I agree that paragraphs 32 to 100 of the SOC in these proceedings should still be struck out on the ground of abuse of process, as Lu could and should have raised such claims in Madam Lo’s Actions.

119.  As mentioned in the section on privity above, Lu has the same direct and parallel interest as that of Madam Lo in the relevant subject matters in Madam Lo’s Actions: see Section C1.1.5a above.

120.  In light of his close involvement in the preparation and conduct of Madam Lo’s Actions, he also knew full well that decisions on the part of the Trustee which he disagreed with, such as its decision not to purchase additional GE shares and decision to act as trustee of the KSL Trust, would form the subject matter of the trial in Madam Lo’s Actions: see Section C1.1.5c above.

121.  In the circumstances, if Lu wished to advance his own claims against the Trustees (such as those in paragraphs 32 to 100 of the SOC), he could easily have done so by joining in Madam Lo’s Actions as a plaintiff.

122.  However, Lu chose not to do so.  Instead, he sat on his hands and waited until February 2018 (ie the eve of the trial of Madam Lo’s Actions) to commence the present proceedings, knowing full well that his own claims involve:

(1)  the same essential factual matrix and many of the same legal issues: see Section C1.1.3 above;

(2)  the same factual witnesses and documentary evidence, bearing in mind that:

(a)  in dealing with Lu’s claims, the court will invariably have to hear a fresh round of evidence from (inter alios) Madam Lo, the Children and the staff responsible for administration of the Trust at the material time, such as probably Mr Brent York, Ms Paulina Lau and Ms Anna Poon; and

(b)  the court will also have to deal with much of the same documentary evidence.  In particular, the parties are likely to make a further round of submissions on the proper construction of the Trust Deed, as well as the various letters of wishes from Mr Lo and Madam Lo;

(3)  claims for the same relief: see paragraph 91 above.

123.  As a result of Lu’s conduct, the Trustee now finds itself in the invidious position of having to defend itself twice against highly similar claims, even though it already put all of the Children on notice of Madam Lo’s Actions with the intention of preventing this very scenario from happening: see paragraph 31 above.

124.  I agree that is manifestly unfair to the Trustee and plainly constitutes unjust harassment, particularly when one takes into account the following factors:

(1)  If Lu’s claims are allowed to proceed, the Trustee would have to incur huge costs (both in terms of time and money) to defend itself for a second time.  This court has first-hand knowledge of the time and effort it would take to trawl through all of the evidence and arguments for a second time.

(2)  The Trustee would also be subject to a significant disadvantage in these proceedings, in that Lu would have advance knowledge of all of the evidence and arguments which the Trustee has already deployed in Madam Lo’s Actions, while the Trustee would not have corresponding knowledge about Lu’s case.

125.  If the Overlapping Claims are allowed to proceed, the administration of justice would also be brought into disrepute, in that the same constitutes collateral attack on the Judgment:

(1)  Given the similarity in the factual matrix and the way the Overlapping Claims are pleaded, any ruling in favour of Lu on the Overlapping Claims will invariably be inconsistent with the corresponding rulings in the Judgment.

(2)  For example, assume the court rules in Lu’s favour and finds that the Trustee breached its duty to purchase additional GE shares in order to preserve the Trust’s alleged controlling shareholding in GE.  Such a ruling would necessarily be inconsistent with this court’s findings in the Judgment as summarised in paragraph 46 (1) to (7) above.

(3)  Further, if the Overlapping Claims are allowed to proceed, Lu will invariably have to challenge or undermine the findings which this court has already made in relation to some of the causes of action and/or issues that the Trustee is seeking to strike out.  This will clearly constitute a collateral challenge of the Judgment.

126.  For the reasons stated above, Lu’s decision to advance the claims set out in paragraphs 32 to 100 of the SOC constitutes a clear abuse of process.  Those parts of the SOC should be struck out.

127.  As submitted by the Trustee, the Trustee’s case on abuse of process is straight-forward:

(1)  The Overlapping Claims are brought by Lu and Madam Lo in their capacity as eligible beneficiaries of the Trust.  They have the same direct interest in the outcome of the Overlapping Claims.

(2)  Because of Lu’s close involvement in the preparation and conduct of Madam Lo’s Actions, Lu could have easily advanced his own claims as a co-plaintiff in Madam Lo’s Actions when HCA 3246/2016 was commenced in December 2016.

(3)  Lu should have joined as a co-plaintiff to advance the Overlapping Claims because such claims are based on the same factual matrix and involve the same legal issues.

(4)  Allowing the Overlapping Claims to proceed will have the consequences of (a) bringing the administration of justice into disrepute because Lu would be allowed to challenge or undermine the various findings in the Judgment in relation to the Overlapping Claims and (b) vexing the Trustee unnecessarily twice to defend itself in the same complaints and to incur the time and resources to do so.

128.  It is completely artificial for Lu to suggest that he could only consider being joined in Madam Lo’s Actions in September 2018 when the pleadings in Madam Lo’s Actions were closed.  There is undisputed evidence that Lu was closely involved in Madam Lo’s complaints against the Trustee even before Madam Lo commenced her action in December 2016.  It is for this reason that the court’s reasons for disallowing KS to join in Madam Lo’s Actions are not relevant in this strike out application: the circumstances surrounding KS’s Joinder Application are fundamentally different to those applicable to Lu and it is unrealistic to Lu to submit that he could only consider being joined in October 2018 when KS made his joinder application (ie 4 months after the trial in Madam Lo’s Actions had started).

129.  As to all the steps that Lu now says the Trustee should have done at the material times (namely making applications to join Lu, under Order 15, rules 13 and 13A RHC, and for consolidation), they have already been dealt with in the Trustee’s Skeleton, specifically:

(1)  Lu’s reliance on the passage in Hong Kong Civil Procedure 2020 Practice Note 15/4/3 on why he could not be joined is misplaced. 

(a)  Madam Lo and Lu would be bringing the 3 Overlapping Claims in their capacity as eligible beneficiaries of the Trust and there is no conflict of interest between them in their pursuit of the claims.

(b)  The fact that Madam Lo also brought claims for the entire trust funds to be distributed to her as one of the alternative claims would not pose a problem. This is because Lu’s position has always been that he would support Madam Lo (see, for example, Lu’s support letters written on 25 April 2016 and 2 June 2016).  If Lu became one of the co-plaintiffs in Madam Lo’s Actions, he and Madam Lo would not be taking any inconsistent steps.

(c)  As far as legal representation is concerned, there is nothing to suggest that Lu was unsatisfied with the quality of Madam Lo’s legal representatives.  Nor is there any evidence to show that Lu had wanted to join as a co-plaintiff in Madam Lo’s Actions but was unable to do so because of the difference of views of Madam Lo’s lawyers and his own lawyers as to how the claims should be pursued.  This is only an afterthought on the part of Lu.

(2)  Lu’s argument that the Trustee ought to have applied for representation orders under Order 15, rule 13 is fundamentally inconsistent with his argument under the Order 15, rule 14 application, namely that the Trustee could not and did not represent Lu’s interests.  In any event, it would not have been sensible for the Trustee to apply to represent Lu when it knew that Lu supported and shared Madam Lo’s views.

(3)  Lu submitted that the burden was on the Trustee to take steps to avoid Lu’s own abusive step of commencing vexatious proceedings involving a collateral attack on an earlier judgment, but has cited no authority to support the contention.  Lu orally referred to 2 paragraphs in the Judgment of Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748 but that case certainly does not lay down any legal principles relevant to this strike-out application.  It was a decision based on the particular facts of that case.  Lu referred to §§21 and 22.  In those paragraphs, Thomas LJ referred to the previous correspondence made by Aldi to other parties (including WSP and Aspinwall) expressing reserving its position to commence proceedings in the future.  This was one of the factors which led his Lordship to conclude that Aldi did not commit an abuse of process when it subsequently commenced proceedings against WSP and Aspinwall.  This was also the view of Longmore LJ (see §39).  It is impossible to extract any legal principles from what Thomas LJ said in §§21 and 22.  The English Court of Appeal certainly did not lay down any principle to require a party to speak out and forewarn his opponent before he can make a complaint that his opponent has abused the process of the court in making a claim that could and should have been made in earlier proceedings.

