BONITA CO., LTD S.A. v. CHARK YUK YING BRENDA t/a BRENDA CHARK & CO.

HCA 1380/2019

[2022] HKCFI 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1380 OF 2019

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JUDGMENT

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INTRODUCTION

1.  This is an appeal by the plaintiff (“P”) against the order of Master Keith Lam (“Master”) made on 6 October 2021 ordering, amongst other things, that (1) the present action be discontinued ; (2) P shall be barred from bringing another action/claim on the same subject matter as its claim in this action (“Bar”); (3) there be liberty to apply in respect of P’s Strike Out Summons (as defined hereinafter); (4) there be liberty to apply for payment out of the sums in court (“Discontinuance Order”)[1].

2.  P issued the Notice of Appeal on 20 October 2021 seeking that:

(1)  leave be granted to P to wholly discontinue this action;

(2)  costs of this action be paid by P to D, to be taxed if not agreed; and

(3)  costs of this appeal be paid by D to P

3.  The crux of the appeal is whether the Bar in the Discontinuance Order should have been imposed.

THE BRIEF BACKGROUND

4.  P is a corporation established in the Republic of Panama. The defendant (“D”) is a local solicitor admitted in August 2000 and in private practice in a firm bearing her name.

5.  P was involved in a dispute (“Dispute”) arising out of its hire of a vessel under construction pursuant to a bareboat charter entered into between P (as charterer) and a Korean company Daelim Corporation (“Daelim”) on 23 December 2010 (“Master CP”)[2] and P then entered into a sub-charter of the same date with a Taiwanese company Eastern Media International Corporation and another Panamian company Far East Silo & Shipping (Panama) SA (collectively “EMIC”) as co-charterers for the hiring of the vessel at a higher daily rate (“Sub-Charter”)[3]. Pursuant to the Master CP, P had assigned to Daelim absolutely all interest and rights which P had under the Sub-Charter (“Assignment”).

6.  The Dispute had led Daelim in applying for and obtaining an ex parte injunction order from the English Commercial Court on 17 June 2018 (“UK Injunction Order”) against P and EMIC[4] and thereafter commencing arbitration in London. The UK Injunction Order amongst other things restrained EMIC from paying a disputed sum of USD 474,100 payable by them under a settlement agreement, namely the Termination and Settlement Agreement of 4 June 2019 entered into by Daelim on one part and P and EMIC on the other (“TSA”)[5] and that EMIC was ordered to pay the disputed sum into an account under the joint control of Daelim’s London solicitors Stephenson Harwood (“SH”) and the London solicitors acting for EMIC, Holeman Fenwick Willan (“HFW”). Under paragraph 5.3 of the UK Injunction Order, P was restrained from demanding and/or taking any steps to demand or to recover the disputed sum from EMIC (“Paragraph 5.3”).

7.  It was not disputed that on 18 June 2019, D had received two telephone calls from P’s authorised agent Ms Lee I-Ying (“Ms Lee”). According to P, the first telephone conversation lasted for 12 minutes 5 seconds, and the second one lasted 1 hour 4 minutes 35 seconds (respectively the “1^st Telephone Conversation” and “2^nd Telephone Conversation”, and collectively “Telephone Conversations”)[6].

8.  The contents of the Telephone Conversations were disputed. During the 1^st Telephone Conversation, P allegedly informed D that P was interested in engaging D to represent P in the Dispute, whereupon D indicated that Daelim had consulted D on the matter before and that she would need to ask Daelim before accepting instructions from P. During the 2^nd Telephone Conversation, it was alleged by P that while D indicated that she could not confirm whether she could represent P yet, as Daelim had not yet responded to her, D had agreed to give some advice to P on the Dispute. Subsequently, D formally declined to act for P on the same day.

9.  D then acted for Daelim. On 19 July 2019, Daelim applied and obtained an ex parte worldwide Mareva injunction against P in Hong Kong in aid of arbitration commenced in London from DHCJ Leung under the action HCCT 34/2019[7], which was continued by Wilson Chan J on the return date 2 August 2019[8] (“HK Injunction Order”), until the determination of P’s continuation summons. The continuation summons was opposed and subsequently after a substantive hearing, Keith J allowed the HK Injunction Order to be continued until further order for enforcing the London Award. Pursuant to the HK Injunction Order, P is prohibited from, amongst other things, removing from Hong Kong a sum of USD 1,292,616.64 or disposing of the sum whether within or outside Hong Kong including any money in P’s bank account in HSBC in Hong Kong.

