SUSAN CAROLINE BERRY v. WILLIAM ALL

1995, No.MC 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(DIVORCE JURISDICTION)

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R U L I N G

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1. The parties have appeared before me to argue three separate summonses.

2. The first summons has been issued by Respondent, Mr William Allan, and may be described as an 'unless summons'. It requires Petitioner, Dr Susan Berry, Mr Allan's wife, to provide further and better particulars of a contentious historical issue; namely, the manner in which she dealt within the family in obtaining and prescribing certain medicines and drugs. The remaining two summonses have been issued by the Petitioner, Dr Susan Berry. These seek directions for trial; one in respect of the intended custody hearing, the other in respect of the ancillary relief hearing.

A Brief Background

3. The parties were married to each other in England on 18^th June 1988. They settled in Hong Kong very shortly thereafter, the Respondent coming from a Hong Kong family. The Petitioner is a medical doctor, the Respondent practises at the Bar. A child, Natasha, was born on 22^nd February 1989. She is the only child of the marriage. It appears that within a year or two unhappy differences had surfaced in the marriage which led to considerable emotional turbulence. On 29^th April 1994 ? more than three and a half years ago ? the Petitioner instituted divorce proceedings in the District Court. They were defended. The turbulence experienced in the marriage was then transferred to the process of litigation.

4. Nothing is served in reciting the numerous interim and interlocutory matters that have fallen for resolution. Suffice to say that the majority of matters were hotly contested. Sensibly, however, the parties were able to set aside their differences and agree at least to the divorce proceeding on an uncontested basis. Accordingly, a decree nisi was issued in favour of the Petitioner on 4^th November 1994. With the welfare of the child still in issue, the decree has not yet been made absolute.

5. On 27^th October 1995, Judge Gill ordered that the matter be transferred from the divorce jurisdiction of the District Court to the High Court. The matter has rested here since that time. Frankly, at this juncture, neither of the two central disputes; that is, custody and ancillary relief appear to be anywhere near finality. Costs, however, continue to mount. Enmity pervades each and every appearance. This is regrettable. Both parties, are relatively young. Hopefully, when this litigation is finally concluded, they will both have full and happy lives ahead of them. It goes without saying that the welfare of Natasha, the child of the marriage is of overriding importance. Her future must be resolved as soon as possible if only to give the child a sense of stability. But as Judge Gill noted in his judgment of 27^th October 1995, the material assets of the parties which fall for resolution in ancillary relief proceedings are not 'hugely valuable or diverse'.

6. When one of the earlier matters in contention was taken on appeal, the Court of Appeal itself felt it necessary to comment on the length and perils of the litigation. Bokhary J.A. (as he then was) said as follows :-

" I have the greatest sympathy for both parties. This marriage seems to have almost destroyed them. And this litigation, if one is not careful, will complete that process of destruction."

The future conduct of these proceedings

7. I thought it necessary to set out this brief background in an attempt to show that, in the interests of the parties and especially of Natasha, this litigation must be brought to finality as soon as possible. A time is reached when, to protect the interest s of the parties and the integrity of its own process, the Court must take a more forthright role in ensuring that costs are saved and finality is attained.

8. At the end of this ruling I have set out a number of directions. They will be complied with step by step and in accordance with the times set. Failure to comply by either party may well be met by an order for costs immediately taxable and payable.

9. The litigation to date has been marked by an alarming number of interim and interlocutory applications brought both inter partes and ex parte. I do not criticise any. I say simply that the parties must learn to co-operate. If any future applications are filed (other, of course, than by consent) the issuer must ensure that such applications are of such necessity that they cannot be left for resolution at the final hearing.

The continued representation of Respondent by his sister

10. Although this has not been the subject matter of any summons, Petitioner's counsel has again expressed misgivings concerning the continued representation of Respondent by his sister, those misgivings being focused especially on the forthcoming substantive hearings. To a degree, I share those misgivings.

11. The sister's representation goes back a long way in these proceedings. By notice dated 17^th October 1995, the Respondent advised that he would no longer be legally represented but would act in person. He cited financial difficulties as his reason. Shortly thereafter, however, a body of medical evidence was placed before the Court which indicated that the Respondent was so emotionally disturbed by the events of his marriage that he was not capable of appearing in personam without endangering his health.

