LAU CHI SUM v. LAU CHI LAM AND ANOTHER

HCMP 911/2020

[2020] HKCFI 2771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 911 OF 2020

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REASONS FOR DECISION ON COSTS

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Introduction

1.  On 22 October 2020, I made two costs orders in respect of two summonses taken out by the Plaintiffs.  Hereunder are my reasons.

Background

2.  The Plaintiff is one of the beneficiaries of the estate of his late father (the “Estate”).  The Defendants are executors and trustees of the Estate (the “Executors”).  For reasons which I need not delve into, the Executors delayed in rendering the Estate’s account and in making interim payment to the Plaintiff.  In November 2019, the Executors received about $38 million which the Estate had previously paid into court. The sum was deposited into an account in Nanyang Commercial Bank under the joint names of the two Executors.  

3.  On 24 June 2020, the Plaintiff issued an originating summons (the “Originating Summons”) seeking, inter alia, the following relief:

(1)     that the Executors render a complete and accurate account of the Estate (the “Account”) within 14 days;

(2)     the Account shall be prepared in accordance with accepted Hong Kong accounting standard and practice, supported by necessary documents and verified by an affirmation of the Executors;

(3)     the Executors pay the Plaintiff interim payment in the sum of $3,324,776; and

(4)     the Executors pay the Plaintiff all sums or proceeds found to be due to the Plaintiff on the taking of the Account.

4.  After some negotiations between the parties’ solicitors, it was agreed that the Plaintiff was at least entitled to $3,324,776 distribution from the Estate (the “undisputed sum”).  The Executors were prepared to make interim payment to the Plaintiff. However, one of the Executors, Ms Deng, who is resident in the Mainland was unable to come to Hong Kong because of the Covid-19 pandemic to authorize payment out of the bank account.

The correspondence between the parties’ solicitors

5.  On 30 September 2020, the Executors’ solicitors wrote to the Plaintiff’s solicitors informing them that the Account could not be completed because of two ongoing proceedings in respect of the Estate issued by an alleged wife or concubine of the late father.  They said that Ms Deng had obtained a three-month exit and re-entry permit to travel to Hong Kong and would be able to issue a cashier order for payment of the undisputed sum.  They offered (i) to pay the undisputed sum with interest from 7 January 2020 to 7 April 2020 and (ii) that there be no order as to costs of the Originating Summons.  

6.  On 6 October 2020, the Plaintiff’s solicitors responded in a without prejudice letter stating that the payment was not the only relief sought in the Originating Summons.  Probably they were referring to the Account which for reasons as explained could not be completed.

7.  On the same day, the Executors’ solicitors replied in a without prejudice letter asserting that as Ms Deng has obtained exit and re-entry permit and would be able to stay in Hong Kong until mid-December 2020 to complete the Account by 20 December 2020.  They enclosed a cashier order payable to the Plaintiff in the sum of $3,344,670, which included the undisputed sum and interest up to 7 April 2020.  They proposed (i) to render a complete and accurate Account of the Estate on or before 20 December 2020; (ii) that the Account shall be prepared in accordance with accepted Hong Kong accounting standard as required by the Plaintiff, and be verified by an affirmation of the Executors; (iii) to vacate the hearing on 22 October 2020; and (iv) that there be no order as to costs of the Originating Summons. 

8.  On 7 October 2020, the Plaintiff’s solicitors replied by an open letter asking (i) for payment of the undisputed sum; (ii) the duty to the Account; and (iii) costs of the Originating Summons to be agreed in the sum of $135,000.  They also asked for confirmation by 4 pm on 9 October 2020 if Ms Deng could come to Hong Kong to execute the payment of the undisputed sum otherwise the Plaintiff would issue a joinder summons seeking a vesting order against Nanyang Commercial Bank.  It should be noted that the Plaintiff’s solicitors totally ignored what was said by the Executors’ solicitors in their without prejudice letter of 6 October 2020; particularly their assertion that Ms Deng had obtained permission to stay in Hong Kong until mid-December 2020 and the Executors would be able to complete the Account before 20 December 2020.  They wrote in the third paragraph of their letter:

“... According to the Executors’ affirmation in opposition, it was alleged that Ms Deng was previously unable to travel to Hong Kong to execute the distribution (which is not admitted). Even if we should take such allegation as true, there is still no indication from you as to whether Ms Deng will be able to come to Hong Kong for execution shall the court grant such an order for interim payment.”