10.  It is P’s allegation that private, confidential and/or privileged information (“Confidential Information”) had been disclosed by Ms Lee to D in the Telephone Conversations and that private confidential and/or privileged legal advice (“Advice”) had been provided by D to P in the course of the Telephone Conversations, and that D had passed on the Confidential Information, the Advice and/or certain parts thereof for the purposes of or in connection with Daelim’s claim against P in HCCT 34/2019 including Daelim’s application for the HK Injunction Order[9]. This was denied by D.

11.  On 24 July 2019, P requested D to cease to act for Daelim which D refused[10]. P then commenced the present action against D on 30 July 2019. As seen in its statement of claim (“SOC”), P claims an injunction restraining D from acting in breach of the duty of confidence as pleaded and/or to misuse and/or to publish the Confidential Information in an unlawful manner, and/or from advising or acing for Daelim in the Dispute and damages to be assessed. D filed her defence on 18 November 2019 (“Defence”).

12.  After commencement of this action, D had applied for and obtained orders for security for costs against P on 20 September 2019 and 9 June 2020 (respectively “1^st Security Order” and “2^nd Security Order”) and P had made payments totalling HKD 1.5m into court in compliance with the respective orders.

13.  On 28 May 2021, on D’s application, Master K W Wong made a further order for security for costs in the amount of HK$1 million (“ 3^rd Security Order”)[11]. The 3^rd Security Order states that should P fail to make payment within 21 days (ie by 18 June 2021), D would be at liberty to apply for dismissal of P’s claim.

14.  P failed to make payment into Court by the deadline of 18 June 2021 and had in the 1^st affirmation of Mr Alan Cheung-Yu Kao, P’s director, (“Mr Kao”) indicated that it did not (and would not in the near future) have sufficient funds to do so[12].

15.  By a letter to the P’s solicitors on 22 June 2021[13], D stated unequivocally that she would be seeking an unless order that the action be dismissed with costs should the P fail to comply with the 3^rd Security Order by 5 July 2021.

16.  On 24 June 2021, P issued a summons seeking leave to wholly discontinue the present action pursuant to Order 21 rule 3 of the Rules of the High Court ( RHC) (“Discontinuance Summons”)[14]. The Discontinuance Summons did not mention any terms or conditions.

17.  As pointed out by Mr Pao, under paragraph 2 of the 3^rd Security Order, in fact the proceedings herein should have been stayed pending P’s compliance with the provision of the further security of HKD 1m within the deadline stipulated save for the enforcement of the 3^rd Security Order, and thus P should have applied for uplift of the stay before issuing the Discontinuance Summons. It was not clear whether this point was raised at the hearing before the Master and in any event, this was a technical procedural issue only. I am prepared to allow the stay in the 3^rd Security Order to be uplifted for P’s Discontinuance Summons.

18.  The Discontinuance Summons was supported by the 6^th affirmation of P’s solicitor Mr Leung King Wai William (“Mr Leung”). In opposition to the Discontinuance Summons and in support of the Strike Out Summons (defined below), D filed her 10^th affirmation consisting of 100 pages. In response thereto, Mr Leung filed his 7^th affirmation exhibiting a copy of a signed and notarised 1^st affirmation of Mr Kao’s and producing certain fund transfer documents. Mr Kao’s 1^st affirmation was subsequently filed in Court.

19.  D has issued a summons on 6 July 2021 to strike out the SOC and for the action to be dismissed on the grounds that it disclosed no reasonable cause of action or is scandalous, frivolous or vexatious, or is an abuse of process of court pursuant to Order 18 rule 19 of RHC and/or inherent jurisdiction of the court, and the summons was further amended on 13 August 2021 to include seeking alternatively a dismissal of P’s action due to P’s breach of the 3^rd Security Order (“Strike Out Summons”). The Strike Out Summons was adjourned sine die by Master Phoebe Man on 13 August 2021 with liberty to restore, pending the determination of the Discontinuance Summons[15].