12. In the result, initially without any opposition from Petitioner's legal representatives, Respondent began to be assisted in various matters by his sister, Dr Alison Allan. I understand that she is a dentist by profession. However, as Dr Allan's representation became fuller and more assertive, as she effectively took over the role of advocate, it met with opposition from Petitioner. Indeed, this opposition resulted in an appeal (Civil Appeal No.170 of 1996). The appeal arose from an order made by Chan J. (as he then was) in respect of certain interlocutory proceedings in terms of which it was ordered that Dr Allan be allowed 'to continue to act for the Respondent in view of the medical history of the case'.

13. In its judgment, the Court of Appeal held that the judge clearly had discretion to regulate the proceedings before him by allowing Dr Allan to appear. As was said by Nazareth V-P :-

"... What happened was that on behalf of the husband it was suggested that he was not able to conduct the proceedings due to his medical condition. The judge apparently aware of the previous non-objection to Dr Allan and the earlier medical evidence accepted the latter on an interim basis and made his order. He certainly had discretion to do so. He also had jurisdiction to regulate the proceedings before him and to allow Dr Allan to act in those proceedings before him. On the evidence before him, he could plainly have come rationally to the conclusion that the respondent was not able effectively to conduct the proceedings on his own behalf. I can see nothing irrational or wrong about allowing his sister to do that for him."

14. However, it was made clear that, even if the order was intended to be open-ended, it was reviewable and could therefore be changed depending on the exigencies of the litigation. In this regard, Bokhary J.A. (as he then was) said the following :-

" His decision does not bind any other judge. It does not extend to any other application. If any other judge were to misunderstand the position and think otherwise, then the error would be that of the other judge ..."

15. Nor, with respect, does anything appear in the judgment of the Court of Appeal which extends the principles enunciated (and so long accepted) in McKenzie v. McKenzie [1970] 3 All ER 1034. In this case, a husband, untutored in the law and no longer on legal aid, appeared in person at a contested divorce hearing with a solicitor who was there as a friend to quietly guide and assist the husband. The presiding judge ruled that he should not be there. On appeal, Sachs L.J. said as follows ?

" Mr Hanger, however, had done nothing, so far as this court has been able to ascertain, other than sit quietly beside the husband and give him from time to time some quiet advice or prompting. In those circumstances, the husband was fully entitled to have that assistance, and Mr Hanger was fully entitled to give it. That was settled in 1831 when Lord Tenterden CJ [Collier v. Hicks [1831]2 B & Ad 663] said -

' Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice ...'

That statement of the position has never been criticised since."

16. The principle was again clearly stated in R. v. Leicester City Justices, ex parte Barrow [1991] 3 All ER where a number of applicants appearing in person before the justices sought the assistance of a person more knowledgeable than they to sit at their side, take notes and render quiet assistance. The justices refused them that privilege. On appeal, Lord Donaldson MR said :-

" A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene. Thus he can bring books and papers with him, pens, pencils, his spectacles, a hearing aid and any other form of material assistance which he thinks appropriate. Subject to them not being of extraordinary volume and unusual nature, there is no need for the matter to be mentioned to the justices or their clerk. If he wishes to have an adviser, as contrasted with an advocate, it is convenient that he should mention this fact to the justices or to their clerk in order that they may know why the person concerned is sitting next to the defendant, rather than in the space reserved for the general public. Furthermore, the justices or their clerk may reasonably wish to know whether this adviser is likely to be called as a witness and should not hear the evidence of other witnesses, if exclusion from court whilst that evidence is being given is usual in that class of case. They may reasonably also wish to know that the adviser is not claiming rights of audience or proposing to exercise them on behalf of the party. ... But if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature of degree or if it becomes apparent that the 'assistance' is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice by, for example, causing the party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious question."

17. It is not disputed therefore that this court has a discretion to allow Dr Allan to appear with the Respondent in order to take notes, make suggestions and give advice and indeed, in the pressing medical circumstances of this case, to take a more active role in representing him. What is of concern is the degree of that representation in future substantive applications and indeed whether that representation will continue to be advisable at all.

18. Dr Allan's representation of her brother is a matter to be decided by the judge at each and every hearing. I do not wish to be thought, therefore, to be pre-judging any future application by Dr Allan to continue to represent her brother or to be attempting to bind any other judge. I am not. However, with the substantive hearing on custody and ancillary relief to be heard in the new year, I thought it best to express some provisional misgivings at this stage so that neither the Respondent nor Dr Allan are caught unawares.