130.  Finally, Lu’s waiver and estoppel arguments are highly unmeritorious. 

(1)  The Trustee has not pleaded the doctrine of res judicata in its Defence in these proceedings but it does not mean that it has waived its right to rely on it.  The Trustee could not have pleaded the doctrine when the Defence was filed on 25 May 2018 because there was at that time no earlier judicial decision or any final determination of any issues.  It was completely unrealistic to expect the Trustee to amend its Defence after the Judgment was handed down on 22 May 2019 given that Lu was informed in June 2019 that the Trustee would apply to strike out the Overlapping Claims.

(2)  None of the statements relied upon by Lu can be said to constitute a clear and unequivocal representation of the Trustee that the Trustee would not rely on the res judicata or abuse of process against Lu in these proceedings. It cannot therefore be said that the Trustee is now estopped from relying on these doctrines to strike out the Overlapping Claims. 

(3)  Lu’s argument that the defendants’ timetabling questionnaires create an estoppel by convention which bars them from pursuing the present strike out applications is also a bad one.  The timetabling questionnaires clearly do not amount to a representation (let alone a clear and unequivocal representation) that the defendants would not take out any strike out application.  The timetabling questionnaires did not mention any strike out application because it was not open for the defendants to take out a strike out application on the ground of res judicata before the Judgment was handed down.  Instead, the normal procedure is for the defendants to plead res judicata and take out the strike out application after final judgment in respect of the overlapping issues is handed down.

C1.3  Conclusion on the Trustee’s Strike Out Application

131.  For the foregoing reasons, I would strike out paragraphs 32 to 100 of the SOC.

C2.  KS’s Strike Out Application

C2.1  Abuse of Process

132.  As regard KS, res judicata in the strict sense does not apply as KS is not a privy of the Trustee.  Hence, KS’s position is as formulated in paragraph 6 above.

C2.1.1  The relevant legal principles

133.  In addition to the legal principles already set out at paragraphs 110 to 117 above, KS pointed out as follows.

The configuration of parties under the Henderson doctrine

134.  As noted in paragraph 116 above, the starting point is that the test for Henderson abuse is a broad merits-based judgment which takes account of public and private interests involved.

135.  The position in Hong Kong and under English law is that there is no hard and fast rule as what configuration of parties would render later proceedings abusive.  The proposition that “the doctrine can apply where the claimant or the defendant or both are different” is well supported by authority: see Spencer Bower and Handley on Res Judicata (5^th ed) §26.15 at footnote 8. 

Privity

136.  Firstly, in order for a party to fall within the Henderson doctrine, it is not necessary for him to have been a litigant in the prior proceedings in which it is said that certain issues should and could have been advanced. Rather, it is sufficient that he has a “privity” with the litigant, which means “a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party”: see Johnson v Gore Wood & Co [2002] 2 AC 1, at 32D-G.

137.  As Lord Bingham observed on the facts of Johnson, there is a sufficient privity of interest where a company director made decisions and gave instructions on behalf of the corporate litigant and so was a position to control the proceedings, for example by including his own personal claim in that of the company: see p 32D.  Whether such privity exists in a particular case is of course a fact-sensitive question.

138.  Privity can also be constituted where, given their commonality of interest, it may be an abuse of process for a party who has played an active role in certain proceedings and could have sought to be joined into those proceedings to commence another action against the defendants (see: Healthy Living Productions International Ltd v Murray [2012] 1 HKLRD 49 at §§40, 54-60).  In other words, the courts may find privity due to Lu’s active participation in Madam Lo’s Actions. 

139.  KS’s position is that there was a sufficient privity of interest between Lu and Madam Lo in Madam Lo’s Actions such that Lu was Madam Lo’s privy, and that the Henderson doctrine of abuse applies to the current action.  Given the commonality of the issue, KS adopts the Trustee’s submissions in respect of privies. 

Abuse against witnesses

140.  Separately from the point on “privies”, the Henderson doctrine can be invoked by non-parties, including witnesses, to the prior litigation that is said to ground the abuse.

141.  In Lee Ming Mang Sharon v Ng Siew Seng Richard(unrep, HCA 1536/2006, 30 April 2009, per DHCJ Carlson), the plaintiff was an ex-wife who claimed a beneficial interest via constructive trusts in two properties whose legal owners were the ex-husband, his brother and a company.  The properties had been the subject of ancillary relief proceedings in a prior divorce suit, but the plaintiff had withdrawn her claim in return for the ex-husband’s contribution to her costs in those proceedings, only to reinstitute essentially the claim against the ex-husband in the High Court action taken out days later, and naming the brother and the company (who had not been parties to the divorce suit) as additional defendants.

142.  The court applied the English cases of Barrett v Universal Island Records Ltd [2006] EWHC 1009; [2006] EMLR 21 and MCC Proceeds Inc v Lehman Brothers International (Europe)[1998] 4 All ER 675 in holding that the new claim brought by the ex-wife was abusive in the Henderson sense, notwithstanding the fact that the brother and the company had not been defendants in the prior divorce proceedings: §§39 and 43.

143.  Specifically, DHCJ Carlson held:

“There is no question whatsoever that the issues raised by [the ex-wife] in her ancillary relief application include precisely the same issues that are raised in this action. Although [the brother] and [the company] were not made parties to the ancillary relief application both were clearly sufficiently interested in the subject matter of the application to have been allowed to intervene but, more importantly, both should have been served with her application by [the ex-wife]. The Family Court would not have been able to proceed without giving [the brother] and [the company] a chance to state their cases. In such circumstances, there is nothing in the point that the parties are different in this case.” (see §40)

144.  MCC Proceeds Inc cited in Lee Ming Mang Sharon involved a conversion claim in respect of shares.  The plaintiffs were the assignees of the rights to certain shares belonging to one Macmillan Inc which had initially transferred the shares to an investment trust under an agreement.  In breach of that agreement, the shares were pledged to the defendant LB, and then sold onwards by LB to its holding company SL.

145.  A claim had initially been brought by Macmillan Inc against SL asserting ownership over some of the dissipated shares, but this claim failed because SL was found to be a bona fide purchaser for value.  The claim in MCC Proceeds Inc was then brought by the plaintiff as assignee (standing in Macmillan’s shoes), but this time against the defendant LB and in conversion.

146.  The court held (at p 693g) that although the claims and parties in the two actions were different, this was “an oversimplification of the legal position” and that “the essential factual basis of the claims is the same in both cases”, thus bringing the case within the Henderson v Henderson principle.  Pausing here, so too are the essential factual basis of the claims the same in Madam Lo’s Actions and the present action.

147.  Indeed, the claim was held to have been abusive because:

(1)  The conversion argument had actually been pleaded and run by counsel for Macmillan in the trial of the first action, but it was abandoned after the judge expressed his doubts as to its viability in the hearing (see p 694 a–f);

(2)  The two claims, although ostensibly based on different causes of action, were ultimately based on the same factual matrix and in fact success in one would have meant success in the other, since both claims could only be made good if title had never passed initially (see p 694h);

(3)  Macmillan (and by extension the plaintiff) had known all along of LB’s opposing interest and the possibility of making a claim against it in the first action (p 695b – c).  In order to advance the first claim against SL, it had to adduce evidence and argument about LB’s role in the share transfer and call witnesses from LB (see p 695e – f);

(4)  Having known of LB’s opposing interest and the existence of a potential claim against it all along, there was no valid reason for Macmillan (and by extension the plaintiff) not to join LB to the first action, so that all the claims relating to the title in the shares could be decided in the same action and bind all interested parties (see p 696b – c).

148.  The second English authority of Barrett cited in Lee Ming Mang Sharon above involved two claims brought inter alios by Aston Barrett, a member of Bob Marley’s band “The Wailers”, against the defendant music companies holding the rights to certain recordings made by the Wailers.

