CHOW SIU PO v. WONG MING FUNG

HCAP 3/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 1998

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R U L I N G

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1. I handed down a judgment in this action on 30 January 2003. At paragraphs 122 and 123 of that judgment, I explained why I was unable to pronounce for the 1990 Will at that stage. The parties appeared before me on 26 June 2003 to argue whether the Plaintiff should be allowed to re-open his case to adduce evidence of due execution of the 1990 Will. At that hearing, Mr Yau was unable to cite any authorities on the proper approach of this court in considering his application for re-opening his case. I found that to be unsatisfactory. After a short break, I referred counsel to several English authorities, including Charlesworth v Relay Roads Ltd [2000] 1 WLR 230, Steward v Engel [2000] 1 WLR 2268 and Hertfordshire Investments Ltd v Bulb [2000] 1 WLR 2318. Since counsel needed time to consider these cases, the matter was adjourned and directions for filing written submissions were given. Mr Yau filed his submission on 3 July 2003. Mr Wong, counsel for the Defendant, indicated to this court at the hearing of 26 June 2003 that his client might not be interested in instructing him to file submissions. As it turned out, Mr Wong did not file submissions in response to Mr Yau's submissions.

2. Whilst I accepted that the focus of the parties at the trial was on the 1994 Will, I see no basis for Mr Yau's misconception that this part of the trial only related to the validity of the 1994 Will. I referred to the circumstances leading to the stay of prayers (c), (d) and (e) in paragraph 2 of my judgment of 30 January 2003. Apart from the stay of those prayers, I also made an order on 25 March 2002 that the trial of prayers (a) and (b) be adjourned part-heard to a date to be fixed with an estimate length of 8 days. That part of the trial resumed on 2 December 2002. Prayer (b) of the Statement of Claim sought an order that the 1990 Will be admitted to probate as the last will and testament of the deceased. Hence, it should have been clear to all the parties that the Plaintiff should adduce his evidence to support the due execution of the 1990 Will at the restored trial. Further, stay of prayers (c) to (e) was pending the production of a grant of probate in favour of the Plaintiff. Obviously, there could only be a grant in favour of the Plaintiff after relief was granted to the Plaintiff under prayer (b).

3. Mr Yau submitted that the Defendant had admitted the due execution of the 1990 Will by paragraph 4(c) of the Amended Defence. I have read that paragraph together with paragraph 5 of the Statement of Claim in which the execution of the 1990 Will was pleaded. It seems to me paragraph 4(c) was equivocal. On the one hand, it denied paragraph 5 of the Statement of Claim. On the other hand, it also pleaded that "by virtue of the [1994 Will], the Will executed by the deceased on 10 July 1990 was revoked and had no effect". Mr Yau submitted that due to such admission, the Plaintiff did not need to prove the 1990 Will.

4. I think that submission overlooks the significance of a decree of a probate court pronouncing for the validity of a will. It has to be appreciated that such a decree has effects over and above a binding decision between the immediate parties to the probate action. A grant of probate, either in common form or in solemn form, is the only means by which a will can be proved. Once it is so proved, third parties could rely on the grant and in certain contexts, the grant is conclusive as to the title of the executor (see Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 18th Edn., Para. 41-04).

5. Further, the proof of a will is different from the proof of other instruments. Section 42 of the Evidence Ordinance provides that generally in the proof of an instrument the validity of which attestation is required can be done by any form of proof. The evidence of the attesting witness is not essential. But the rule does not apply to the proof of wills. Hence, in respect of wills, the common law rule as to proof of document by attesting witness still applies (see Phipson on Evidence, 15th Edn., Para. 40-13 to 40-18). The attesting witness is a witness of the court instead of a witness of a party (see Oakes v Uzzell [1932] P 19).

6. There is a distinction between a grant in common form and a grant in solemn form. In the former, those whose interests are adversely affected may later challenge the validity of the will. But this cannot be done in respect of a grant in the solemn form unless there is evidence of fraud or later will being discovered (Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 18th Edn., Paras. 20-01 and 20-02).