In the face of the cashier order in their hands, the Plaintiff’s solicitors knew Ms Deng had arrived Hong Kong and executed authorisation for payment and the confirmation they sought was unnecessary.  They were creating unnecessary work.  They never presented the cashier order for payment.  It transpired from the Plaintiff’s skeleton submission that this stance taken by the Plaintiff’s solicitors was deliberate.  They considered that they should turn a blind eye to what was said in without prejudice communications.

9.  The Executors’ solicitors did not respond, presumably because they had already provided the information and the cashier order in the without prejudice letter a day earlier.  As the Executors’ solicitors did not respond, the Plaintiff issued a summons on 15 October 2020 to join Nanyang Commercial Bank as a respondent for the purpose of making a vesting order to enable the bank to pay the undisputed amount (the “Joinder Summons”).  The Plaintiff argues that the Joinder Summons was issued as a result of the Executors’ “shenanigans and underhand tactics”.

10.  On 16 October 2020, in an open letter the Executors’ solicitors reminded the Plaintiff’s solicitors of what they had said in their letter dated 6 October 2020 and the cashier order enclosed in that letter.  They requested the Plaintiff’s solicitors to withdraw the Joinder Summons otherwise they would oppose the said summons and seek costs against the Plaintiff.

11.  In a without prejudice letter of the same date, the Executors’ solicitors offered (i) to pay interest on the undisputed sum accruing after 8 April 2020; (ii) to pay costs of the Originating Summons in the sum of $33,750.  They repeated the Executors’ agreement to complete the Account as proposed in the earlier letter.  They also proposed to prepare a consent summons incorporating the terms of their agreement and to vacate the hearing on 22 October 2020, if the proposal was acceptable to the Plaintiff.

12.  Surprisingly, the Plaintiff’s solicitors replied in an open letter on the same date, asking:

“Please clarify immediately how we have acknowledged receipt of your letter dated 7 October 2020 which is sent on without prejudice basis.”

In a without prejudice letter issued on the same date, the Plaintiff’s solicitors reiterated the Plaintiff’s position as follows:

“In a gist, our client as the beneficiary to the estate of the deceased is entitled at least to:-

(a)     payment of his share forthwith with interest calculated up to the actual date of payment thereof, …;

(b)     full and complete account with supporting documents by your client as the executors;

(c)     costs of these proceedings to be taxed if not agreed.”

In effect, the Plaintiff abandoned his former position of seeking costs in the sum of $135,000, which was presumably calculated on an indemnity basis, and accepted that costs should be taxed on a party to party basis.  The Executors are agreeable to pay costs to be taxed, if not agreed.

13.  In summary, as at 16 October 2020, the Plaintiff has (i) in his hand a cashier order for the undisputed sum plus interest up to 7 April 2020; (ii) an offer by the Executors to pay interest accruing since 8 April 2020 until payment of the undisputed sum, which should be 6 October 2020 when the cashier order was received by the Plaintiff’s solicitors; and (iii) an offer by the executors to render the Account in the standard as required by the Plaintiff.  The only outstanding issue is costs of the Originating Summons.  The Plaintiff’s solicitors were prepared to accept costs of the Originating Summons be paid by the Executors, to be taxed if not agreed, which should not be much different from the sum of $33,750 offered by the Executors’ solicitors.  But for the formality of reducing the above agreement into the terms of an order of the court, the Plaintiff effectively has the relief he sought under the Originating Summons and the Joinder Summons is wholly unnecessary.  The outstanding questions are the costs of the two summonses.