149.  Barrett had brought an initial claim against the companies on the basis that the Wailers were a partnership, and that Bob Marley had entered on all the partners’ behalf into certain agreements with the companies thus entitling Barrett to payments for the use of jointly composed songs.  This claim was settled.  He then brought a second claim (ie the claim in Barrett) on two grounds: first, that Bob Marley had entered into the said agreements as his agent (as opposed to partner), and second, that the companies had infringed his copyright to the recordings in question.

150.  The court found that it was an abuse of process to bring the second claim:

(1)  The partnership and agency arguments were founded on the same dealings between the parties and it was therefore a collateral attack on the settled action “to bring a further claim applying a different legal analysis to the same underlying facts”: see §196.

(2)  Further, although the issue of copyright had not been pleaded in the first action, evidence was adduced in respect of the issue and Barrett plainly could have raised it in the first action had he wished to.  He did not do so, and it was therefore abusive for him to do so in the second action: ibid.

151.  Further, as Spencer Bower and Handley on Res Judicata(supra) notes, the Henderson doctrine can be invoked for the protection not only of parties, but also of witnesses: see §26.12.

152.  In the Malaysian case of Dr Aishah Hussin v Dr Suresh Kumarasamy[2014] 5 AMR 335, the plaintiff Dr Aishah was a doctor and the owner of a maternity clinic who had first been sued for medical negligence, by a patient whose placenta had been retained inside her uterus after delivery.  This mistake led to the patient’s transfer to Hospital Pulau Pinang where the doctors (“HPP Doctors”) had to remove her uterus.  The HPP Doctors testified for the plaintiff against Dr Aishah in the first suit, while Dr Aishah made the counter allegation that it was in fact the HPP Doctors who had been negligent and caused the patient’s condition.

153.  After trial, the court rejected the allegations of negligence made against the HPP Doctors and found Dr Aishah fully liable.  That decision was not challenged on appeal.  Dr Aishah then brought the second action to claim indemnities or contribution from the HPP Doctors based on the same allegations of negligence which had been made by her in defending the claim against her and were rejected by the court in the first action.

154.  The court found (at §71) that the second action was an abuse of process under the extended res judicata doctrine, notwithstanding the fact that the defendants had only been witnesses in the first action.  This was because:

(1)  While it was true that a finding of negligence in the first action could not have bound the HPP Doctors as witnesses and there was thus no risk of liability resulting from such a finding, their competence had nonetheless been challenged: see §72.

(2)  Since her case in the first action turned on the question of whether the HPP Doctors had been negligent, Dr Aishah should “as a matter of fairness, fairplay and justice…have joined HPP and its doctors either as third parties or co-defendants in the first suit”: see §76.

(3)  It was therefore abusive for Dr Aishah to have brought the second action, with the result that “several years after participating at the trial in the first suit [the HPP Doctors] are faced with a fresh suit where essentially the same issue is being relitigated coupled with a variety of other allegations made in order to challenge their competence and integrity”: see §75.

155.  The rationale for enabling witnesses in prior proceedings to rely on the Henderson doctrine is obvious.

156.  From a public interest perspective, such duplication of proceedings is a waste of precious court time and resources.  That is in addition to the risk of inconsistent findings which threaten to bring the administration of justice into disrepute.

157.  From a private interest perspective, too, it is highly vexatious and oppressive to the witness: not only in terms of time and costs, but also in that the “dry-run” of the claim in the prior proceedings (for example by the plaintiff’s ability to cross examine the witness) affords the plaintiff an opportunity to refine his case and work around any defence, evidence or explanation that the witness (now the defendant in the subsequent action) has put forward.

Other forms of abuse - collateral attack

158.  Further, it may also be abusive for a party to initiate legal proceedings which constitute a collateral attack upon a final decision made against that party by another court of competent jurisdiction where the party had full opportunity to contest the decision, if the pursuit of the same issue in the new proceedings would result in manifest unfairness or bring the administration of justice into disrepute amongst right-thinking people.  See Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536C, 541B-C & 542C-D.  As explained by Stock JA in China North, Supra, at §§57-58:

“…in Hunter v Chief Constable of the West Midlands Police Lord Diplock said that:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

58. To view that statement as one that treats all collateral challenges as abusive of the court’s process is to view it in isolation and to disregard the earlier passage to which I have referred in which Lord Diplock expressly referred to the two conditions precedent to the exercise of the power. As Lord Hoffmann explained in Arthur JS Hall & Co v Simons:

I do not think that [Lord Diplock] meant that every case falling within this description was an abuse of process or even that there was a presumption to this effect which required the plaintiff to bring himself within some exception. That would be to adopt a scheme of categorisation which Lord Diplock deplored.

The same interpretation of their Lordships’ intent in Hunter v Chief Constable of the West Midlands Police is to be found in Walpole v Partridge & Wilson. For the propositions that a collateral challenge may be but is not necessarily an abuse of process; and that where the parties to the later proceedings were not parties or privies of those who were parties to the earlier proceedings, a collateral attack will only be an abuse if one of the two conditions (manifest unfairness or the bringing of justice into disrepute) is demonstrated, see also Secretary of State for Trade and Industry v Bairstow.” (emphasis added).

159.  The correctness of the decision (against which the collateral attack is made) is not relevant and it binds the parties until such time as it is set aside on appeal: China North at §48.

Henderson abuse and collateral attack – summary

160.  As submitted by KS, the following principles can be distilled from the above authorities:

(1)  Whether a claim falls foul of the Henderson doctrine of abuse requires the application of a broad, merits-based test and close scrutiny of the facts;

(2)  It is no answer to say that the causes of action in the two claims are different, if they arise out of substantially the same facts;

(3)  Nor is it a bar to a finding of abuse that the parties in the two actions are different.  In particular:

(a)  A party may be bound by the Henderson doctrine because he is deemed by virtue of privity of interest as having been the litigant in a prior action; and

(b)  A witness in a prior action may also raise Henderson abuse as a defence when a claim is brought against him in respect of substantially the same issues;

(4)  Although the application of the doctrine is necessarily fact-sensitive, factors that have been identified in the case law as supporting a finding of abuse include:

(a)  Where a party could have been joined as a defendant to the earlier action, especially if the claims arise from the same underlying facts;

(b)  Where the plaintiff knows of the opposing interest of and/or has evidence against a witness in a prior action but fails to join him to the same, only to raise a fresh claim later in respect of the same issues; and

(5)  A claim can also amount to an abuse where it constitutes a collateral attack against a final decision.

C2.1.2  Application of the legal principles to the case regarding KS

C2.1.2a  Linked Issues

161.  The issues raised in the portion of the SOC targeted in the Trustee’s Strike Out Application (“Trustee’s Strike Out Sections”) and those targeted in KS’s Strike Out Application (“KS’s Strike Out Paragraphs”) can be categorised as follows:

(1)  Issues already raised and decided in Madam Lo’s Actions (“Raised Issues”);

(2)  Issues that could and should have been raised in Madam Lo’s Actions (“Raiseable Issues”).

162.  At paragraph 149 of the SOC, Lu pleads against KS that, as a result of his “inappropriately close relationship” with the Trustee, KS has failed to give due consideration to various alleged breaches of duty by the Trustee raised by Lu in the Trustee’s Strike Out Sections.

163.  As I have already ruled above that the Trustee’s Strike Out Application succeeds, this means that the court is satisfied that the issues raised by the Trustee’s Strike Out Sections are Raised Issues and/or Raiseable Issues and would constitute an abuse if argued in the present action vis-à-vis the Trustee.  I agree that this has knock on repercussions on the claim against KS in this action as follows.

164.  Sections D to G are struck out as against the Trustee (ie the claims against the Trustee for breach of trust): in this case those allegations can no longer be pursued against the Trustee.  In these circumstances, it is plainly vexatious and oppressive and or otherwise abusive for Lu to be allowed to raise those issues against KS for the sole purpose of demonstrating his failure to have regard to them in his capacity as Appointor and Guardian of the Trust:

(1)  The allegation that KS failed to have due regard to the alleged breaches under the Trustee’s Strike Out Sections is a Raiseable Issue: it plainly could have been made by Madam Lo/Lu in Madam Lo’s Actions in their capacities as beneficiaries under the Trust;

(2)  For Lu to pursue this Raiseable Issue now means that the issue of the Trustee’s breach (which cannot be run against the Trustee in this action) will have to be re-argued in full with a massive duplication of effort and the resultant waste of costs and time. 

