WONG CHI CHING v. JCC CHEUNG & CO SOLICITORS AND OTHERS

DCCJ 2197/2021

[2023] HKDC 1630

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2197 OF 2021

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BETWEEN

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DECISION

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1.  This is the hearing for the strike out summonses taken out by the 2^nd and 3^rd defendants (“D2” and “D3”) on 19 August 2022 and by the 1^st defendant (“D1”) on 20 September 2022 (collectively, “the Summonses”).

Background

2.  The plaintiff (“P”) claims negligence and breach of contract against D1, her former solicitors, and D2 and D3, her former leading and junior counsel with regard to their representation of P in her claim against her previous employer, BOCOM International Holdings Co Ltd (“BOCOM”).

3.  P instructed D1 and D3 in August 2009 regarding a claim for outstanding bonus against BOCOM. An action was initiated at the Labour Tribunal which was transferred to the High Court in August 2012 as HCA 1494/2012 (“the 1^st HCA”).

4.  According to the Statement of Claim, P became aware of certain new facts that might form the basis of a new claim which concerned the alleged breach of implied terms of the contract of employment and / or duty of care by BOCOM in employing two individuals which resulted in loss of chance to earn additional bonus for P (the “New Claims”).

5.  P claims that, despite instructing D1 and D3 to add the New Claims to the 1^st HCA, such “instruction was ignored” so the New Claims “did not form part of the Amended Statement of Claim in the 1^st HCA”. (paragraphs 9, 10 and 11 of the Statement of Claim, Hearing Bundle A page 6).

6.  On 8 February 2013, BOCOM made a Sanctioned Payment in the 1^st HCA “in settlement of the whole of (P’s) claim” (paragraph 12 of the Statement of Claim, Hearing Bundle A page 7).

7.  In a meeting on 21 February 2013, D2 advised P to accept the Sanctioned Payment. P sought advice as to whether the acceptance would debar her from starting the New Claims (paragraphs 13 and 14 of the Statement of Claim, Hearing Bundle A page 7)

8.  On 4 March 2013, D2 and D3 issued a Note of Advice (“the 2013 Note”) (Hearing Bundle B page 141-142) which was made on the basis that D2 and D3 “have not had the opportunity to examine the merits of these new claims in any detail but assume for the purpose of this advice that they are meritorious” (paragraph 3 of the 2013 Note) stated, amongst others:

“6. The issue is whether, taking the lay client’s pleaded claims in their entirety, her “whole claim” covers the “new claims”. This issue is not without difficulty.

7. On the one hand, the claims presently pleaded concern breaches in failing to calculate and issue bonus in accordance to the agreed formula…The “new claims” are concerned with breach of trust and confidence which eventually prevented the lay client from earning a bonus. The breaches and also the facts relied on in the two sets of claims are thus arguably different. It is therefore arguable that the new claims are not part of the “whole claim” so that new claims may be made even after the acceptance of the sanctioned payment.

8. However, on the other hand, this is a claim for outstanding bonus. It may be argued that a settlement for the whole of the claim means the settlement on the issue of outstanding bonus between the parties. Therefore, upon acceptance of the sanctioned payment, there can be no other claim(s) on the same issue, i.e. outstanding bonus again. Whilst the new claims are partly based on additional facts, they are nevertheless claims for outstanding bonus, so acceptance of the sanctioned payment bars them.

9. On balance we are of the view that the “new claims” will not be barred if the sanctioned payment is accepted. However, the lay client must be aware that the matter is not without doubt, and that responsible argument can be mounted (and which may succeed) in support of the contrary view.”

9.  On 7 March 2013, P accepted the sanctioned payment.

10.  In March 2014, P instructed other counsels to commence HCA 362/2014 (“the 2^nd HCA”) bringing the New Claims against BOCOM.