Costs of the Originating Summons

14.  The Executors were at fault in delaying distribution which necessitated the issue of the Originating Summons. They are liable to pay the Plaintiff’s costs.  On 7 October 2020, the Plaintiff’s solicitors demanded costs in the sum of $135,000, including solicitors’ fee in the sum of $87,000 and counsel’s fees in the sum of $48,000.  That is most probably calculated on indemnity basis.  It should be noted that as at 7 October 2020, probably counsel has not yet been instructed.  If in fact, agreement was reached, there would be no need for counsel to be instructed.  The Plaintiff’s solicitors’ demand for counsel’s fee was wholly unjustified.  They might even be claiming costs which have not been incurred.  On 16 October 2020, the Executors’ solicitors offered to pay costs in the sum of $33,750, which was probably close to party and party costs where the hearing was vacated and no counsel was instructed.  That was not acceptable to the Plaintiff’s solicitors.  It was only until 16 October 2020, which was a Friday, that the Plaintiff’s solicitors proposed to have costs to be taxed if not agreed.  That was acceptable to the Executors.  But by then it was too late to respond because on the following working day, the Plaintiff’s solicitors filed their skeleton submission.  Thus, there was no dispute that costs should be taxed if not agreed.

15.  The parties reached agreement on the terms of the order to be sought in relation to the Originating Summons except for the issue of costs.  In view of the large measure of agreement reached and the fact that the focus of hearing was on costs of the Joinder Summons, the costs of the hearing in respect of the Originating Summons was negligible.  Particularly, engagement of counsel to argue for costs under such circumstances was unnecessary and absolutely unjustified.  For the above reasons, I make an order in terms sought by the parties and a costs order that the Executors shall pay the Plaintiff’s costs to be taxed if not agreed, with no costs for the hearing and no certificate for counsel.

Costs of the Joinder Summons

16.  On 15 October 2020, the Plaintiff issued the Joinder Summons against the Nanyang Commercial Bank for the purpose of making a vesting order so as to obtain payment of the undisputed sum and interest.  In that context, the only relevant consideration is the mechanism for effecting payment of the undisputed sum and interest.  The claim of interest by itself was not a relevant consideration for the Joinder Summons.  It was an issue disposed of in the Originating Summons.  Thus, the following discussion will be focussed on the issue of the mechanism for effecting payment, ie the need for a vesting order. 

17.  On 30 September 2020, the Executors informed the Plaintiff’s solicitors in a without prejudice letter that Ms Deng had obtained a three-month permit to travel to Hong Kong and would be able to arrange a cashier order to pay the undisputed sum to the Plaintiff with interest on or after 5 October 2020, but would not be able to complete the Account because of outstanding proceedings by an alleged wife or concubine of the late father.  On 6 October 2020, the Executors’ solicitors informed the Plaintiff’s solicitors in a without prejudice letter that the Executors would be able to complete the Account in the way the Plaintiff demanded before 20 December 2020. They also enclosed a cashier order for the undisputed sum plus interest up to 7 April 2020. They proposed to vacate the hearing of the Originating Summons on 22 October 2020.  It is accepted that the interest from 8 April 2020 to the date of the letter was outstanding.  But that is not a relevant consideration for the Joinder Summons.

18.  On 7 October 2020, totally ignoring what the Executors’ solicitors had said in their without prejudice letter about Ms Deng’s travel arrangement and the cashier order which was evidence that Ms Deng had actually arrived Hong Kong, the Plaintiff’s solicitors referred to Ms Deng’s travel arrangements as mentioned in the Executors’ solicitors’ letter of 30 September 2020.  They wrote in the third paragraph of their open letter, which I have quoted in paragraph 8 above, pretending as if they did not know Ms Deng had actually arrived Hong Kong, authorised payment of the undisputed sum and issued the cashier order to the Plaintiff.  Then, they asked for the obviously unnecessary confirmation that Ms Deng would be able to come to Hong Kong to execute authorisation for payment of the undisputed sum.  