20.  The Discontinuance Order was subsequently made by the Master.

APPLICABLE LEGAL PRINCIPLES

21.  It is trite that appeals from masters’ decisions are hearings de novo, in that they are dealt with by way of an actual rehearing of the application which led to the order under appeal and the judge treats the matter as though it came before him/her for the first time. The judge would give the weight it deserves to the previous decision of the master but he was in no way bound by it. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion: Hong Kong Civil Procedure 2022 at paragraph 58/1/2.

22.  As for discontinuance of actions, Order 21, rule 3(1) of RHC provides that:

“(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counter-claim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just. …”

23.  Order 21, rule 4 of RHC further provides that:

“Subject to any terms imposed by the Court in granting leave under rule 3, the fact that a party has discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action.”

24.  Ms Eu SC appearing for P has referred the Court to The Kronprinz and The Ardandhu (1887) 12 App Case 256 at 262 and that the discontinuance of a claim does not operate as a release or extension of a cause of action, and is not per se a bar to further proceedings, unless the Court imposes terms prohibiting the bringing of another action

25.  Ms Eu has further referred to Chappie v Warrington (1995) 72 RPC 343. In that case, Wynn-Parry J held (at p.344 ll.12–15) that the Court “ought only to impose conditions if, upon a fair view of the whole of the relevant circumstances the imposition thereof is necessary, either for the protection of the Defendants or in the public interest”.

26.  Mr Pao SC appearing for D does not dispute the general proposition cited above, and has only pointed out that the Chappie case involved a passing-off claim, and Wynn-Parry J was not satisfied that the defendants needed protection because of the fact that “they have a counterclaim on foot, which they are at liberty to pursue, and, if they succeed, it will be the end of the whole trade mark”: (at p.344 ll.30– 34). However, as pointed out by Mr Pao, in the present case, D does not have a counterclaim through which the dispute could be resolved notwithstanding the discontinuance of the case.

27.  As recognized by Rimer LJ in Silkstone v Tatnall [2012] 1 WLR 400 in relation to the former UK RSC Order 21, (ie our Order 21), and referring to applications thereunder, there was and is not, at any rate in all cases, an unqualified right on the part of a claimant to discontinue and then to start a second set of proceedings advancing the same or substantially the same claim, and that the court could and can control the extent to which this can be done. As explained by Rimer LJ, the purpose of tis jurisdiction in that respect is to prevent the claimant abusing the process of the court and unfairly harassing the defendant by repeated claims[16].

28.  Mr Pao has also referred the Court to Discovision Associates v Disctronics (UK) Ltd [1999] FSR 196 and Albright & Wilson Ltd v SB Chemicals Ltd [1994] RPC 608 for the proposition that a plaintiff should not be allowed to leave the threat of a discontinued claim hanging over the defendant or harass the defendant with repeated claims.

29.  In the Discovision case, Laddie J declined to exercise his discretion to allow discontinuance as he found that it was an exception case. His conclusion was based on (i) there are substantial grounds upon which the defendants had alleged that the case was highly speculative and based upon no firm material whatsoever; (ii) the plaintiff’s unwillingness to offer any undertakings to safeguard the position of the defendants must raise fears which were confirmed by its affidavit evidence, that it did wish to retain the ability to keep the threat of litigation hanging over those defendants’ heads; and (iii) the trial was then less than two months away; (iv) a relevant factor was the issue of costs which although a subsidiary point, but preferable for the matter to be reserved to the trial judge.

30.  Ms Eu has argued that reasons (i) and (iii) do not exist in the present case. However it was clear that (ii) above was one of the reasons Laddie J had taken into consideration.

31.  The Allbright case was a patent infringement action by the plaintiff and 4 patents were in issue. The plaintiff sought leave to withdraw its claim over 2 of the 4 patents, and was prepared to undertake not to bring further proceedings in respect of the actual acts of alleged infringement which had occurred to date. The undertaking was not acceptable to the defendant who submitted that the undertaking should be that the plaintiff would not bring proceedings in respect of the relevant patents by any act done in relation to a particular product mentioned in the particulars of infringement.