11.  The claims under the 2^nd HCA essentially consisted of:

a. A contractual claim for breach of the implied term of mutual trust and confidence (paragraphs 23 and 23A of the Statement of Claim of the 2^nd HCA, Hearing Bundle B page 163-164, “the Contractual Trust and Confidence Claim”)

b. A claim for breach of duties in negligence (paragraphs 24 and 25 of the Statement of Claim of the 2^nd HCA, Hearing Bundle B, page 164-165, “the Breach of Duty Claim”)

12.  However, the 2^nd HCA was struck out on 23 April 2015 by Deputy High Court Judge B. Chu, whose Judgment (Hearing Bundle B, page 12-43), “the Judgment”) accepted all 4 grounds for striking out raised by BOCOM, as follows:

a. The Breach of Duty Claim was in reality a contractual claim so the 2^nd HCA fell within the exclusive jurisdiction of the Labour Tribunal and wrongly commenced in the High Court (paragraph 53 of the Judgment, Hearing Bundle B, page 28).

b. No evidence as to why P did not raised the New Claims in the original Labour Tribunal claim and the 1^st HCA. It was therefore a Henderson v Henderson abuse of process (i.e. res judicata in the “wider” sense, “the Henderson Issue”). There is a long discussion in the Judgment on this matter, especially on the apparent contrasting decisions between the cases of Yu Hoi Po v Act International Ltd [1996] 4 HKC 377 and Dataprep (HK) Limited v Kuo Chi-yung Peter [1974] HKLR 383. The decision on this issue was stated on paragraph 87 of the Judgment, Hearing Bundle B, page 38.

c. P had signed a settlement letter agreeing to waive and released BOCOM from any claims apart from her medical claim in the notice period (paragraph 104 of the Judgment, Hearing Bundle B page 41).

d. Given P’s claim was in realty contractual, it was time-barred being over 6 years since the alleged breach (paragraph 109 of the Judgment, Hearing Bundle B, page 42).

13.  Between 12 May to 22 September 2015, P sought advice again from D2 and D3 through D1 concerning an intended appeal against the Judgment (“the Appeal”).

14.  D2 and D3 issued a Note on Matters to be Discussed dated 12 May 2015 (Hearing Bundle B, page 44 - 45, “the 1^st 2015 Note”) and 3 Notes of Advice dated 15 May, 20 May and 22 September 2015 (“the 2^nd 2015 Note”, “the 3^rd 2015 Note” and “the 4^th 2015 Note”, Hearing Bundle B, pages 2-3, 4, 5-10 respectively).

15.  Besides dealing with the Appeal, the 2^nd 2015 Note and 4^th 2015 Note also dealt a new intended claim for breach of implied term of cooperation (“the Intended Cooperation Claim”) which had not been raised at the 2^nd HCA.

16.  The court can deduce the following in the 1^st to 4^th 2015 Notes:

a. Now with a chance to assess the Breach of Duty Claim, D2 and D3 opined that it was weak in merit (both in terms of the existence of such duty of care on “an employee’s economic-wellbeing” as well as evidence on causal link and quantum). But even assuming that a duty of care can be established: the prospects of appealing against the Henderson Issue in the Judgment were “at best 50:50”, and there were arguments that could be made on jurisdiction (especially between the contrasting decisions in Yu Hoi Po and Dataprep), waiver and time bar on appeal (from the 1^st 2015 Note).

b. Again, now with a chance to assess the Contractual Trust and Confidence Claim, D2 and D3 opined that there was “no merit” and was in any event time barred (from the 2^nd 2015 Note).

c. The Intended Cooperation Claim was weak due to time bar and the Henderson Issue. Even after considering additional materials provided by P, D2 and D3 were of the view that this claim was time barred (from the 2^nd and 4^th 2015 Note).

d. There was no material to show that Deputy High Court Judge B. Chu had failed to deal with the time bar issue in the Judgment (from the 3^rd 2015 Note).

e. Despite the concerns expressed about P’s appeal, D2 and D3 nonetheless agreed to provide with a draft grounds of appeal in order to comply with the time limit.