19.  The conduct of the Plaintiff’s solicitors was inexplicable and absolutely unreasonable.  They knew Ms Deng had obtained a three-month permit to travel to Hong Kong until mid-December 2020 to complete the Account.  They knew Ms Deng had arrived Hong Kong and authorised the payment.  They even had the cashier order in their hands.  The Executors offered, albeit in a without prejudice letter, to complete the Account by 20 December 2020 and then make the final distribution.  The litigation will be fully concluded soon.  However, the Plaintiff’s solicitors pretended as if they knew absolutely nothing about these events.  They did not present the cashier order.  They sought the unnecessary confirmation that Ms Deng would be in Hong Kong and demanded a reply by 4 pm on 9 October 2020, failing which they would issue the Joinder Summons.  Then, using the Executors’ solicitors’ failure to respond, they issued the Joinder Summons.  The alleged purpose of issuing the Joinder Summons was to make a vesting order to enable the bank to make payment to the Plaintiff.  But, all along, the Executors have confirmed that they will pay.  The Plaintiff’s solicitors had the cashier order in their hands.  Apart from a de minimis amount of interest was unresolved which I shall return to later[1], the only issue in the way of an agreement (or final settlement of the entire action) was the issue of costs of the Originating Summons.  There was little to argue about costs of the Originating Summons.  The usual rule is costs to follow the event and for costs to be taxed on party and party basis if not agreed.  There was nothing to suggest the Executors would not come to reasonable agreement on costs.  On the other hand, the Plaintiff’s solicitors were unjustifiably demanding costs on indemnity basis including counsel’ fees which were unnecessary and which have not yet been incurred.  By issuing the Joinder Summons, they were creating unnecessary work and costs.

20.  On the following day, the Executors’ solicitors requested the Plaintiff’s solicitors to withdraw the summons.  They explained that the cashier order, despite being enclosed in a without prejudice letter, was not sent to the Plaintiff on a without prejudice basis, but wholly for the purpose of making distribution of the Estate to which the Plaintiff was entitled.  They confirmed that the receipt of the cashier order will not bind the Plaintiff to any terms proposed in the without prejudice letter.  Instead of accepting the above written confirmation and presenting the cashier order, the Plaintiff’s solicitors rhetorically asked how did they acknowledge receipt of the Executors’ solicitors’ sent to them on a without prejudice basis.  The Plaintiff’s solicitors were not only uncompromising and picking on trivialities, but were very litigious.  It was not immediately apparent what was in their mind until seeing their skeleton submission and hearing their counsel’s argument.

21.  As transpired from the Plaintiff’s skeleton submission, the Plaintiff’s solicitors complain:

“30. This is when and where the Executors adopted an underhand tactic to further delay, linger, and drag on the matter. …

35. Second, it is wholly unconscionable for the Executors’ to adopt such underhand tactics. The Executors cloaked the fact that the cashier order for interim payment was ready under the “without prejudice” label. And after the Plaintiff proceeded on a without prejudice manner regarding the without prejudice letter by taking out the Summons for vesting order, the Executors turned against their back and accused the Plaintiff of so proceeding. The Executors simply cannot have it both ways and such shenanigans shall not be entertained by the Court.”

Thus, the Plaintiff’s solicitors and their counsel took the view that the offer to pay the undisputed sum was an underhand tactic to further delay, linger and drag on the matter.  They considered that they could not act on any of the assertions made by the Executors’ solicitors in the without prejudice letter.  They insisted that they had to turn a blind eye to the fact that Ms Deng had arrived in Hong Kong and was ready and willing to complete the Account by 20 October 2020 because these assertions were contained in a letter marked “without prejudice”.  They considered that they could not present the cashier order for payment. 

