ELIJAH SAATORI v. MICHAEL LINTERN-SMITH AND OTHERS

HCA 1626/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1626 OF 2009

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BETWEEN

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J U D G M E N T

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1.  There is an application by the defendants to strike out the writ and the statement of claim on the grounds that the claim discloses no reasonable cause of action, is scandalous, frivolous or vexatious or an abuse of the process of the court. There is also an application by the plaintiff to add one Dr Buddy Wong as the 5th defendant on the ground of an alleged conspiracy by Dr Wong with the other defendants to pervert the cause of justice.

Background

2.  The 4th defendant is a firm of solicitors which had represented the defendant in a personal injuries action in which the plaintiff herein was also the plaintiff. That was a claim based on an allegation of medical negligence. That action was struck out by Saunders J for want of proper medical evidence in support. The plaintiff appealed to the Court of Appeal. The Court of Appeal gave him one more chance to provide the necessary medical evidence. But ordered him to pay the costs of the appeal. He then sought leave from the Court of Appeal to appeal to the Court of Final Appeal. His application was dismissed by the Court of Appeal. He still failed to provide the necessary medical evidence within the time extended by the Court of Appeal. His appeal to the Court of Appeal against the decision of Saunders J then stood dismissed.

3.  When the Court of Appeal dismissed the plaintiff’s application for leave to appeal to the Court of Final Appeal, the Court also ordered the plaintiff to pay the costs of that application to the defendant in that case. The 4th defendant herein on behalf of the defendant there submitted a bill of costs to the Court of Appeal for gross sum assessment. The Court of Appeal was very critical about this bill and regarded it as inherently unreliable. The Court of Appeal did not proceed to gross sum assessment but ordered taxation of costs in the normal course. This bill was not used subsequently for taxation. This bill has however become one of the subject matters in this action.

4.  The partners and associates of the 4th defendant have, in the course of conducting the defence of the personal injuries action, made some affidavits and affirmations. What they said in these affidavits/affirmations have also become subject matters in this action.

5.  Counsel for the defendants, in his written submissions for this application, only relied on the ground that the plaintiff’s claim discloses no reasonable cause of action. I now consider the contents of the statement of claim and see if it discloses any reasonable cause of action.

The first claim

6.  The plaintiff pleaded his first claim as the defendants’ deliberate perjury created specially to obtain monies from the plaintiff, by way of a bills for costs that is deliberately inflated by at least 800% and it was attempted fraud by attempting to gain monies under false pretences and the tort of deceit.

7.  The subject matter of this claim is of course the bill of costs that was criticised and rejected by the Court of Appeal. The plaintiff further pleaded that the bill contained deliberate lies concocted to deceive the Court of Appeal. But I note that the plaintiff has not suffered any loss by reason of this bill. This bill was rejected by the Court of Appeal and was not used again in taxations. This first claim therefore discloses no reasonable cause of action.

The second claim

8.  The second claim is pleaded as the defendants’ act for deliberate perjury to obtain monies from the plaintiff by way of normal bills for costs which is now provable as having been deliberately concocted to deceive the courts into ruling against the plaintiff. The plaintiff further pleaded that it was an attempted fraud, attempting to gain monies under false pretences under the tort of deceit and defamation, slander and libel.

9.  However, the details he provided under this claim were alleged lies and false statements made by the 1st, 2nd and 3rd defendants in their affidavits/affirmations made in the personal injuries action. He pleaded that the affidavits/affirmations were made to cause him to lose the action and to defame, malign and slander him as a deliberate vexatious, spurious and frivolous litigant.

10.  He also pleaded that the 1st to 4th defendants conspired together to take advantage of his imperative needs and legal rights and have consequently defamed, slandered and libelled him in court in a hearing before Deputy High Court Judge Carlson on 16 July 2009. At the hearing of this application, he referred me to various passages in the affidavits/affirmations that he complained of.