(3)  It also carries the risk of inconsistent judgment.  The reality is that Lu can only succeed on these issues against KS by securing a judgment which is factually inconsistent with the Judgment in Madam Lo’s Actions.

(4)  Where the Trustee is successful in striking out the allegations in Sections D to G against itself, it would be an abuse for Lu to continue to pursue the claims that KS should have taken action on the basis of the breaches alleged in Sections D to G, because those claims have no reasonable chance of success.  In those circumstances, the Judgment in Madam Lo’s Actions stands as a definitive judicial finding (as it does and it must) that the Trustee did not commit the alleged breaches.  It cannot be said that KS was in breach of duty by failing to take action in respect of alleged breaches of duty which this court, after a full trial, has already decided did not exist; nor can it seriously be argued that KS should be removed from office because he took the view that the breaches had not occurred, if that view is shared by this court.  It is a classic case of a collateral attack against prior judgment (in favour of the Trustee) in the guise of an action against a different party (KS). 

(5)  Finally, as noted in paragraphs 162 and 163 above, the words “D, E, F, G” in paragraph 149 of the SOC are also Raised Issues; 

(6)  It would be a clear case of abuse for Lu to be allowed to re-litigate the issues in the Trustee’s Strike Out Sections against KS in the current action, despite Madam Lo/Lu having already done so once against the Trustee in Madam Lo’s Actions and failed.

165.  Separately, where the Trustee strikes out Sections D to G but Lu still wishes to pursue KS, it is still (or potentially more) abusive to the Trustee for Lu to pursue the allegations in Sections D to G for the purpose of establishing a breach of duty claim against KS.  If these sections are struck out, it would be unjust to the Trustee to have the same allegations of its alleged breach of duty pursued in the context of a claim against another party.  The Trustee would end up having to put up witnesses to defend itself for reputational reasons, and would be deprived, as a practical matter of fact, of the benefit of its own strike out.

166.  In summary, I agree that as the Trustee has succeeded in striking out the whole of Sections D, E, F and G of the SOC, the words “D”, “E”, “F” and “G” in paragraph 149 of the SOC should similarly be struck out against KS because they are premised squarely on Raised Issues and/or Raiseable Issues and are for that reason abusive. 

C2.1.2b  Alleged threat posed by KS’s GE shareholding to the Trust

167.  Lu pleads at paragraphs 135 to 137 of the SOC that KS has been in a position of actual conflict of interest as Appointor and Guardian of the Trust inter alia because of his positive accumulation of a “competing shareholding block” in GE and his, corresponding, failure to direct the Trustee to increase its shareholding in GE.

168.  Again, the allegation of a “competing” shareholding block that would threaten the Trust’s interest and position is a Raised Issue.  Having had regard to the reasons given by KS for his regular purchase of GE shares, this court found on the facts that “KS in any event did not pose ‘a threat’ to the Trust’s shareholding or interest in GE”: see Judgment §§306 – 309.

169.  Having regard to the principle in paragraph 160(4)(a) above, to allow Lu to re-litigate this Raised Issue now would be a clear abuse of process.

170.  Moreover, having regard to the principles in paragraph 160(5) above, the present attempt to re-run this Raised Issue constitutes a collateral attack on the Judgment, because:

(1)  While strictly speaking KS is not bound by the Judgment, many of the allegations of wrongdoing directed against the Trustee in Madam Lo’s Actions expressly or implicitly impugned the conduct of KS, for example, the alleged threat that KS’s GE shareholding posed to the Trust and the allegation of an inappropriate relationship between KS and the Trustee which, although only deployed against the Trustee in Madam Lo’s Actions, is in reality an allegation of wrongdoing against KS as well (see Judgment §§ 303 and 445);

(2)  Those factual allegations are Raised Issues, and it is obviously a collateral attack against the Judgment to re-open them in the present action vis-à-vis KS in the same way that it would be had they been re-litigated against the Trustee.  The reasoning is simply that they involve the same allegations of concerted wrongdoing which by their very nature cannot be raised against one member of a group of alleged wrongdoers to the exclusion of the other members;

(3)  Furthermore, any collateral attack on the Judgment obviously runs the risk of leading to inconsistent judgments and/or findings of fact; and

(4)  To allow this collateral attack would therefore not only be manifestly unfair to KS, but also brings the administration of justice into disrepute: China North §59.  The wider circumstances surrounding Lu’s collateral attack on the Judgment show plainly that it is an abuse of process.

171.  Further, it is clearly abusive for Lu to be allowed to mount a dry-run of his case through the cross-examination of KS in the Prior Proceedings, thereby fine-tuning and perfecting his case for the present action: see paragraphs 157 and 160(4)(b) above.  It is also abusive from an administration of justice perspective: see paragraph 156 above. 

C2.1.2c  Alleged loss to the value of the Trust’s GE shareholding

172.  Finally, by paragraphs 138.3, 138.4, 138.6, 140.3, 140.4, 140.6 and 142 of the SOC, Lu essentially seeks to resurrect more Raised Issues, namely the argument that the Trust has suffered loss as a result of the acquisition by KS (both personally and indirectly) of GE shares, although in this part of the SOC it is framed as a breach of fiduciary duty by KS rather than the Trustee.

173.  As noted in Section C2.1.2b above, the issues of acquisition by KS of GE shares and the alleged reduction in value of the Trust’s shareholding due to KS’s acquisition of a “competing” shareholding was squarely raised and also fully explored in Madam Lo’s Actions.  KS’s motives for acquiring his shares was also considered by this court after extensive cross-examination of KS and finally determined.  These allegations were resoundingly dismissed by the court (the “complaint that the GE shareholding of KS himself posed a threat to the Trust, which for the reasons set out herein, is wholly devoid of merit and must be rejected”: Judgment at §314).

174.  So far as the issue of whether the value of the Trust’s shares had been reduced as a result of KS’s direct and indirect acquisition of his own block of shares was concerned:

(1)  Before the trial, the only reference in the pleadings to the value of the Trust’s shareholding being impaired as a result of KS’s actions was in the Re-Amended Reply.

(2)  Madam Lo made an application by summons dated 20 May 2018, inter alia to have the Trustee’s failure to take account of the loss of value of the Trust’s “controlling interest” incorporated into the SOC. 

(3)  Madam Lo’s application was granted on Day 4 of the trial, on the basis that the amendments merely wrote into the Re-Amended SOC allegations which had already been raised in the Re-Amended Reply (see in particular §52(4) of the Re-Re-Amended SOC, and the cross references there to the Re-Re-Amended Reply). The centrality of the issue of the loss in value of the Trust’s shareholding to Madam Lo’s Actions is best illustrated by Madam Lo’s written opening.  Madam Lo’s position in Opening was that it was not necessary to call expert valuation evidence because the loss of value was.  It was only later that she seems to have come to the view that expert evidence would be needed. 

175.  This is a case where an issue was raised in the first action, but then not pursued, apparently for lack of evidence.  If Lu is a privy to Madam Lo, then he can obviously be in no better position than Madam Lo to resurrect the issue, with or without additional evidence, in later proceedings.

176.  This disposes of Lu’s attempt to distinguish this action from the Madam Lo’s Actions by arguing that the findings in Madam Lo’s Actions, for example in respect of the control or value premium of the Trust’s GE Shares, were made against the background and in the context that there was no expert evidence in Madam Lo’s Actions.  That may be the case, but Madam Lo/Lu’s inability or omission in Madam Lo’s Actions to adduce expert evidence in support of their contention that KS’s acquisition of GE shares threatened the Trust in the specific manner of reducing the “premium value” of the Trust’s shareholding has absolutely nothing to do with KS.  On the court’s reasoning in granting Madam Lo leave to amend, the allegations were already in the Re-Re-Amended Reply and if expert evidence is needed to support those allegations, they could have been sought to be adduced much earlier, which Madam Lo failed to. 

177.  Even if, on Lu’s argument, the lack of expert evidence had any connection with and/or impact on the dismissal of the allegation previously (which KS does not accept), I agree that does not make it any less abusive and/or oppressive for the general issue of KS’s acquisition of GE shares to be litigated twice. 