22.  Mr Chau, counsel for the Plaintiff, tries to justify the Plaintiff’s solicitors’ stance by relying on the principle of waiver and mutuality.  He refers to The Law and practice on Compromise[2]and Hong Kong Exchange and Clearing Limited v Shi Huaifang[3].  He submits that it is not just to allow one party to obtain an advantage by relying on without prejudice material to advance his own case, and then to seek protection of the without prejudice nature of the communications, to prevent the other party from relying upon the discussions which form a part of the same negotiations.  He argues that the Plaintiff is entitled to refer to the contents of the without prejudice letter.  I fail to see how the above principle could assist the Plaintiff.  The Executors have referred to all the without prejudice letters.  They are not seeking to rely on any of them to advance their own case, and then seek protection of the without prejudice nature of the letters.  In fact, the Executors have in their second open letter dated 16 October 2020 expressly said that the cashier order was not sent to the Plaintiff’s solicitors on without prejudice basis.  They unequivocally confirmed that receipt of the cashier order would not bind the Plaintiff to any terms proposed in the without prejudice letter.  With regret and respect, Mr Chau’s argument is just incomprehensible.

23.  Furthermore, Mr Chau is obviously wrong in the law.  As submitted by Mr Ng, counsel for the Executors, the without prejudice rule is a rule governing admissibility of evidence which applies to exclude all negotiations genuinely aimed at settlement:  see Poon Loi Tak v Poon Lai Cheung Desmond [4]. The rationale of the rule is based on public policy which is to encourage parties to negotiate and settle their disputes out of court.  The purpose of the rule is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement.  It is clear that the without prejudice rule only comes into play when the court is required to determine whether certain communication could be admitted as evidence in the proceedings.  It has nothing to do with the party’s knowledge of facts stated in the communication.  It is not open to the Plaintiff’s solicitors to argue that they should turn a blind eye to the facts stated in the without prejudice letter and the cashier order enclosed therein. 

24.  If by his argument Mr Chau is referring to the travel arrangement of Ms Deng as expressed in the third paragraph of the Plaintiff’s solicitors’ open letter dated 7 October 2020, the Plaintiff’s worry is imaginary.  They worried that there was no assurance “whether Ms Deng will be able to come to Hong Kong for execution (of the distribution) shall the court grant such an order for interim payment”.  But the fact was not only that Ms Deng had arrived Hong Kong, she had actually arranged the cashier order and sent it to the Plaintiff’s solicitors.  With the cashier order in their hands, the Plaintiff’s solicitors ought to know that their worry was imaginary and the confirmation they sought was unnecessary.  Yet, they indulged in their imagination that Ms Deng was not yet in Hong Kong, could not executed documents authorising payment of the undisputed sum and took out the Joinder Summons to enable a vesting order to be made.  If they genuinely held that position, they were incompetent.  If they did not, they were not acting in good faith.  They were creating unnecessary work and wasting the Executors’ costs as well as their own client’s costs.  

25.  On the fact, whatever “delay, linger, and drag” had occurred before the without prejudice letter was issued had occurred.  But, since the issue of the Originating Summons, the Executors acted reasonably.  On 6 October 2020, their solicitors informed the Plaintiff’s solicitors that the Executors were prepared to complete the Account and enclosed a cashier order.  The cashier order is as good as cash.  In their letter of 16 October 2020, the Executors’ solicitors confirmed in writing that the cashier order was distribution which the Plaintiff was entitled to and its receipt would not bind the Plaintiff to any terms proposed in the without prejudice letter.  The Plaintiff’s solicitors did not present the cashier order and made empty assertions of “further delay, linger, and drag on the matter” which amounted in their view to “shenanigans and underhand tactics”.  I fail to understand. The Executors’ conduct could not be labelled as “further delay, linger, and drag on the matter” and “shenanigans and underhand tactic”.  What the Plaintiff’s solicitors had to do was simply to present the cashier order.  In my view, the “delay, linger, and drag” were caused by the Plaintiff’s solicitors adopting an unreasonable and obstinate stance of turning a blind eye to the cashier order and the fact that Ms Deng had come to Hong Kong to arrange and make distribution and to complete the Account; and not presenting the cashier order for payment or not advising the Plaintiff to accept the cashier order.  It was the Plaintiff’s solicitors who engaged in shenanigans and underhand tactic in issuing the Joinder Summons.