7. These, I believe, are the reasons why even in undefended cases or compromised cases, for a grant in solemn form, the court will normally require evidence from at least one attesting witness to prove the due execution of the will although such evidence could be in written form (see Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 18th Edn., Paras. 39-03 and 39-10). In short, the proof of a will in a probate action cannot be waived by the parties.

8. The Plaintiff has filed an Affirmation of Chan Yim Wah on 19 June 2003 deposing to the due execution of the 1990 Will. Mr Chan was one of the subscribing witnesses to that will. This shows that evidence of at least one attesting witness is available. Hence, the present case is not one in which all the attesting witnesses are dead, out of the jurisdiction or otherwise unavailable where resort must be made to secondary evidence.

9. Mr Yau urged me to grant leave to the Plaintiff to re-open his case to adduce the evidence of Mr Chan. He submitted that there are exceptional circumstances justifying this course to be taken. He accepted that the principles set out by Neuberger J in Charlesworth v Relay Roads Ltd [2000] 1 WLR 230 at p. 238 E to H are applicable,

"(1) the court has jurisdiction to grant an application to amend the pleadings to raise new points and/or to call fresh evidence and/or to hear fresh argument; (2) the court must clearly exercise its discretion in relation to such an application in a way best designed to achieve justice; (3) the general rules relating to amendment apply so that: (a) while it is no doubt desirable in general that litigants should be permitted to take any reasonably arguable point, it should by no means be assumed that the court will accede to an application merely because the other party can, in financial terms, be compensated in costs; (b) as with any other application for leave to amend, consideration must be given to anxieties and legitimate expectations of the other party, the efficient conduct of litigation, and the inconvenience caused to other litigants; (4) quite apart from, and over and above, those principles, because it is inherently contrary to the public interest and unfair on the other side that an unsuccessful party should be able to raise new points or call fresh evidence after a full and final judgment has been given against him, it would generally require an exceptional case before the court was prepared to accede to an application where the applicant could not satisfy the three requirements in Ladd v. Marshall; (5) almost inevitably, each case will have particular features which the court will think it right to take into account when deciding how to dispose of the application before it; (6) the court should be astute to discourage applications which involve parties seeking to put in late evidence, but cases where new evidence is found after judgment is given and before the order is drawn up will be comparatively rare."

10. These were said in the context of an application to re-open the case with proposed amendments to pleadings after judgment had been given substantially against a party but before the term of the order had been agreed. Similar approach was adopted by the English Court of Appeal in Stewart v Engel [2000] 1 WLR 2268 in dealing with an application to re-open the case for leave to amend a statement of claim after judgment had been delivered on a striking out application. In that case, Sir Christopher Slade, after reviewing the principle set out in In re Barrell Enterprises [1973] 1 WLR 19, stressed the need to show exceptional circumstances at p. 2276,

"At least until the coming into force of the Civil Procedure Rules, the Barrell decision would have been clear authority, binding on this court, for the proposition that only in exceptional circumstances can it be proper for a judge to exercise his discretion under the relevant jurisdiction to vary a previous order of his once such order has been made. It may be that now, having regard to the Civil Procedure Rules and what was said as to their effect in the Biguzzi case [1999] 1 W.L.R. 1926, the Barrell decision [1973] 1 W.L.R. 19 is no longer strictly binding authority. Nevertheless, all the considerations which led the court to decide as it did in that case in my judgment still apply. They are in my judgment not merely consistent with, but also a proper application of the overriding objective of enabling the court to deal with cases justly as stated in C.P.R., r. 1.1(1), having regard to all the various factors that fall to be taken into account, by virtue of rule 1(2), in dealing with cases justly. In the present case, in my judgment, we therefore have to look to see whether in November 1999 there existed exceptional circumstances sufficient to justify the judge in exercising the Barrell jurisdiction."

The justification for such stringent requirement was that "there must be some finality in litigation and litigants cannot be allowed unlimited bites at the cherry" (see p. 2275).