C2.1.2d  Miscellaneous points

178.  KS’s unsuccessful application for joinder in Madam Lo’s Actions and the reasons therefor has no bearing on Lu’s ability to have joined in as a plaintiff in those Actions.  In the circumstances outlined in the Trustee’s evidence, Lu plainly could have (ie he was able to) included the present claims in Madam Lo’s Actions had he wished to do so.

179.  To Lu’s argument that his proceedings are “concurrent” rather than “subsequent” proceedings and therefore notions of abuse of process do not apply, I accept that his characterisation of the present action as “not subsequent” is wrong for the following reasons.

180.  First, one should consider the relevant time at which any vexation is to be considered.  As G Lam J pointed out in Yifung Developments v Liu Chi Keung Ricky (unrep, HCA 3020/2015, 29 August 2016) at §37, Henderson abuse does not apply where the “earlier proceedings” have not concluded, because:

“…a principal policy underlying the rule against this kind of abuse is that there should be finality in litigation: Johnson v Gore Wood & Co, at p 31A per Lord Bingham. This public interest is generally not engaged where the earlier action is still on-going when the later action comes to be considered. The rule also protects a party from vexation and oppression. It is true that in a proper case the law may protect him, not only from being vexed by successive actions, but also from being oppressed by unnecessary multiple concurrent actions. That however is not the function of the rule in Henderson v Henderson. Ample remedy for the latter is provided by the court’s power to allow amendment of pleadings, and to order consolidation, and other case management powers, in the light of which it must be rare indeed for an order precluding a claim altogether to be an appropriate, proportionate response.”

181.  Thus the law has numerous tools to safeguard a party against duplicative or substantially overlapping claims.  If the “evil” of duplicative or overlapping claims can be remedied by appropriate case management directions including orders for joinder and consolidation, then there is no need for the court to shut out the claim entirely on the ground of Henderson abuse – hence its inapplicability where both sets of proceedings are still on-going. 

182.  However, the situation is different when one set of proceedings has already been concluded.  The trial would have taken place, expenses incurred, arguments rehearsed, evidence given, findings will have been made.  When one considers whether a set of proceedings is “subsequent” and abusive, the relevant time for consideration should be whether the putative “subsequent” proceedings are being pursued (whether by way of commencement or continued pursuit) after judgment is given in the other one (irrespective of the relative filing dates of the originating processes).  On that analysis the current proceedings are obviously “subsequent” to Madam Lo’s Actions, since Judgment after trial (with the relevant findings of fact) has been handed down in Madam Lo’s Actions but the current proceedings are still extant.

183.  This analysis also accords with common sense because where two duplicitous actions proceed towards trial in parallel, it will often be a matter of chance which one is tried first.  In those circumstances, it is entirely arbitrary to say that Henderson abuse would only apply to one of the two actions simply because fortuitously it was commenced earlier.

184.  The fact that certain allegations in Lu’s SOC were made by him first before Madam Lo made her application to amend her claim in 2018 is irrelevant.  This court in 2018 rejected KS’s application for joinder in Madam Lo’s Action on the basis (among other things) that KS made the application too late.  The court held essentially that amendments made in Madam Lo’s Actions (on 1 June 2018 and 15 June 2018) did not introduce “new allegations” since these allegations were already there previously, in the sense that they were already part of the issues in Madam Lo’s Action before the amendments were sought to be introduced (“I agree that these remaining paragraphs are not new issues at all”: p 62 of the Transcript from the Joinder hearing). 

185.  As for Lu’s argument that he is bringing these proceedings in a different capacity to Madam Lo, I agree that this is ill-conceived.  It is the basic right of any beneficiary who sues for breach of trust to have the entire trust fund reconstituted: Lewin on Trusts, 20^th Ed., §41-010.  That is what Madam Lo was asking for in Madam Lo’s Action and it is what Lu is asking for here.  Although Lu tries to argue that he is bringing his claim on behalf of the Trust, Madam Lo was doing the same insofar as she was seeking compensation for breach of trust (see paragraph 46 of Madam Lo’s Re-Re-Amended SOC where it is pleaded that Madam Lo is also suing as an eligible beneficiary), aside from her claim to be entitled to the assets based on the “Common Understanding”.  Lu also says that he is bringing a claim in a fiduciary capacity.  Even on that basis, however, it is not understood what claims Lu has against the Trustee for compensation in that fiduciary capacity.  If Lu indeed says he has such a claim, then it is the same claim for the reconstitution of the trust fund which he has as a beneficiary.  The same conclusion is repeated in respect of Lu’s application for the removal of the Trustee and it is not understood how Lu would have any different cause of action in that regard as an appointor/guardian, as opposed to a beneficiary.

C2.2  Conclusion on KS’s Strike Out Application

186.  For the above reasons, I hold that it is vexatious and oppressive, and/or an abuse of process for Lu to seek to re-litigate in the current action substantially the same issues that were the subject of Madam Lo’s Action.  The present action also amounts to an impermissible collateral attack against the Judgment. 

187.  In the premises, I order that the portions of the SOC set out at paragraph 2(2) above be struck out.

D.  LU’S ORDER 15, RULE 14 APPLICATION

D1.  Application is unnecessary and academic

188.  Order 15, rule 14(1) RHC provides that a judgment in a set of proceedings brought by or against trustees “shall be binding” on a beneficiary unless the court holds otherwise.  Lu now makes an application to rely on the exception in Order 15, rule 14(1) in order to avoid being bound on the ground that the Trustee could not or did not in fact represent his interests in Madam Lo’s Actions.

189.  Lu’s argument in relation to Order 15, rule 14 is based on the contention that the statutory regime under Order 15, rules 13, 13A and 14 (“Procedural Rules”) is a comprehensive code which abrogates or excludes the doctrine of res judicata in the trust context.  Specifically, he argues that (a) if Lu is not a party to Madam Lo’s proceedings, (b) the Trustee fails to obtain a representation order under Order 15, rule 13, and (c) the court grants a positive order under Order 15, rule 14, then Lu cannot be considered to be a privy of Madam Lo.

190.  But the short answer is that the Trustee has not relied on Order 15, rule 14 for the purposes of its application to strike out paragraphs 32 to 100 of the SOC (or indeed as a pleaded defence to any of Lu’s claims against it).  The Trustee does not say that the relevant paragraphs in the SOC ought to be struck out because the Judgment in Madam Lo’s Actions is binding on Lu by virtue of Order 15, rule 14. As Lu rightly acknowledges in his Skeleton Argument, the Trustee only relies on the common law doctrines of res judicata and abuse of process in support of its strike-out application.

191.  In the circumstances, it is wholly unnecessary and academic for the court to determine whether the Trustee should be precluded from relying on Order 15, rule 14.  Lu’s application to rely on the exception in O 15, rule 14 is thoroughly misconceived.  It is an unnecessary distraction and is a blatant attempt to divert attention from the real issues in the strike-out applications.

192.  The Order 15, rule 14 Application should be dismissed on this ground alone.

D2.  The Trustee need not rely on Order 15, rule 14 to bind Lu

D2.1  Lu’s arguments

193.  Lu’s argues that the Procedural Rules constitute a “comprehensive scheme governing joinder of parties and binding force of judgments in actions relating to property subject to a trust” and the Procedural Rules “therefore abrogate and/or modify the common law rules of res judicata in determining the binding and non-binding effect of judgments and orders in such proceedings”.  He further argues that “the common law doctrine of privity of interest as it applies in respect of res judicata…has been abrogated and/or modified by the operation of … [the Procedural Rules]”. 

194.  As explained below, I agree that these arguments are wholly without foundation and support.

D2.2  Procedural Rules not intended to exclude operation of Common Law Doctrines

195.  The starting point is the established presumption that statutes will not cut down the common law unless the legislature indicates either expressly or by necessary implication that the statute is intended to do so: Bennion on Statutory Interpretation (7^th ed, 2017) at Section 25.6, R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539 at 573, Re John Charles Cole Jr (unrep, HCMP 1311/2005, 25 July 2005) at §10.