17.  Incidentally, it was D1’s evidence that upon receiving all the notes and advices at all times, D1’s handling solicitor has reviewed each independently and upon concurring with the conclusions, provided the notes and advices to P discussing with and advising her.

18.  Notwithstanding the 2015 Note and 2015 Advices, P instructed D1 to lodge a Notice of Appeal which was drafted and settled by D2 and D3.

19.  On 2 March 2016, the Court of Appeal dismissed the Appeal. In the judgement (“the CA Judgment”), the Court of Appeal considered the main dispute to be the res judicata point (i.e. the Henderson Issue) and thus was prepared to assume for the purpose of the Appeal (without giving any consideration or decision on the matter) that P’s Negligence Claim were under tort and therefore fell outside the exclusive jurisdiction of the Labour Tribunal. This also meant that the Court of Appeal did not decide on the issue of limitation / time bar issue.

20.  Moreover, the Court of Appeal was also prepared to assume for the purpose of the Appeal that there was no effective waiver and release of BOCOM’s liability thus again, there was consideration or decision on this matter.

21.  As for the issue of res judicata, the Court of Appeal held that P had not given any explanation as to why she only decided to commenced the New Claims in 2014.

22.  Further, the Court of Appeal also rejected the argument that the High Court had no jurisdiction to deal with claims outside the jurisdiction of the Labour Tribunal after the transfer of the action to the High Court (i.e. the 1^st HCA).

23.  As discussed above, before this decision, there were two seemingly contrasting decisions regarding this issue between the case of Yu Hoi Po and the case of Dataprep. The Court of Appeal thus has affirmed the decision in Dataprep and overruled Yu Hoi Po. (Incidentally, D2 and D3 had already opined that “CA may prefer Datapre(p)” (paragraph 7(2) of the 1^st 2015 Note, Hearing Bundle B, page 45).)

24.  As such, the court of Appeal held that P could have raised the New Claims in the 1^st HCA and, as such, was barred from bringing the 2^nd HCA and thus dismissed the appeal.

25.  P filed a Notice of Motion for leave to appeal to the Court of Final Appeal on 30 March 2016. On 6 April 2016, P further filed a Notice of Intention to Act in Person and D1 ceased to act for P on the same day.

26.  P claimed that she has sought legal advice from Simon Westbrook SC on 18 April 2016 who allegedly advised her that D1, D2 and D3 had “overlooked” the issue of res judicata in the 2013 Note. P then withdrew her Notice of motion. (paragraphs 26 and 27 of the Statement of Claim of this case, Hearing Bundle A, page 9)

27.  P issued the current claim against D1, D2 and D3 on 12 May 2021 and served it on the defendants on 10 May 2022.

Legal principles

28.  Order 18 rule 19(1) of RHC states:

“The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) It discloses no reasonable cause of action or defence, as the case may be; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

29.  Mr. Robert Pang SC, counsel for D2 and D3 (“Mr. Pang SC”), submits further that a claim that is raised after the time limit stated in statute can be struck out:

“It is trite that a defendant may apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of process of the court on the ground that it is statute-barred.” (Wang Haihong (王海洪) v JP Morgan Securities (Asia Pacific) Ltd [2021] 4 HKLRD 770)

Time limitation

30.  The basis of P’s claim is based on liability in both contract and tort against the defendants (paragraph 29 to 51 of the Statement of Claim, Hearing Bundle A page 10-13) No other grounds of claim e.g. fraud is raised.

31.  The “Initial Breach” as pleaded by P concerned the 2013 Note which allegedly “failed to…apply legal principles properly, inter alia, Res Judicata…” etc. (paragraph 44-46 of the Statement of Claim, Hearing Bundle A page 12).

32.  If the defendants have committed any breach of contract as alleged, it is trite that the cause of action would have accrued on the date the 2013 Note was provided. (McGee, Limitation Periods (9^th ed) paragraph 10.002 and Kensland Realty Ltd v Tai, Tang & Chong (2008) 11 HKCFAR 237) This was 4 March 2013 so the 6-year limitation period for initiating any action for breach of contract would have expired on 4 March 2019.