26.  When the Plaintiff’s solicitors took out the Joinder Summons, they had the cashier order in their hands, they knew Ms Deng was in Hong Kong.  There was no need for them to seek the confirmation that Ms Deng would be in Hong Kong.  They also knew the Executors could authorise further payments out from their Nanyang Commercial Bank account to pay interest.  There was absolutely no need for the issue of the Joinder Summons.  That was acknowledged by the Plaintiff’s solicitors when they agreed to withdraw the summons.  But they asked for costs.  In my view, having regard to the above circumstances, the Joinder Summons should not have been issued in the first place; and it having been issued, should have been withdrawn by the party who took out the summons without insisting on a hearing to determine the issue of costs.  If the Plaintiff’s solicitors chose to proceed, the summons will be dismissed with absolute certainty for the above reasons.  Besides, the account holders, ie the Executors, are available in Hong Kong to execute whatever authorisations necessary to operate the bank account.  For the above reasons, the Executors are entitled to costs of the Joinder Summons against the Plaintiff.

Wasted costs order

27.  In Mok Lai Chun and Everwise Investment Limited and Another[5], the Court of Appeal held:

“The test under RHC Order 62 Rule 8 for any direction that solicitors pay costs personally is a stringent one.  It is not enough to show mere (as opposed to gross) negligence.  A solicitor must instead be shown to have caused costs “[to be] incurred improperly or without reasonable cause or [to be] wasted … by any other misconduct or default”. Some manifestation of professional misconduct is required, such that a solicitor may be said to have fallen short of his duty to the Court.”

Prima facie, costs incurred for procedures which serve no purpose to the client’s litigation are wasted costs.  But the court’s discretion to make wasted costs order will only be exercised with extreme caution.  It will not be exercised just because costs are wasted or for mere errors of judgment or even errors of law.  It will only be exercised in case of gross negligence, incompetence, misconduct or errors of such a nature which the court feels an affront to the conscience of a solicitor as an officer of the court.  Errors of law and judgment excepted, it may be an affront where a solicitor engages or indulges in procedures which serve no purpose for the client’s litigation and which necessarily generate profits costs for the solicitor.  It is likely to be an affront when in so doing, the solicitor puts his client at risk of an adverse costs order in proceedings in which the client is likely to lose.  It is certainly an affront when the certainly of failure is known or ought to have been known to the solicitor.  This is an obvious example where a solicitor allows his personal interest to override his duty to his client.  A wasted costs order in such a case is appropriate.

28.  The course these proceedings have taken strikes me as extremely unusual, unreasonable and wasteful.  The Plaintiff’s solicitors were very unreasonable, litigious and mechanistic.  Though there was delay on the part of the Executors, they acted reasonably since the issue of the Originating Summons in June 2020.  On 30 September 2020, their solicitors proposed to make interim payments in a without prejudice letter.  On 6 October 2020, they further proposed to meet the Plaintiff’s request to complete the Account by 20 December 2020.  The dispute between the parties would be finally resolved soon.  However, the Plaintiff’s solicitors took a mechanistic approach, turned a blind eye to the facts disclosed, albeit in without prejudice letters, and sought an unnecessary confirmation in their letter dated 7 October 2020 to which they knew the answer.  When the Executors’ solicitors failed to respond, they issued the Joinder Summons which was plainly unnecessary.  Eventually, they accepted that the summons was unnecessary and agreed to its withdrawal.  But they asked for costs.  For reasons as I have explained in the preceding subsection, that was unreasonable and costs were ordered against the Plaintiff whom they represent.  The confirmation sought in the Plaintiff’s solicitors’ letter dated 7 October 2020 was unnecessary.  Prima facie,the Joinder Summons issued as a result of the Executors’ solicitors’ failure to respond to the Plaintiff’s solicitors’ letter was calculated to generate costs for the Plaintiff’s solicitors at the expense of putting their client, ie the Plaintiff, at risk of an adverse costs order.  That would be utterly unfair to the Plaintiff.  I consider it appropriate to consider making a wasted costs order on my own motion under Order 62 rule 8, 8A and 8B.  Having heard the argument, I am satisfied that the evidential requirement under the first stage enquiry provided by Order 62 rule 8B was satisfied.  It would be appropriate to proceed to the second stage of enquiry summarily.