196.  There is nothing in the express language of the Procedural Rules which suggests that those provisions were intended to exclude or limit the operation of Common Law Doctrines.  Lu does not suggest otherwise in his submissions.

197.  That leaves the necessary implication limb.

198.  The meaning of the term “necessary implication” was explained by Lord Hobhouse in R (Morgan Grenfell) v Special Commission[2003] 1 AC 563 at §45:

“…A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”

199.  In determining whether this requirement is satisfied, Bennion at Section 25.9 provides the following guidance:

(1)  There is nothing to prevent statutory and common law rules co-existing in the same area.  The mere existence of statutory rules governing a certain area does not necessarily point towards an intention to displace the common law rules in the same area.

(2)  Instead, the courts should consider the extent to which the legislative purpose of the statute would be undermined by the common law continuing to operate alongside it.

200.  The reason why the Procedural Rules and the Common Law Doctrines both exist is because they have different historical origins.  The Procedural Rules and their predecessors (such as the rules in Order XVI of the Rules of the Supreme Court 1883) originated from the practice of the Courts of Chancery (see for example: John v Rees [1970] 1 Ch 345 at 369G-370E (Megarry J); Handley QC Estate and trust litigation, including avoidance planning (2014) 20 Trust & Trustees, 178), while the doctrine of res judicata (originally known as estoppel by record) was a creature of the common law (see for example: Thoday v Thoday [1964] P 181 at 197-198 (Diplock LJ); First National Bank plc v Thompson [1996] Ch 231 at 236 (Millett LJ)).

201.  However, both sets of principles pursue the same underlying policy objectives:

(1)  The policy objectives underpinning the common law doctrines of res judicata and abuse of process are to protect (a) the interest of the community in the termination of disputes and the finality of judicial decisions, and (b) individuals from vexatious multiplicity of suits: see China North, Supra at §47 (Stock JA) and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 at §§24-25 (Lord Sumption).

(2)  Similarly, the purpose of representation orders under Order 15, rules 12 and 13, as well as notices of actions under Order 15, rule 13A, is also to ensure the presence of all parties interested in the matter in suit, so that “a final end might be made of the controversy”: John v Rees [1970] 1 Ch 345 at 369G-370E (in relation to representation orders), Duke of Bedford v Ellis [1901] AC 1 at 8, Handley QC’s article (above) at 178.

(3)  In this regard, Lu’s claim that the Procedural Rules were intended to avoid the risk of individuals being “inadvertently bound under the privity doctrine” is incorrect.  That proposition does not appear anywhere in the authority which he cites in support, namely Duke of Bedford v Ellis.

202.  After the fusion of equity and the common law, these two sets of principles now operate in tandem to give effect to such policy objectives.  More specifically, the Procedural Rules give effect to the abovementioned policy objectives by ensuring that trust litigation can bind even those beneficiaries who are not caught by the doctrine of res judicata. This was explained by Kenneth R Handley QC at 178:

“These rules [ie rules relating to joinder and representation of interested beneficiaries] were adopted by the Court of Chancery to ensure that trust litigation achieved finality, subject only to a possible appeal. This was necessary to prevent the issues being relitigated by beneficiaries who were not parties to the earlier proceedings, and were not bound by the earlier decision as res judicata…These principles continue to apply after the Judicature Acts and they remain relevant today.” (emphasis added)

203.  There is therefore no inconsistency or conflict between the Procedural Rules and the Common Law Doctrines.  Indeed, they complement each other.

204.  The same complementary relationship between common law and equitable doctrines governing the same subject matter can be seen in many other areas of law.  For example, estoppel by representation (developed at common law) and proprietary and promissory estoppel (developed by the courts of equity) all share similar characteristics: Snell’s Equity (34^th ed, 2020) at §§12.005-12.007.  But one would never say that one type of estoppel would abrogate or modify another.

205.  In the circumstances, the contention that the Procedural Rules were, as a matter of necessary implication, intended to abrogate or modify the Common Law Doctrines does not even begin to get off the ground.

206.  In any event, Order 15, rule 14 in general terms is about whether a judgment or order involving a trustee should be binding on a beneficiary and is irrelevant in determining whether Lu and Madam Lo, who are both beneficiaries, have a privity of interest.  As observed by this court during oral submissions, Order 15, rule 14 says nothing about whether beneficiaries amongst themselves have a privity of interest. 

207.  For the reasons stated above, Lu’s application under Order 15, rule 14 RHC is dismissed.

E.  LU’S APPLICATION TO AMEND HIS STATEMENT OF CLAIM

E1.  Regarding the Trustee

208.  The Trustee opposes a number of the proposed amendments to the claims against it on the ground that they are ancillary to or form part of one or more of the Overlapping Claims (ie paragraphs 32 to 100 of the SOC) which are liable to be struck out for the reasons stated in Section C1 above.

209.  The relationship between the relevant proposed amendments and the Overlapping Claims is set out in the following table:

Claim	Currently pleaded in SOC	Relevant proposed amendments
Controlling Shareholding Claim	§§32-63	§§2, 30, 32, 34, 35, 36, 39A, 39B, 40, 41, 41A, 42, 43, 43A, 43B, 44, 46A, 47A, 49, 49A, 50,  50A, 50B, 50C, 50D, 50E, 50F, 50G, 54, 56, 57, 58, 59, 59A, 59B, 59C, 59D, 59E, 59F, 60, 61, 63, 63A, 63B, 63C, 63D, 63E, 63F, 63G, Prayer §§4(A) and (5)
AGM Claim	§§64-67, 78-100	§§2, 64A, 65, 66, 66A, 66B, 67, 85, 100, 100A
Conflict of Interest Claim	§§74-77	§§2, 40, 41, 41A, 42, 43, 43A, 43B, 44, 57, 58, 59, 59A, 59B, 59C, 59D, 59E, 59F, 63E, 63F, 63G, 68, 70, 74

210.  As the Overlapping Claims are to be struck out, I agree these proposed amendments must also fall away.

211.  The Trustee and the 5^th Defendant do not oppose the proposed amendments concerning the claims against them in paragraphs 1.3, 101-125A and 161-164 of the draft Amended Statement of Claim (except the reference to paragraphs 32 to 100 of the SOC in paragraph 162.2, and the reference to the “loss of de facto control of GE and its related value premium” in paragraphs 163.1 and 163.2). Accordingly, those amendments not opposed are allowed by this court.

E2.   Regarding KS

212.  The amendments in the Draft Amended Statement of Claim (“ASOC”) that (1) relate to claims that are the subject of the Trustee’s Strike Out Application and should therefore be disallowed if the same succeeds, (2) relate to claims that are the subject of KS’s Strike Out Application and should therefore be disallowed if the same succeeds, and (3) are opposed by KS for lack of particularity, have been set out in the following table:

Issue	Relevant Amendments in Draft ASOC
(1)  The following amendments should be disallowed, as they relate to claims which would be abusive to litigate against KS alone should they be struck out vis-à-vis the Trustee (ie Sections D to G of the SOC)
Claim relating to “controlling shareholder”	§§2, 30, 32, 34, 35, 36, 39A, 39B, 40, 41, 41A, 42, 43, 43A, 43B, 44, 46A, 47A, 49, 49A, 50, 50A, 50B, 50C, 50D, 50E, 50F, 50G, 54, 56, 57, 58, 59, 59A, 59B, 59C, 59D, 59E, 59F, 60, 61, 63, 63A, 63B, 63C, 63D, 63E, 63F, 63G, Prayer (4A) and (5)
Claim relating to AGM	§§2, 64A, 65, 66, 66A, 66B, 67, 85, 100, 100A
Claim relating to conflict of interest	§§2, 40, 41, 41A, 42, 43, 43A, 43B, 44, 57, 58, 59, 59A, 59B, 59C, 59D, 59E, 59F, 63E, 63F, 63G, 68, 70, 74
(2)   The following amendments should be disallowed, as they relate to allegations that have been and/or should have been raised in Madam Lo’s Actions
Alleged Conflict of Interest	§§135, 136, 137
(3)   The following amendments should be disallowed for lack of particularity
Definition of “allies”	§34 (incl Footnote 1)
Threat posed by “allies” to the shareholding position of the Trust	§135
Injunctive relief against KS relating to his “allies”	§§3 and 146; Prayer (13)

213.  As KS has been successful in KS’s Strike Out Application, I would disallow the amendments set out at paragraph 212(1) and (2) above.