33.  If the defendants have committed any negligence, the cause of action arose when the advice was acted upon i.e. 7 March 2013 when P accepted the Sanctioned Payment at which point P lost the opportunity to bring the New Claims.

34.  However, P attempted to argue that the cause of action only accrued when she suffered actual damages on the date of the CA Judgment (2 March 2016). P suggested because of the 1^st 2015 Advice that “appeal on res judicata at best 50:50”, her loss was contingent from 7 March 2013 to 2 March 2016. In other words, P argued that her loss was “contingent subject to the result of the appeal” (paragraph 73 on p. 16 of the plaintiff’s Skeleton Argument).

35.  In paragraph 74 of her Skeleton Submission, P referred to Law Society v Sephton & Co & Others [2006] UKHL 22 where the decision of the Australian case of Wardley Australia Ltd v State of Western Australia [1992] 175 CLR 514 was discussed.

36.  In fact, this same argument had already been raised in the Kensland case mentioned above and was firmly rejected by the Court of Final Appeal: as per Bokhary PJ and Sir Noel Power NPJ under paragraphs 50 to 54 of the judgment:

“Mr. Scott seeks to argue that no damage was suffered “until the Court of Appeal handed down judgment in the [original proceedings]” and therefore the cause of action only accrued on 23 January 2001, putting the issue of the writ well within the primary limitation period. In the draft Reply, there is a suggestion that damages was only incurred even later, that is, when this Court handed down its judgment on 10 December 2001. In my judgment, neither proposition is sound and Kensland’s argument must be rejected.

…A cause of action in tort accrues when the damages which results from the tortious conduct is real, as distinct from minimal or negligible and is actual, as oppose to purely contingent…

…Applying these principles, there can be no doubt that Kensland’s cause of action accrued on 2 September 1997…Kensland’s case is that it would have completed the sale but for TTC’s negligent advice…

…Instead, acting upon TTC’s advice, it refuses to complete and immediately incurred a liability in damages…

…Mr. Scott’s argument that no loss was incurred until the handing-down of court’s decision is untenable…Those decisions merely declared that the immediate legal consequence of Kensland’s refusal to complete on 2 September 1997 was the incurring of liability of the heads of loss…”

37.  McHugh NPJ put the legal principle succinctly under paragraph 155:

“…In the usual case of an action based on the negligent advice of a solicitor, the cause of action arises when the advice is acted upon…”

38.  More importantly, McHugh NPJ did refer to the Wardley case under paragraph 159:

“…In contending that it had suffered no damage before the Court of Appeal gave its decision, Kensland sought to rely on the decision of...Wardley Australia Ltd v State of Western Australia…However, In Wardley, the indemnifier did not and could not suffer damages until it was called to make good the indemnity. Until that time, its liability to pay damages was contingent only because it might never be called on…The principle of that case has no application to a case such as present where determination of liability and damages is dependent upon a judicial decision. Judicial decisions determine the rights and liability of parties as at the date when the facts giving rise to those rights and liabilities arose. If the contrary were true, no defence under limitation statutes could succeed…The rights of and liabilities of…Kensland were not fixed as at the date of the Court of Appeal’s decision…The Court of Appeal…declared the rights and liabilities of Kensland…as they existed as at 2 September 1997…”

39.  I would therefore reject P’s argument that there was only a contingent loss in the period of time between her acting on the 2013 Note on 7 March 2013 and the CA Judgment on 2 March 2016. Otherwise, as observed by the Court of Appeal in Kensland, time limitation would never run until P has somehow deemed to have exhausted all theoretically possible judicial procedural pathways.

40.  As such, the date that the 2013 Advice was acted upon was 7 March 2013. This was the date when “the damages which results from the tortious conduct is real, as distinct from minimal or negligible and is actual, as oppose to purely contingent”. The CA Judgment on 2 March 2016 merely determined P’s rights and liability upon her acceptance of the Sanctioned Offer on 7 March 2013.