11. In the present case, as it is apparent from paragraph 123 of my judgment of 30 January 2003, I did not finally dispose of prayer (b) in the Statement of Claim. The Order and Judgment drawn up pursuant to my judgment did not deal with prayer (b). However, it remains that judgment had been delivered after a trial in which prayer (b) is a live issue. In general, the court should not offer an opportunity to a litigant to supplement his evidence after judgment. In Born Chief Co v Tsai George [1996] 2 HKC 282 at p. 292E, Nazareth VP (as he then was) said,

"Such a result ... must have offended the judge's sense of justice. But the good, efficient and increasingly, the affordable administration of justice requires that parties present their entire cases and cannot expect a second bit at the cherry simply because they failed to ... produce their requisite evidence."

Hence, I am of the view that Mr Yau was correct in accepting that he must show exceptional circumstances to justify the re-opening of the case for the purpose of adducing the evidence of Mr Chan.

12. The crucial issue is therefore whether there are exceptional circumstances to justify the re-opening of the case as to prayer (b). In this connection, in Townsend v Achilleas (unreported, 6 July 2000), the English Court of Appeal held that the test is slightly more flexible than Ladd v Marshall when the application to re-open the case is made to the trial judge instead of the Court of Appeal. Mummery LJ said,

"In principle, however, it is difficult to see why there should be a more restrictive test for the reception of fresh evidence by the judge who has tried the case than would be applied by the Court of Appeal on an appeal from the judge. Indeed, there is a good case for the cautious application of a slightly more flexible test for the reasons given by Neuberger J in Charlesworth v Relay Roads Ltd (supra) at 238 B-H. The trial judge would have the advantage over the Court of Appeal of having seen the witnesses. He would be in a better position to look at the evidence as a whole closer to the trial. In that way it might be possible to avoid the risk of the Court of Appeal having to inflict on the parties the expense and delay consequent on ordering a retrial by a different judge at a much later date."

13. It is obvious that the Plaintiff cannot satisfy the first requirement of Ladd v Marshall. Mr Yau had not suggested that the evidence of Mr Chan could not have been obtained by the Plaintiff's solicitors before the trial had they exercised reasonable diligence. In the end, I am satisfied that there are exceptional circumstances here which justify my exercise of discretion in favour of granting leave to re-open the case for the evidence of Mr Chan to be adduced.

14. Firstly, the Defendant in the present case through her counsel Mr Wong indicated to this court at the hearing of 26 June 2003 that she had no interest in respect of the proof of the 1990 Will and she did not intend to participate at any future hearing regarding that issue. Mr Yau also pointed out correctly that throughout the trial, the Defendant had not adduced evidence nor advanced any serious challenge to the due execution of the 1990 Will (perhaps with the exception of the surmise of Dr Singer which I alluded to in Paragraphs 93 and 94 of my earlier judgment, on which Mr Wong did not place much reliance).

15. Secondly, as I have explained above, the proof of the 1990 Will is a matter of importance not only as between the Plaintiff and the Defendant but also for some third parties. Mr Yau rightly reminded me of the interest of the beneficiaries under the 1990 Will. Contrary to the submission of Mr Yau, given that they appeared to have notice of the action, they could be bound by a judgment in this action (see Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 18th Edn., Para. 20-04).

16. Thirdly, as explained, the attesting witness is a witness of the court and I should perhaps share some responsibility in not raising any concern about the omission to call evidence from him in the course of the trial. It is the duty of a court of probate to give effect, if it can, to the wishes to the testator as expressed in testamentary documents and this court should not lightly pass over a document which is apparently a valid testamentary document (see In re Muirhead [1971] P 263 at p. 265). In view of the stance of the Defendant and the Affirmation of Mr Chan, I would not be discharging my duty properly if I dismiss prayer (b) in the circumstances of the present case.

17. For these reasons, I grant leave to the Plaintiff to re-open the case concerning prayer (b) and to adduce evidence of Mr Chan by way of his affirmation of 19 June 2003. I also grant liberty to the Defendant to apply within 7 days from the handing down of this Ruling for leave to cross-examine Mr Chan if she so wishes, failing which I shall assume she maintains her position of not taking part in the re-opened trial of prayer (b). In the latter event, I shall decide the matter on paper without a further hearing.