214.  As regard paragraph 212(3) above, KS further opposes the following amendments (“Objected Amendments”) in the Draft ASOC:

(1)  The introduction of a concept of “allies” of KS defined in footnote 1 of paragraph 34 of the Draft ASOC as including “at a minimum, as far as the plaintiff has been able to identify at the date of filing this [ASOC]: Archie, Vincent, Gwen, Alexander, Kau Tak Kwong and Chu Shik Pui, KS/Archie/Vincent/Gwen/Alexander’s associated trusts and controlled companies including but not necessarily limited to KSL Management Limited, Katherine B L Limited, Alexander C H Limited, Elizabeth B K Limited, Nicholas C N Limited, Zachary S M Limited, Ryan S Y Limited, Mind Reader Limited, Surewit Finance Limited, Green Jacket Limited, Eagle Guardian Limited, and Evangeline S Y Ltd, as well as the Trustee as trustee of the KSL Trust (in respect of KS); Adscan Holdings Limited (in respect of Archie); and Jemrick Holdings Limited (in respect of Gwen); and shareholders whose proxies have been provided from time to time to KS to vote in his capacity as Chairman of Great Eagle”;

(2)  The introduction of the same concept of “allies” in paragraph 135 of the Draft ASOC wherein it is alleged that KS is and has been in a position of actual conflict in that the accumulation of GE shares by KS and inter alios his “allies” endangers the Trust’s shareholding position relative to other shareholders; and

(3)  Proposed amendments containing references to prohibitory injunctions against KS in paragraphs 3 and 146, and Prayer (13) of the Draft ASOC not only restraining him and entities owned by him from acquiring GE shares, but also extending to “causing or procuring any of his “allies” (as defined herein) to purchase further Great Eagle shares”.

E2.1  Relevant legal principles

215.  The legal principles governing applications for the amendment of pleadings have been summarised by Lord Brandon in Ketteman v Hansel Properties[1987] 1 AC 189 (at pp 212F – H) as follows:

(1)  First, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided.

(2)  Secondly, amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights.

(3)  Thirdly, however blameworthy (short of bad faith) may have been a party's failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party.

(4)  Fourthly, there is no injustice to the other party if he can be compensated by appropriate orders as to costs.

216.  Those principles remain good law post-CJR, see 厦門新景地集團有限公司 v Eton Properties Limited (unreported, HCMP 13/2012, 14 February 2012), Cheung CJHC (as he then was) & McWalters J (as he then was), per Cheung CJHC at §§26-35, subject to the caveat that “in the exercise of discretion, the court must of course have regard to the underlying objectives in O 1A of the RHC or of the RDC, so it cannot be assumed that once the principles in Ketteman are satisfied, the amendment would be allowed. The court would need to balance all relevant factors to decide how its discretion should be exercised, if the application is made in circumstances offending one or more of the underlying objectives”: see Topwell Corp Ltd v Kwan Kam Kee [2014] 5 HKLRD 1 at §39.

217.  It is well established that the burden is on the party seeking leave to amend to fully particularise the amendments, and it is no answer that the other side can ask for particulars: see Perak Pioneer Ltd v Carrian Holdings Ltd (unrep, CACV 59/1985, 13 June 1985, Cons, Fuad & Kempster JJA) at p 5.

218.  It is also well established that leave to amend is refused where “it can be demonstrated that the new claim based on the proposed amendment is bound to fail”: see Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455, at §25.

E2.2  Application to the Objected Amendments

219.  It should be pointed out at the outset that the Objected Amendments are an attempt to expand on the allegation made against KS in Madam Lo’s Actions of “threatening the Trust”, by increasing the number of persons and entities who are said to have constituted a threat.  The allegation that KS and/or Archie are a threat to the Trust has already been finally determined and dismissed: see Judgment §§306 – 311.  In light of that finding in Madam Lo’s Action, I agree it is abusive for Lu to now attempt not only to re-litigate the same allegation in the current action, but also seek via the insertion of a concept of “allies” to expand its scope.  For the reasons elaborated in Section C2 above, the Objected Amendments are therefore abusive and should be disallowed.

220.  In addition, to the extent that KS succeeds in striking out the “threat to the Trust” allegation on the basis of abuse, then an expanded version of the same allegation in the Draft ASOC based on some concerted action with “allies” is bound to fail and should therefore be disallowed.

(1)  This is because any alleged “allies” of KS/Archie cannot, as a matter of simple arithmetic, pose a threat to the Trust on their own.

(2)  This is apparent from Lu’s own calculations whereby KS, Archie and Gwen are said to form a potential “strategic block” of shareholding amounting to 33.58% of GE’s total shareholding (as against the 33.42% held by the Trustee).  On those figures, only 33.00% of GE’s total shareholding remains open for control by the residual “allies”.

(3)  If KS/Archie are not a “threat” to the Trust, then it is plainly impossible for those “allies” on their own to pose any threat to the Trust with its 33.42% stake.

221.  Further, I agree the Objected Amendments also offend the above legal principles for the following reasons:

(1)  They do not enable the real controversy between the parties to be resolved because the allegations against KS are not sufficiently defined, and such lack of precision cannot be cured by requests for further and better particulars;

(2)  To the extent that the concept of “allies” is capable of being ascertained, the issues that it raises are at best peripheral to the dispute between the parties, and they would constitute a wastage of judicial resources as well as prejudice KS; and

(3)  There is a particularly high risk of prejudice to KS insofar as the proposed injunctive relief is concerned.

222.  Firstly, in light of the legal principles in Section E2.1 above, plainly there is a distinct lack of particularity to the concept of “allies” as defined in paragraph 34 of the Draft ASOC. 

(1)  The language used in footnote 1 failed to pin down Lu’s case as to who these “allies” actually are.  The words “at a minimum” connotes that the phrase “allies” covered more people than those explicitly named.  The failure to name those “allies” makes it impossible for KS to prepare his case.

(2)  It is not an answer to say that as and when Lu is able to formulate who those unnamed “allies” are he will name them later by witness statements.  Parties are entitled to be told what case they have to meet by pleadings first, so that they can prepare their evidence accordingly.  Further, the open-ended nature of the category means that the lack of particularity cannot even be “cured” by requests for further and better particulars. 

(3)  If it is said that Lu will supply the names by amendment later, then that itself is a reason why the “inclusionary” language is objectionable now.  He should be tied to an exhaustive list now and be left to seek leave to amend if he wants to add to the list later.  If the “inclusionary language” is allowed to remain until trial, Lu will be at liberty to make a case based on unnamed “allies” because that would be permitted by the open language of the current plea.

223.  Separately objectionable is the plea “shareholders whose proxies have been provided from time to time to KS to vote in his capacity as Chairman of Great Eagle”.  Not only is there no particularity in terms of who this may have included in the past, and no temporal restriction on this plea as to the period covered (“from time to time”).  Even more problematic is that this is a category of individuals that will remain open indefinitely as long as KS remains Chairman of GE, and so it is an inherently uncertain concept.  A proper understanding of the fundamental purpose of pleadings shows that this is not as Lu argues a “very detailed definition in fn1 at §34 of the DASOC”.  Whilst Lu has attempted to enumerate a relatively long list of individuals and entities he considers to be KS’s “allies”, their number pales in proportion to the pool of individuals potentially falling either under the GE shareholders class or simply the open-ended “at a minimum” class.

224.  Moreover, Lu’s plea fundamentally misunderstands or worse still ignores how proxies work in practice, whether generally or specifically in respect of GE:

(1)  Thus, the fact that KS has been Chairman of GE and having been given proxies in that capacity, does not support the conclusion that each giver of a proxy is KS’s “ally”. 