41.  Indeed, as pointed out by Mr. Pang SC, P clearly pleaded under “Causation(s)” (paragraph 52 of the Statement of Claim, Hearing Bundle A, page 14) that she would have rejected the sanctioned payment and started the New Claims etc. “but for the defendants’ incorrect advice”. Thus even on P’s own case, the damages stemmed from the date P acted on the 2013 Note in accepting, rather than rejecting, the sanctioned payment.

42.  As such, the time limitation period for a negligent claim would have expired on 7 March 2019.

43.  Alternatively, if P were to argue “latent damage” under s31 of the Limitation Ordinance (the “LO”), i.e. that all along, she had not acquired the knowledge required for bringing an action (under s31(1)(a)), then the time limit would be 3 years from such date of knowledge (s31(4)(b)).

44.  Even in her own case, P had acquired the knowledge by 18 April 2016 when Mr. Simon Westbook SC allegedly advised her that the defendants had “overlooked the res judicata issue”. As such, the time limitation allowed under s31(4)(b) would have expired on 18 April 2019, more than two years before the writ of this action was issued on 20 May 2021.

Continuing breach

45.  In paragraphs 48 to 51 of the Statement of Claim, P suggested that the 2015 Notes “repeatedly erred” in advising that the New Claims were time barred and had weak merits thus constitute a continuing breach. (There were also other allegations concerning the Bar Code which would clearly be outside the jurisdiction of this court).

46.  P has provided no particulars to such alleged errors except to seemingly suggest that the advice concerning time bar was an error because the Court of Appeal deemed it “not necessary to express a view on limitation” (paragraph 49 of the Statement of Claim).

47.  However, the Judgment was based on findings on 4 grounds so when D2 and D3 were asked to give advice on the prospect of an appeal, they clearly needed to deal with all 4 grounds.

48.  It is clearly preposterous to suggest that it was the duty of care required of D2 and D3 to accurately speculate that the Court of Appeal would see only 1 out of all 4 grounds as the main dispute and should therefore only provide an advice on that ground alone. Quite the contrary, I think that providing an advice under such speculation may be considered inadequate, inappropriate and most probably negligent.

49.  P has also provided no particulars as to what the alleged error was regarding the advice on the merit of the New Claims. But in any case, this advice has nothing to do with the 2013 Note which concerned only with the issue of whether acceptance of the Sanctioned Payment might debar P from raising the New Claims. In the 2013 Note, D2 and D3 clearly stated that they have no opportunity to examine the merit of the New Claims and only assumed that they were meritorious.

50.  As such, even if the advice on the merit of the New Claims was somehow “in breach”, it would have constituted a new cause of action and not a “continuing breach” from the 2013 Note.

51.  Overall, the D2 and D3’s advice in the 2015 Notes was that “the prospect of success in this appeal was doubtful” (paragraph 1 of the 4^th 2015 Note, Bundle B page 5) and yet P chose to proceed. The appeal was accordingly dismissed by the Court of Appeal. I cannot see how D2 and D3 could be held to be in breach in any way in providing such advice.

52.  P explained that D2 and D3 provided the 2015 Notes in order to cover up their breach in the 2013 Note.

53.  If I can wrap my head around that: this would mean that D2 and D3, by giving the (clearly shown to be correct) advice that prospect of appeal was “doubtful” and “appeal on res judicata at best 50:50” etc., were merely trying to dissuade P from appealing so that the Court of Appeal would not be given the opportunity to produce the CA Judgment which would state that the main dispute was res judicata (thus picking only 1 out of the 4 grounds in the Judgment), a position which D2 and D3 somehow already knew (or at least could predict accurately) prior to the hearing before the Court of Appeal, so as to cover up their failure (as alleged by P) in addressing the issue of res judicata in the 2013 Note.

54.  Even P admitted in court that this was a conspiracy theory. In effect, she was alleging that the defendants were giving (a clearly good) advice with a “bad motive”.