32.  As pointed out by Aldous J in the Allbright case, there were cases where leave to discontinue had been refused and judgment was given for the defendant, and there were other cases where undertakings had been required which would prevent the plaintiff bringing a fresh action in respect of the acts complained of. As said by Aldous J, those cases did not appear to him to establish any clear principle in that they were all decided upon their own facts. Aldous J thus believed that he should approach the matter from first principles and in particular he should consider what was just in all the circumstances, taking into account that he should not compel the plaintiff to litigate against its will and that the defendant should not be deprived of an advantage or in any way be prejudiced[17].

33.  The question of whether discontinuance should be allowed (and if so, on what conditions if any) has also been the subject of judicial consideration in a number of Hong Kong cases.

34.  What was held by Wynn-Parry J in the Chappie case was cited with approval by Kaplan J in Inchroy Credit Corporation Ltd v Cheung Man-cheung [1992] 1 HKLR 120[18].

35.  In the Inchroy case, the plaintiff (as the lender) and the defendant (as the borrower) entered into a hire purchase agreement for a car. The plaintiff sued the defendant when the defendant defaulted on the payment, but subsequently applied for leave to discontinue the action after he was paid off. When the application was heard by Master Bokhary (as she then was), the action was allowed to be discontinued on the terms that the plaintiff should “bring no further proceedings against the defendant in respect of their claim for instalments and interests”, as the plaintiff had already been paid out in full under the hire purchase agreement. On appeal, the defendant sought a wider prohibition that the plaintiff should be barred from any subsequent action for the same or substantially the same cause of action. However, the plaintiff wished to leave open the possibility they might have to claim against the defendant for possession of the vehicle although prima facie the plaintiffs having been paid out in full, they would seem to have no further interest in the car.

36.  Kaplan J, finding that there might well be future problems as to title to and possession of the car in questions and that the defendant might be involved as a party thereto, he felt most uncomfortable in shutting the plaintiff out from a possible future claim in relation to the car, which claim might involve the defendant. Kaplan J accepted that much of this was speculative but he was satisfied that taking into account all of the relevant circumstances the condition imposed by the master was necessary for the protection of the defendant, and that to go further as the defendant would have him do was to go beyond that which was reasonable or necessary in the circumstances[19].

37.  Mr Pao has also referred to Trend Publishing (HK) Limited v Vivien Chan & Co (a firm) [1996[ 2 HKLR 227 in which Keith J had agreed with Kaplan J in the Inchroy case that Order 21 rule 3(1) gives the court a complete discretion to do justice between the parties[20]. Trend Publishing was applied by the Court of Appeal in Sincere’s Knitting Mills Ltd v Cheong Pui Fan [2005] 4 HKC 363 to support the general proposition that discontinuance can be allowed on such terms as the judge may think just in the circumstances.

38.  As seen in the above Hong Kong authorities, the Court will impose such conditions on discontinuance as are necessary to prevent the plaintiff from vexing the defendant with a revived claim based on the same subject matter, or depriving the defendant of a fairly obtained advantage in the litigation.

39.  Ms Eu has relied on Radu v Houston [2006] EWCA 1575 in support of N’s case. In brief, in that case the plaintiff was a Romanian citizen and he commenced a libel action against the defendants who sought to justify the allegations in their defence. The defendants applied for and obtained and order for security for costs and although the plaintiff obtained leave to appeal from the master, the order came with an “unless” provision for the plaintiff’s claim to be struck out and judgment for the defendants on production of evidence of default. Further, the plaintiff’s application for stay pending appeal from the master and subsequently from the vacation judge was refused. As security as ordered was not provided, judgment was entered dismissing the appellant’s claim. The plaintiff subsequently obtained funds and was able to provide the security ordered before the appeal against the security for costs order was later heard by Eady J who handed down a draft judgment which indicated that he would refuse to set aside the judgment. The plaintiff then appealed to the Court of Appeal.

40.  Walker LJ said that[21]:

“…. The obtaining of an order for security for costs is a rather special form of order. It is intended, if it is right to make an order at all, to give a claimant a choice as to whether he puts up security and continues with his action or withdraws his claim. That choice is meant to be a proper choice.”

41.  However, Walker LJ had gone on to say that he actually found it somewhat strange that, whereas with most forms of interlocutory order, it would be unlikely that a court would make an unless order as its first order, it seemed to be quite common to make an unless order in relation to security for costs and that the reason for that difference, as suspected by him, was the attitude in the commercial court that an order for very large sums should not be made subject to the “unless” sanction until a real opportunity had been given to the claimant to find the money, and that even if an unless order was made as part of the first order, the period for complying should on any view be generous, and that the making of an order for security was not intended to be a weapon by which a defendant could obtain a speedy summary judgment without a trial. Walker LJ further went on to say that one of the most difficult circumstances that courts had to deal with was the assertion by a claimant that if security would otherwise be due, it should not be ordered because there would be a stifling of the claim[22].