(2)  A proxy form for voting at a GE general meeting allows a shareholder to appoint either a named person or failing that person, the chairman of the meeting, to attend and vote for and on behalf of the shareholder in respect of certain resolutions.  The shareholder can indicate on the form that his/her proxy shall either vote “for” or “against” a resolution, or to give the proxy a discretion in voting (in which case the proxy will be entitled to vote at his/or discretion or to abstain).

(3)  A shareholder’s instructions must be followed and indeed that is the practice of KS in respect of all proxies given to him.

(4)  Moreover, proxy givers are free to indicate how the proxy should vote on their behalf.

(5)  For proxies which give KS a discretion on how to vote, KS’s invariable and unsurprising practice is to vote “for” a resolution if that has been recommended by GE’s board.

(6)  There is no evidence or plea of any special relationship between the giver of proxies and KS, much less any alleged basis for them being KS’s “allies” (on top of the mere fact that they had given proxies to KS). 

(7)  Moreover, there are situations where KS may be absent from a general meeting, in which case the Deputy Chairman (who was Lu until May 2017) would take the chair. Thus, it does not follow that just because someone gives the chairman their proxy, it would necessarily be KS who would be voting those shares or that he would necessarily be in control of the voting of such shares at the meeting. 

225.  Lu’s reference to absolute number of proxies whilst omitting reference to the total number of shares voted is liable to mislead.  Whilst there were 19,041 proxies, this was out of some 350 million odd shares and as a matter of percentages, plainly do not constitute “an averment that is central to the issue” and demonstrates a total lack of proportionality in the intended amendment exercise and the practical difficulties that would follow should this amendment be allowed.  In light of the extremely high number of individuals who potentially fall under the concept of “allies”, but their extremely low proportion to the total number of shares, it would be (a) highly prejudicial to KS but (b) wholly unhelpful to the resolution to the real issues in the claim for the insertion of the concept of “allies” in the aforementioned paragraphs to be allowed.  Under the Ketteman principles alone the Objected Amendments should therefore be refused.

226.  It is also no good for Lu to argue that even if his current concept of “allies” is defective but could be remedied somehow by further particularisation, this is not a reason for disallowing his amendments.  Where one is seeking an indulgence from the court to introduce amendments, the proposed pleadings should be fully particularised: see paragraph 217 above. 

227.  Lu’s characterisation of KS’s current objection as a “collateral challenge” to the decision of Master Kate Li on further and better particulars (“FBP Decision”) is misconceived and only seeks to distract from the real issue here, namely whether Lu makes out a proper case for amendments. 

(1)  The appeal against the FBP Decision (which strictly speaking concerns particulars on a different part of the pleading anyway) is a wholly separate matter. 

(2)  Furthermore, KS had set down his appeal to be heard by this court against the FBP Decision but Lu’s application to amend his pleadings was an intervening matter which necessitated the deferral of the appeal until after the present applications. That the appeal of the FBP Decision was adjourned by consent, and the prudence of this joint decision from a case management perspective cannot be attacked. 

(3)  Lu’s colourful language of apparently “bowing to the inevitable” does not change the hard fact that the parties, by consent, recognised that it is an obvious waste of judicial resources (and the parties’ time and costs) to ask the court to attempt to determine the appropriate scope of an order for further and better particulars while the status of Lu’s pleadings are still in flux (because of Lu’s own application for amendment of his SOC).

(4)  There is little scope for any application of issue estoppel in interlocutory proceedings and as pointed out above the FBP Decision concerns a different part of the pleading and so the “issue” is not the same. 

228.  As noted in paragraph 215(5) above, amendments to pleadings are only allowed insofar as necessary “to enable the real questions in controversy between the parties to be decided”.  The onus is on Lu to demonstrate to the court that his proposed amendments, as currently constituted, should be allowed.  Insofar as the Objected Amendments fail to crystallise the issues between the parties, they should be disallowed even before the court needs to consider the “particularity” hurdle.

229.  Secondly, the above is in addition to the post-CJR consideration that proceedings should be conducted efficiently and economically, which would again militate strongly against allowing Lu to insert such a nebulous concept as “allies” into the pleadings thereby significantly complicating the factual inquiries that would have to be conducted both pre-trial and in the trial itself:

(1)  In order to address the issues contained in Lu’s proposed amendments if they were allowed, KS and his legal team would have to trawl through and analyse each and every proxy given to him as Chairman of the meeting at each of GE’s general meetings held since late 2015 (a) to ascertain whether the proxy gave KS a discretion to vote or whether the proxy had specified how the voting should be carried out; (b) then to identify the exact identity of the donor; and (c) the relationship, if any, of the donor to KS; and (d) then to find out how KS actually voted in relation to each resolution for which a proxy was given. 

(2)  This is a huge exercise given the number of proxies just in respect of 2017 by way of example.

(3)  Forcing KS to engage in this exercise is of little to no utility.  From KS’s memory, it appears to be the case that the proxies giving him a discretion on voting accounted for a very small number of votes out of the total votes for each general meeting (for example, in the 2017 general meeting, this was 19,041 shares in the context of over 350 million shares voted at the meeting).  Therefore, the time and expense to undertake the above investigations of proxies is totally disproportionate. 

230.  Apart from the inherently uncertain nature of the definition of “allies”, another objectionable feature in the proposed amendments is that Lu does not plead the significance or consequence, or otherwise, of what he says being an alleged “ally” of KS actually entails, which is a purely factual matter (for example, whether it is said that these are people who were under KS’s influence and hence were prepared to give him proxies) and thus has to be pleaded.  Not only does this unfairly prevent and hinder KS from addressing the allegation in his pleadings, he also cannot adduce evidence to meet or rebut it.  To allow Lu to insert an imprecise concept of “allies” without spelling out the wrongdoing or at least concerted action that is alleged against KS means that it is impossible for KS to pinpoint, let alone attempt to adduce the necessary evidence to disprove, the allegation.

231.  Thirdly, as to the objection to the introduction of the injunctive relief, it is trite that court orders and in particular prohibitory injunctions must be drafted in a way to clearly inform the party what it can and cannot do so that there is no risk of an accidental breach with its attendant consequences.  Since the concept of “allies” as defined in the Draft ASOC is not in fact an ascertainable class of individuals, there is no way KS can ensure compliance with the restraining orders sought by Lu. 

232.  In Lu’s Skeleton Submissions an analogy is drawn with injunctions which restrains a party from acting through servants or agents.  Persons giving proxies are inherently different by nature from servants/agents in that for persons giving proxies they may be able to instruct the proxy holder how to vote whereas for servants or agents they cannot give any instructions to their masters.  For example, in the case of GE shareholders who have given voting instructions in their proxy forms, there is no question of them being KS’s agents since KS would in fact be bound by their instructions, so KS is actually their servant and not the other way round: see paragraph 224(3) above.  Further and alternatively, if and insofar as Lu is saying that persons giving proxies are to be equated with “servants and agents” of KS then Lu should particularise how the servant/agency relationship arose. 

233.  KS thus opposes the proposed amendments to paragraphs 3 and 146 and Prayer (13) of the Draft ASOC because Lu should not be permitted to seek injunctive relief in respect of a prayer based on his defective pleading of “allies”, especially where Lu suggests that KS has a duty to control (whether by causing or procuring) his “allies” from acting in a certain way.  The order sought by Lu would impose a duty on KS to control individuals who are not the “servants or agents” of KS and whose identities KS cannot even ascertain by reference to Lu’s pleadings, which is wholly “unworkable”.

234.  For the reasons stated above, I would also disallow the amendments set out at paragraph 212(3) above.

235.  Subject to paragraph 211 above, I would allow the proposed amendments that are not referred to at paragraphs 213 and 234 above.

F.  COSTS

236.  I see no reason why costs should not follow the event.

237.  Accordingly, I order that the costs of and occasioned by (i) the Trustee’s Strike Out Application; (ii) KS’s Strike Out Application; (iii) Lu’s Order 15, rule 14 Application; and (iv) Lu’s Application to amend his Statement of Claim be borne by the plaintiff, such costs are to be taxed if not agreed with certificate for 2 counsel to the Trustee and KS, and to be paid forthwith.

238.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

239.  Lastly, I express my gratitude to counsel on all sides for their helpful assistance in this matter.