29.  I invited Mr Chau to address me as to why costs should not be made against the Plaintiff’s solicitors personally.  Specifically, in answer to my question why with the cashier order in their hands, the Plaintiff’s solicitors still sought a vesting order by issuing the Joinder Summons, Mr Chau’s reply was that as at 15 October 2020 the issue of outstanding interest was still unresolved.  As I have said, that is not a relevant consideration for the issue of the Joinder Summons.  Furthermore, the amount was de minimis.  The Executors have paid interest up to 7 April 2020.  There was nothing to suggest that they would not pay the interest accrued thereafter.  In fact, on 16 October 2020, the Executors’ solicitors confirmed that they would pay within three days.  It would have been reasonable to have the Joinder Summons withdrawn at the latest at that stage.  Yet, against that background, the Plaintiff’s solicitors still refused to withdraw the summons and insisted to proceed to the hearing on 22 October 2020 with counsel to argue just for costs.

30.  What would the Plaintiff gain if he succeeds on the Joinder Summons?  The answer is going to be hypothetical as it is an absolute certainty that his application would be dismissed.  Nanyang Commercial Bank would be made a party to these proceedings and a vesting order made.  That may result in additional costs to the Estate or to the Executors.  The Plaintiff would receive payment of the undisputed sum from the bank, which he will receive in any event by presenting the cashier order.  He may have taxed costs against the Executors which may not be sufficient to cover his own costs paid to his solicitors.  He has nothing to gain, except the liability to pay such of the costs to his solicitors which would be taxed off by the taxing master.

31.  What would the Plaintiff lose if he fails on the Joinder Summons?  As I have explained, it is an absolute certainty that the Joinder Summons would be dismissed.  The Plaintiff has to pay the Executors’ costs, as I have so ordered.  He has to pay his own costs to his solicitors, which he need not have to pay had the summons not been taken out or been withdrawn.  He will be paid the undisputed sum with interest by presenting the cashier order.  What the Plaintiff has to gain is the twin scourges of paying his own costs to his solicitors and paying the Executors’ costs for opposing the Joinder Summons taken out by his solicitors on his behalf. 

32.  Who is to gain?  The Plaintiff’s solicitors would be paid their costs of the letter of 7 October 2020 and the costs of taking out the Joinder Summons and their attendance at the hearing.  They stood to gain whatever the outcome.  But their client was doomed to lose.  For reasons as discussed above, that was an absolute certainty.  What the Plaintiff’s solicitors did was to put their client at risk of an adverse costs order which was what happened and which was absolutely foreseeable.  That was grossly unfair to their client.

33.  The issue of the Joinder Summons was wholly unnecessary.  The parties were negotiating with good progress.  There was no reason to doubt that the parties would not reach agreement on reasonable terms.  The Plaintiff was seeking interim payment.  That was agreed to be paid and a cashier order was placed in the hands of the Plaintiff’s solicitors.  The outstanding issues were some outstanding interest and costs of the Originating Summons.  Costs of the Originating Summons was agreed separately.  However, this small amount of interest was made a huge issue by the Plaintiff’s solicitors.  But, neither the costs of the Originating Summons nor the outstanding interest is relevant for the issue of the Joinder Summons. 