19. Dr Allan, rather than assisting the Respondent in the manner described by Lord Tenterden in Collier v. Hicks has assumed the forthright role of advocate. On one occasion she attempted to appear without the Respondent, freeing him to carry on his barrister's practice in another court. She was directed that should not happen again and has complied fully with that direction. The fact remains, however, that she is now very much the 'barrister' in the case. In the special circumstances of the case this may continue to be acceptable. What concerns me, however, is that Dr Allan is not an independent third party representing the litigant with professionally detached objectivity. Although she has displayed an excellent grasp of the law and has an incisive intellect, from what I have seen she is clearly emotionally involved with her brother's cause. That is, of course, understandable but it does often bring into the proceedings a high level of feeling.

20. When, for example it comes to the custody hearing, what will this mean? It will mean that Dr Allan, who has not disguised her personal feelings for the Petitioner, will be cross-examining a woman who has not disguised her own acute feelings of dislike for Dr Allan. In such circumstances, it seems to me that the danger of feelings of personal animosity clouding the central issue; namely, the best interests of the child, is indeed a real danger. Accordingly, the 'proper and efficient administration of justice' may be jeopardised. In respect of the ancillary relief proceedings, there is also the difficult matter of Dr Allan being a potential witness.

21. Accordingly, in respect of the substantive custody and ancillary relief hearing, should Dr Allan continue to seek to represent her brother, it is my ruling that the Respondent should set the matter down so that directions may be given by the trial judge who will be able to consider the merits of the application at that time.

22. In passing, may I suggest that the Respondent actively considers a further approach to Legal Aid in light of his altered circumstances. It is likely, in my opinion, that the judge who hears any application by Dr Allen to continue to represent her brother will wish to know whether such an application has been made.

The 'unless summons'

23. On 11^th March of last year, the Respondent issued a summons seeking a stay or dismissal of the Petitioner's action if she failed to rectify her 'prolonged or inordinate and inexcusable delay' in providing certain information concerning the manner in which she had obtained and prescribed medicines and drugs to the Respondent and Natasha, the child of the marriage. The supply of this information had originally been ordered by Judge Gill in terms of a written ruling dated 27^th October 1995. In that ruling Judge Gill summarised the issue in the following words -

" Ancillary relief, as I have said, is pending. The husband has raised as a material issue his ill-health. The wife is a doctor. There are to be resolved his allegations that she has by excessive prescription of toxic drugs rendered him an addict with all the adverse consequences as to his health, past, present and future, that follow"

24. At his juncture I should say that Respondent has now broadened the scope of the issue by making certain allegations that the Petitioner may not be acting with impeccable responsibility in the prescription of medicines to Natasha and that this may be an issue of relevance in the custody hearing.

25. In his written ruling, Judge Gill referred to the information sought by Respondent as follows -

" Those matters that the husband seeks disclosure of fall into three categories. The first is a request for information on the quality and nature of medication the wife extracted from the medical practices which employed and now employ her, somewhat informally noted in the drugs registers as 'for family use', the better to establish what it was that was administered to him as to type and quantity; also in this category is a request to see the wife's diary in order to disclose her notes on the husband's health and treatment and such other documentary or other evidence she has in this regard. The second is disclosure of what information the wife may have given the doctor selected to examine the husband. The third concerns data held at the practices relating to the husband and the family."

26. The judge ordered that the information falling into the first category should be disclosed. In this regard, he said -

" Rejecting the wife's claim that the husband is engaging in a fishing expedition I regard it appropriate that she should disclose those matters which I have designated as falling into the first category. There is prima facie indication that an unusually high quantity of toxic medication was removed and no formal doctor patient records are now available to disclose how or to whom these were administered. Given the husband's allegations as to his state of health it is proper that full disclosure of such information as may assist in this regard be available to him - subject of course to the medical issue becoming a live one."

27. He ordered, however, that there was no burden on the Petitioner to supply information falling into the remaining two categories.