42.  I agree with Mr Pao that the Radu case concerned the propriety of the underlying order for security for costs and also on the facts of that case, the plaintiff had already raised sufficient funds to comply with the order for security by the time the appeal against the master’s order and the judgment came before Eady J. Thus, what was said by Walker LJ had to be considered in light of the facts of the case. In the present case, there was no appeal against the 3^rd Security Order, nor had P come up with the amount for security by the time of the appeal.

43.  Having considered the various authorities, what is clear is that the question is whether, upon a fair view of the whole of the relevant circumstances in the case, the imposition of conditions is necessary either for the protection of the defendant or in the public interest. Each case will turn on its own facts, with the overarching principle being the need to do justice between the parties.

44.  I now turn to the facts of the present case.

WHETHER IT IS NECESSARY TO IMPOSE THE BAR IN THE PRESENT CASE

45.  It is submitted by Ms Eu on behalf of P that the Bar has gone beyond what is reasonable or necessary in the circumstances, and that it currently protects D from all possible claims against her “discreditable” behaviour, even including claims that have not been litigated against her. In this vein, D is deriving a wider protection than that accorded by res judicata and is being placed in a better position than a normal defendant. There is no justification why D should be accorded such special protection. In particular, P relies on the following in support of its argument that it is not necessary to impose the Bar:

(1)  All along P has complied with previous court orders;

(2)  The Bar is unnecessary for the protection of D, as D will be adequately compensated by costs;

(3)  the Bar unnecessarily protects D from future claims against her discreditable conduct at the expense of P’s right to litigate on a meritorious claim;

(4)  the Bar is unnecessarily wide.

P’s compliance with previous court orders

46.  It is argued on behalf of P that P has duly complied with the 1^st Security Order and the 2^nd Security Order by paying respectively HKD 150,000 and HKD 1,350,000 respectively within time, and that this is not a case where P has demonstrated that it has no intention to abide by a court order. P decided to apply for discontinuance once P was aware that it was unable to raise funds to bring the case to trial and that it did not remain idle and left the claim on stay pending payment into court or left it to D to apply for dismissal.

47.  However, the deadline for P to comply with the 3^rd Security Order was 18 June 2021 and P knew that D was at liberty to apply to dismiss P’s claim if P failed to comply with the order. On 21 June 2021, P had issued a time summons for extension of time of 7 days to comply with the provision of the security. In response, D had written to P on 22 June 2021 giving P a deadline of 5 July 2021 and giving notice that they would apply for an unless order on the return day of the time summons.

48.  Notwithstanding being given further time to come up with the payment, P issued the Discontinuance Summons two days later. In my view, this was clearly a tactical move on the part of P in that P knew that D was going to apply for an unless order and that dismissal would be an inevitable consequence of the unless order if granted and P issued the Discontinuance Summons “to steal a march”, as Mr Pao has put it, on D’s application for the unless order or any dismissal.

Whether D will be adequately compensated by costs

49.  It is argued that as P has complied with the previous security costs order with HKD 1.28m remaining in court, the sum should be more than adequate to compensate for all of D’s costs incurred so far and if P were to commence a fresh action against D based on the same facts, D will also be entitled to seek security for costs from P again, which in view of P being a foreign plaintiff, will in most likelihood be awarded.

50.  However, as submitted by Mr Pao, the above is no answer that D will be vexed twice in the event of a fresh action and it is not simply a matter of costs. The possibility of re-litigation over D is a form of prejudice. Further, as rightly pointed out by Mr Pao, there is also the impact on administration of justice bearing in mind on the underlying objectives as set out in Order 1A in RHC. I agree.

Whether the Bar is unnecessary protection afforded to D

51.  It is argued on behalf of P that P’s claim on a breach of confidence is strong on merits. P’s case is based essentially on the Telephone Conversations, in particular the 2^nd Telephone Conversation, and that as D is an experienced solicitor, the only inference that can be drawn from the contents of that conversation which was said to have lasted for more than an hour is that it was an inducement for P to reveal the Confidential Information which was then used in Daelim’s ex parte injunction application against P.