55.  And if the whole exercise of D2 and D3 in the 2015 Notes were intended to “mislead” P to stop her from appealing, then the Judgment would stand. But even with the Judgment, one of the 4 grounds for striking out was already res judicata. So what was there to cover up if D2 and D3 really thought that they have failed to advise on res judicata in the 2013 Note?

56.  Conversely, one must then question whether it is P’s case that D2 and D3 should have instead advised her that the prospect of the appeal was good, so that she would proceed but then lose the Appeal?

57.  I would point out, without needing to question further about the sheer absurdity of this conspiracy theory, that the most fundamental problem with this allegation is that “motive” (good or bad) is an irrelevant consideration in negligence.

58.  In any case, this “continuous breach” claim is no more than a second bite at the cherry for the “contingent loss” argument and can be dismissed by the same legal principle in Kensland: “the damages which results from the tortious conduct is real” was when the 2013 Note was acted upon on 7 March 2013, and not when any action was acted upon on any advice in the 2015 Notes.

59.  In my view, the “continuing breach” claim is obviously unsustainable.

Fraud and deliberate concealment

60.  In paragraphs 81 to 90 of P’s Skeleton Argument, P quoted s26 of the LO which concerned fraud and deliberate concealment.

61.  Mr. Pang SC referred the court to the case of China Medical Technologies, Inc (in liquidation) and others v Bank of China (Hong Kong) Limited [2021] HKCFI 3042 which stated under paragraph 82:

“…Section 26(1)(a) only applies if fraud of the defendant is an essential element of the cause of action. If fraud is not an essential element, the fact that the pleadings also make reference to fraud or conduct amounting to fraud does not suffice…”

62.  P’s claim was made under: “breach of duties and / or professional negligence” (Indorsement of Claim, Hearing Bundle A, page 3). The pleadings in the Statement of Claim (paragraphs 29 to 51, Hearing Bundle page 10-13) were made upon two causes of action, contract and tort, against D1 (paragraphs 29 of the Statement of Claim) and tort against D2 and D3 (paragraphs 38, 40 etc. of the Statement of Claim).

63.  Fraud was clearly not an essential element in the cause of action against D1, D2 or D3. It must also follow that various case precedents quoted by P based on fraud are also irrelevant.

64.  As regards to deliberate concealment, Mr. Pang SC referred the court to the judgment of Lee Tsan Sum and Wong Pui Hon David, HCA No. 308 of 2004), under paragraph 39:

“…in respect of s.26(1)(b)…

…Concealment within the subsection means a deliberate concealment of relevant facts…

…A fact relevant to a plaintiff’s cause of action is an act without which the cause of action would be incomplete…

..The words “any fact relevant to a plaintiff’s cause of action” are to be given a narrower rather than wider interpretation: what must be concealed is something essential to complete the cause of action and it is not enough that evidence that might improve the claim is concealed, provided that the claim can be properly pleaded with it…”

65.  I cannot see any particulars pleaded by P as regarding what facts were alleged to be concealed, let alone showing that without such facts, the cause of action could not be completed.

66.  P submitted in court that she would rely on fraud, alleging as per her conspiracy theory (stated in paragraph 53 above), that D2 and D3 were deliberately misleading her. I need not repeat the mental gymnastics required to understand how this conspiracy theory is supposed to work: it is clearly absurd.

67.  Further, as stated in paragraph 55 above, with or without the CA Judgment, the Judgment already stated res judicata as one of the grounds of striking out. I cannot see what possible facts D2 and D3 could conceal regarding P’s claim that they have overlooked res judicata in the 2013 Note: P has the 2013 Note and the Judgment, so any cause of action must be clear even then.