28. It is the Petitioner's contention that the order of Judge Gill was complied with as fully as possible in her affidavit of 19th April 1996 and that there has therefore been no disregard of the learned judge's order. I have read that affidavit and gone through the annexures. On the face of the documents alone and without cross-examination of the deponent (which is a matter for the substantive hearings) I do not believe it can be said that there has been a clear disregard of Judge Gill's order. For example, documents cannot be discovered if it is alleged that they no longer exist.

29. I accept, of course, that the Respondent may well wish to seek further and better particulars of various matters raised by the Petitioner in her affidavit and I will make directions accordingly. These will enable Respondent to submit a request for further particulars in terms of Order 26 of the Matrimonial Causes Rules, Cap.179, concerning the 'medical issue' matters either referred to by Petitioner in her affidavit or, failing that, within the confines of the order of Judge Gill to which I have referred supra.

The custody issue

30. It is important that the issue of Natasha's best interest be resolved as soon as possible. The Petitioner's summons of 2nd April of this year seeks directions in this regard. I have given such directions in the orders which appear at the end of this ruling.

31. It will be seen that I have made an order that a social welfare report be prepared. However, should either party believe that the report of another expert be required, for example, a child psychologist, in the absence of agreement, the Court will be prepared to hear a further application for directions.

Ancillary relief

32. By summons dated 15th February 1996, the Petitioner sought directions in regard to the ancillary relief hearing. There is nothing contentious in what is sought. My orders are self-explanatory.

Should there be separate hearings for custody and ancillary relief?

33. It is often the case in matters of this kind that the custody issue is resolved first. There is good reason for the practice. For example, occupation of the family home may well be decided by first resolving which party is given the day-to-day responsibility of caring for the children of the marriage. In this present case, perhaps to some degree because of my own intimations, it has been anticipated that there will be two separate hearings. However, having given the matter lengthy consideration, I am now of the view that there should be one combined hearing only.

34. First, from what I have heard, it is apparent that the highly contentious and complex issue of the Respondent's medical condition, while central to the matter of ancillary relief, will also have a material bearing on the matter of custody. It would be wasteful in terms of costs, time and emotional wear and tear if that single contentious issue had to be canvassed twice.

35. Second, as I have made clear, it is imperative that all outstanding issues between the parties be brought to finality as soon as possible. Two separate hearings will lengthen rather than shorten the remainder of this litigation.

36. Third, from the little that I have seen and read of the papers, it does not appear that the material affluence of the parties is such that a separate ancillary relief hearing is required.

37. Accordingly, there will be a direction that both custody and ancillary relief issues be heard together.

Orders

38. My orders, therefore, are as follows -

1

(a) That Respondent's summons dated 11th March 1996 be dismissed. (b) That Respondent may, however, within twenty one (21) days of the date of this order file and serve a request for further particulars concerning the medical matters attested to by Petitioner in her affidavit of 19th April 1996 and/or allowed by His Honour Judge Gill in his ruling of 27th October 1995. (c) That Petitioner shall answer any such request within twenty one (21) days of receipt thereof.

2. That as concerns custody, care and control of the child of the marriage, Natasha -

(a) Respondent shall within thirty (30) days of the date of this order file and serve his affidavit. (b) Petitioner shall file her affidavit within twenty one (21) days thereafter. (c) No further affidavit shall be filed by either party without leave of the court first had and obtained. (d) A social welfare report shall be requested by the court, copies of such report to be made available to both parties. (e) Should either party wish to obtain the report of any other expert, in the absence of agreement, there shall be liberty to apply.

3. That as concerns matters of ancillary relief ?

(a) Respondent shall within thirty (30) days of the date of this order file and serve his final affidavit of means. (b) Petitioner shall file her final affidavit of means within twenty one (21) days thereafter. (c) No further affidavit concerning matters of ancillary relief shall be filed by either party without leave of the court first had and obtained.

4. That matters of both custody and ancillary relief shall be heard together. Petitioner shall upon notice apply for dates of hearing within twenty one (21) days of the date of this order, such dates not to be before 1^st April 1998.

5. That should Dr Alison Allan wish to represent the Respondent at the trial of the custody and ancillary relief issues, Respondent shall, at least twenty one (21) days before trial, upon notice, apply for directions in regard thereto.

6. That costs related to all three (3) summonses which are the subject of this ruling are to be costs in the cause. This order shall in the first instance be an order nisi with liberty to apply within thirty (30) days.