52.  The Telephone Conversations were however not audio recorded and the contents of the alleged transcript of the Telephone Conversations, which were prepared from Ms Lee’s recollections, are seriously disputed by D.

53.  Mr Pao has also referred to P being of low commercial morality as Daelim obtained both injunctions on ex parte basis. As seen in the transcript of the hearing on 28 June 2019 in the English proceedings before Jacobs J, ie the return date of the then ex parte injunction, Daelim’s Counsel Mr Leabeater QC had pointed out to Jacobs J that prior to obtaining the ex parte order, Daelim had agreed with EMIC in principle to have an escrow account but P was refusing to agree to it and that formed the background to Daelim’s application for the injunction, and that after the order, P had breached the order on a number of occasions through its solicitors[23]. Further, it was submitted on behalf of Daelim, that “… the continuing breaches of the order, the very innate instruction of [P’s solicitors] and counsel, and the fact that they will not agree to an escrow account, the fact they will not agree to [Daelim] having part-payment of an admitted debt, all those issues made [Daelim] worried about P’s bona fides”[24].

54.  P had instructed Counsel Mr Brier only in the morning of the return date on 28 June 2019. During that hearing, Mr Brier had informed Jacobs J that “The first is just the message has been conveyed about the terms of the injunction, and not breaching it, and I understand that Mr Leung was going to withdraw those demands to make sure he is not in breach of any terms [inaudible] this order, and that was made clear to him.”[25]

55.  It appears that Mr Leabeater was referring to the WKWL Letter (defined below) and Mr Leabeater’s complaints about P’s breach of the injunction were not without cause.

56.  Mr Pao has also pointed out that in obtaining the HK Injunction Order, D had persuaded DHCJ Leung that there was a risk of dissipation on the basis that P was said to be of low commercial morality.

57.  When Daelim applied for the HK Injunction Order on ex parte basis on 19 July 2019, D appearing for Daelim had relied on amongst other things what was said in a letter dated 21 June 2019 sent by P’s solicitors William KW Leung & Co (“WKWL”) to EMIC’s solicitors HFW in Hong Kong (“WKWL Letter”)[26]. In the WKWL Letter it was suggested to EMIC that it could totally disregard the UK Injunction Order, although D had informed DHCJ Leung that subsequently with proper legal advice, such instruction was withdrawn. In any event, it was on the basis of the history of the matter that Daelim was concerned that P might not be as genuine as it appeared to be, and that there was basis for Daelim to come to a view that P might be described as low commercial morality. Suffice to say, DHCJ Leung was satisfied that the requirements for a Mareva injunction were satisfied, including there being a risk of dissipation and Daelim did obtain the HK Injunction Order against P on ex parte basis.

58.  The application for the UK Injunction Order took place prior to the 1^st Telephone Conversation. According to the 1^st Telephone Conversation, Ms Lee told D that P was a Panamanian company which had entered into a tripartite agreement TSA with a Korean owner of a vessel and a Taiwanese hirer, and the advice P was seeking from D was whether the Taiwanese hirer was under any obligation to comply with an injunction order issued in England obtained by the Korean owner of the vessel against P and its Taiwanese hirer, as P had received advice from its Taiwan lawyers that its Taiwanese hirer was under no such obligation.

59.  According to P’s own transcript of the 1^st Telephone Conversation, D immediately asked P whether the owner of the vessel was Daelim and whether the hirer was EMIC, and she then disclosed that Daelim had made enquiries from her but had not yet formally instructed her. D further said she had to ask Daelim before she could accept instructions from D. Ms Lee then told D Daelim had instructed SH in London. As for the 2^nd Telephone Conversation, P called D and asked again whether she had confirmed with Daelim to which D said she had not yet heard from Daelim.