68.  Needless to say, I would not entertain P’s suggestion that an opportunity be granted by the Court for possible future amendments of pleadings. The summons for striking out were taken out over 1 year ago and P has, all along, made no application to amend the Statement of Claim. Further, given the pleaded facts in P’s case and her submission in court, I cannot find any reason to believe that the case can be improved by any amendments (Hubbuck & Sons Ltd. v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86, 94 and Hong Kong Civil Procedure 2023 Vol 1 paragraph 18/19/4, page 548)

69.  The claim can be struck out as frivolous and vexatious and an abuse of process of the court on the ground of time limitation alone (see the Wang Haihong case above). However, for the sake of completeness, I will consider a further ground advanced by D1.

No reasonable cause of action against D1

70.  Ms. Bonnie Cheng, counsel for the D1 (“Ms. Cheng”), also submitted this as a further ground for striking out.

71.  The legal principle for finding a solicitor negligent to his client is trite: in the case of Ng Chiu Mui v Robertsons (HCA 1166/2010, 3 November 2014), Hon To J has summarised the standard of care under paragraphs 54 to 59 as follows:

“…The law does not impose liability…for a solicitor’s error unless no reasonably well-informed and competent member of that profession could have made that error…”

“…the court is only concerned with appropriate standard of care at the date which the relevant actions took place and without the benefit of hindsight…Thus, even if the choice actually made by a solicitor can be shown to have turned out badly, that is not in itself proof of negligence…”

“…it is much harder to show breach of duty by proof of error of judgment as opposed to basic mistakes. As was said by Lord Hoffman…

“I think that the inherently risky and unpredictable nature of litigation is the reason why judges are more generous to solicitors in fixing the standard of care than they are in conveyancing.””

“…a solicitor does not warrant to obtain a particular result…”

“…if a solicitor acts in accordance with the advice of counsel, whom he has properly instructed, he will not be held to be liable even if it turns out that the counsel’s advice is wrong…”

“…a solicitor’s duty only extends to recording reservations or rejecting counsel’s advice where it is obviously or glaringly wrong…”

72.  There is no dispute that D1 has acted in accordance with the advice of counsels D2 and D3 in the 2013 Note (the relevant paragraphs of which are quoted under paragraph 8 above).

73.  The 2013 Note started off fairly stating that: “This issue is not without difficulty” and the following two paragraphs discussed the for and against arguments, thus properly explaining the difficulties of the issue.

74.  The fact that it concluded with an advice that turned out later to be against the decisions of the courts cannot be “in itself proof of negligence” because a solicitor “does not warrant to obtain a particular result”, especially when such advice was clearly qualified by a warning that:

“the lay client must be aware that the matter is not without doubt, and that responsible argument can be mounted (and which may succeed) in support of the contrary view.”

75.  P’s case was that this advice was “in contrary to the principles of Res Judicata…” (paragraph 45 of the Statement of Claim, Hearing Bundle page 12)

76.  I disagree.

77.  Although the 2013 Note did not specifically spell out those Latin words, the advice “there can be no other claim(s) on the same issue” is the English explanation of this legal principle and its effect. The advice was clearly not “in contrary” to the said principle.

78.  I therefore agree with Ms. Cheng that an objective review of the 2013 Note does not reveal any advice that is “obviously or glaringly wrong”. Indeed, I find that it is very far from that: it is a measured and well-balanced advice.

79.  The court is not conducting a mini-trial here but even after hearing P in court (who seemed to suggest that there is a duty of care for any legal adviser that any legal advice rendered must predict accurately all the arguments stated in the eventual judgment of the court), I find no obvious sustainable case of negligence against D2 and D3.

80.  As such, it must also follow that there is no reasonable cause of action against D1 in negligence.

Conclusion

81.  Given the above considerations, I find P’s claim against D1, D2 and D3 frivolous and vexatious and is an abuse of process of the court on the ground that it is time-barred. I further find that P has no reasonable cause of action against D1.

82.  I would accordingly order that P’s claim against D1, D2 and D3 be strike out and there be a cost order nisi that P should pay the cost of the action, including the costs of the Summonses, to D1, D2 and D3 with certificates for one Counsel for D1 and one Counsel for D2 and D3, to be taxed if not agreed.