34.  The conduct of the Plaintiff’s solicitors contradicts all underlying objectives of Order 1A of the Rules of the High Court.  They had received a cashier order in payment of the undisputed sum.  What they have to do was to advise the Plaintiff to cash it.  There was a de minimis amount of interest which have not been resolved.  The Executors had agreed to pay interest up to 7 April 2020.  There was no reason to believe that they would not agree to pay any further interest which accrued before issue of the cashier order.  What the Plaintiff’s solicitors have to do was to ask.  When the issue of interest was raised, the Executors promptly agreed to pay within three days.  That expeditiously dealt with the matter.  The Joinder Summons could only enable a vesting order to be made so as to effect payment from the bank account.  It has no bearing on the costs of the Originating Summons or the additional interest.  It was improper to take out the Joinder Summons to coerce the Executors to comply with their demand for costs of the Originating Summons or additional interest.  The costs involved in issuing the summons and in  hearing on 22 October 2020 for determining the costs of the Joinder Summons is out of all proportion with the small amount of interest involved.  Needless to say, it was unfair to the parties to incur so much costs for such a small amount of interest.  It was unfair even to the Plaintiff to have to pay their solicitors for such an unnecessary application, even if taxed costs were recoverable.  The court’s resources were also wasted in what could have been resolved between the parties by acting with reasonableness.  When confronted with the underlying objectives, Mr Chau could offer no answer other than insisting that as a matter of law the Plaintiff is entitled to additional interest and costs.  I disagree.  The issue of the Joinder Summons was wholly unjustified.  The Plaintiff’s solicitors had a last chance to put things right by withdrawing the summons as advised by the Executors’ solicitors.  They did not. 

35.  It appears to me that the Plaintiff’s solicitors were the mastermind in the issue of the Joinder Summons.  In so doing, not only did they incur costs on their client which they benefited, they put their client at risk of an adverse costs order.  That risk materialised.  I have given the Plaintiff’s solicitors the opportunity to explain why a wasted order should not be made against them.  They were unable to explain other than insisting that they were entitled to interest and to issue the summons.  Their conduct has gone beyond the realm of error of law or judgment.  This is a plain and obvious case of abuse of legal process.  The Plaintiff’s solicitors were just creating work to generate costs for themselves at the expense, not only of their client but also of the client’s opponents.  They were working on their own agenda regardless of the interest of their client, not to mention the unfair and unnecessary prejudice to the opponents.  They unnecessarily prolonged the litigation which was about to conclude, increased the parties’ costs and created unnecessary acrimony.  They were cost-thirsty.  I condemn such gross conduct.  Without a wasted costs order, the Plaintiff would be prejudiced by such misconduct of his solicitors. Such cost-thirsty approach of legal representatives should be discouraged.  A wasted costs order is justified in the circumstances.  Accordingly, I make a wasted costs order that the costs which the Plaintiff is ordered to pay to the Executors be repaid to the Plaintiff by the Plaintiff’s solicitors.  As I have no opportunity to hear from the Plaintiff personally, I do not intend to make any order disallowing the costs as between the Plaintiff and his solicitors.  I leave it to the Plaintiff to decide whether to make any application under Order 62 rule 8 or to the good faith of his solicitors to take the initiative to rectify the wrong.  

Conclusion

36.  In respect of the Originating Summons, I ordered the Defendants to pay the Plaintiff’s costs (with no certificate for counsel) to be taxed if not agreed and that there be no order as to costs of the hearing.

37.  In respect of the Joinder Summons, I ordered the Plaintiff to pay the Defendants’ costs of and occasioned by the summons with certificate for counsel to be taxed if not agreed; and that the Plaintiff’s solicitors to repay the Plaintiff the costs which the Plaintiff is ordered to pay the Defendants.