60.  According to the transcript of the 2^nd Telephone Conversation, P had allegedly, amongst other things, informed D that there were 2 charterparties which would continue until August 2020, but EMIC indicated they wanted to deliver back the vessel earlier which resulted in the tripartite TSA. Ms Lee had asked D whether she had seen the TSA to which D said NO. Ms Lee had asked D whether P could commence arbitration proceedings in Hong Kong, and whether Daelim could apply for injunction in Hong Kong. D’s response was amongst other things that an injunction could be obtained if there was dissipation of assets in Hong Kong. When Ms Lee asked whether P could issue arbitration proceedings in Hong Kong, D had again said amongst other things that she had not seen the agreement but she believed P could sue EMIC for breach of contract in Taiwan, and that litigation in Taiwan would not take a long time whereas arbitration proceedings in Hong Kong would take about 16 months. Ms Lee told D that P did not want to sign the tripartite agreement and had hoped to follow terms of the charterparties but there was the assignment and they were advised to sign by their Taiwan lawyer. D had said P could sue EMIC for breach of the tripartite agreement and to demand the continuance of the terms of charterparties but D had again said she could not advise properly without sight of the agreement. As for arbitration in Hong Kong, she told Ms Lee that P could obtain information about arbitration in Hong Kong from the website of the Hong Kong Arbitration Centre.

61.  Even if the contents of the transcript were true and accurate, it was not clear what Confidential Information had allegedly been divulged to D and which D had passed on in order to obtain the HK Injunction Order. The Advice if any, was generic. P’s intention to challenge the English Court’s jurisdiction and the Assignment was already made known to the English Court and Daelim on 28 June 2019. As pointed out by D in her 10^th affirmation and which can also be seen from the transcript of the hearing before DHCJ Leung on 19 July 2019, the ex-parte injunction in Hong Kong was granted based mainly upon the emails exchanged between Daelim and P from 26 March to 14 July 2019[27]. Further, at 22:23 Hong Kong time on 19 July 2019, P’s solicitors in London SH served on Daelim P’s application to challenge jurisdiction in granting Paragraph 5.3 together with P’s witness statement. P had opposed the 3^rd Security Order but not on the basis that it had a high degree of probability of success at trial. Anyway, P did not succeed in its opposition. There was no appeal against the 3^rd Security Order, nor any of the previous two orders. As mentioned earlier, D has issued the Strike Out Summons and although it is not for this Court to go into the detailed merits of P’s claim at this stage, having considered the evidence before this Court, I am not satisfied that P has such a strong or meritorious claim against D as submitted by Ms Eu.

62.  On the other hand, D is a practising solicitor with a reputation to protect and vindicate. D’s evidence is that as a result of this action, she has been required to prove to the Hong Kong Law Society since 2019 her financial ability to satisfy any potential judgment against her, whether through insurance or her own financial means, as a condition of the annual renewal of her practising certificate. D has not claimed against the professional indemnity scheme in respect of the present action since in any event, under the scheme, the insurance cover for D is up to HKD 20m which falls far short of P’s HKD 62m claim in this action for loss of profits. In light of all this, I accept that there is real prejudice to D if P is allowed to simply resurrect its claim whenever it wishes, D having now been denied the chance to clear her name through the present proceedings.

63.  Having considered all the circumstances of this case and the need to do justice between the parties, I have come to the view that the Bar is necessary to protect D from future claims.

Whether the Bar is unnecessarily wide

64.  P has not offered any undertakings. Ms Eu has submitted that any condition this Court is minded to impose should only be in relation to the action for breach of confidence.

65.  The Bar is against P from bringing another action/claim on the same subject matter as its claim in this action. As pointed out by Mr Pao, insofar as P is suggesting that the underlying factual allegations in the present action give rise to any cause/s of action other than the alleged claim in breach of confidence, such claims should have been brought as part of the present action referring to the Henderson abuse and citing Johnson v Gore Wood v Co [2002] 2 AC 1 at 31A per Lord Bingham.

66.  I accept Mr Pao’s submission and I am of the view that the Bar is not too wide.

CONCLUSION AND ORDER

67.  In the above circumstances, I agree with the terms of the Discontinuance Order made by the Master. I dismiss P’s appeal with costs. This is an order nisi which shall be final after 14 days.

68.  My final comment is that for this hearing, there were 6 bundles lodged with some 1317 pages of documents. The documents marked with “*” were not agreed to by P on the ground that those documents were unlikely to be referred to. At it turns out, a lot of documents were not referred to and were unnecessary. I am of the view costs should not be allowed for those documents not agreed, unless they have been referred to specifically in this judgment or by Counsel.