11.  Nevertheless, it is settled law that statements made by lawyers in or incidental to an action in court is privileged from defamation suit. The position has been set out and explained in Gatley on Libel and Slauder, 11^th edition at paras. 13.4 to 13.15:

“(c) Privilege of Lawyers

13.14  Privilege of advocates. No action will lie for defamatory words spoken by an advocate in his professional capacity in the course of an inquiry before a judicial tribunal, even though they were uttered maliciously and not with the object of supporting the case of his client and were entirely irrelevant to the subject-matter of the inquiry. The law is the same whether the defendant be a barrister or a solicitor. …

13.15  Extent of privilege.  The privilege is not confined to words spoken by an advocate, it extends also to any statements contained in a pleading or other document incidental to the action settled by a lawyer engaged in litigation, including inter parties correspondence, even though such statements are irrelevant for the purposes of the action and introduced unnecessarily and without any instructions from his client and without any information which would justify them. …”

12.  Regardless of whether the allegations in the affidavits/affirmations of the 1st, 2nd and 3rd defendants are truthful or otherwise, no defamation suit can be brought in relation to them.  These statements also have not caused the plaintiff any loss.  The second claim therefore also discloses no reasonable cause of action.

The third claim

13.  The third claim is entitled attempted fraud, attempting to gain monies under false pretences and the tort of deceit and defamation, slander and libel.  Under this claim, he again referred to the affidavits/affirmations of the 1st, 2nd and 3rd defendants.  He alleged that they contained lies and were concocted to deceive the High Court.  They were to defame, malign, slander and cause libel against him by attempting to portray him as a danger to public safety and by alleging that he had subjected the 2nd and 3rd defendants and others to torrents of verbal abuse outside and inside of court.

14.  He also pleaded that the 1st, 2nd and 3rd defendants had slandered him by attempting perjurously to persuade the court that he was suffering from some kind of mental illness and other psychiatric and psychological disorders. He also referred me to the passages that he complained of at the hearing. Again, these allegations, regardless of whether they are true, are privileged from defamation suit for the same reason given above. He also has not suffered any loss by reason of these allegations. This claim therefore also discloses no reasonable cause of action.

Other matters

15.  The statement of claim then goes on to describe how the action should proceed and the quantum of his claim. There is then a request for an order allowing contingency fees to be charged in this case. This request does not amount to any claim known in the law and therefore also discloses no reasonable cause of action.

Decision on striking out

16.  The above discussion deals with the matters pleaded in the statement of claim. Since nothing in the statement of claim discloses any reasonable cause of action, I have no choice but to strike it out. I therefore strike out the writ of summons and the statement of claim.

Summons for joinder

17.  I now deal with the plaintiffs’ summons to join Dr Buddy Wong as a co-defendant. Dr Wong was engaged by the 4th defendant on behalf of the defendant in the personal injuries action. His task was to examine the plaintiff for the purpose of that action. The plaintiff’s ground for joining him is that he was allegedly in conspiracy with the defendants in this action to pervert the cause of justice. The plaintiff said at the hearing that Dr Wong’s report was untrue. It did not set out what he had told Dr Wong at the examination. He also said that Dr Wong had wrongly opined that his hearing problem was caused by aging. He asserted that Dr Wong was paid to say what was said in the report.

18.  However, the plaintiff had not suffered from the alleged conspiracy at all. His personal injuries action was struck out not because of Dr Wong’s report, but because of his failure to provide the necessary medical evidence. The claim he seeks to make against Dr Wong therefore also discloses no reasonable cause of action. I therefore do not allow the joinder of Dr Buddy Wong as the 5th defendant in the action. I dismiss the plaintiff’s summons dated 9 December 2009.

Costs orders nisi

19.  I now deal with costs. I make a costs order nisi that the plaintiff do pay the defendants the costs of their application to strike out the writ of summons and statement of claim. I also make a gross assessment order nisi as follows.

20.  I deal with counsel fees first. This is a relatively simple and straightforward application. I think a junior counsel with less experience can handle it comfortably. I therefore allow only $30,000 for counsel fees.

21.  Regarding the costs of the solicitors, I think the $1,000 charged for copying and travelling is reasonable. I also allow $660 for the one hour attendance by the litigation clerk. I allow half an hour for communication by the partners of the 4th defendant with the plaintiff and another half an hour for communication with the court. The sum allowed for this hour of work is $4,000. Regarding professional work, I allow $1,000 for the 15 minutes required for drafting of the summons to strike out. I also allow a total of three hours for perusal by the 1st, 2nd and 3rd defendants of the statement of claim and all other documents served by the plaintiff on the defendants in relation to this application to strike out and the 1st defendant’s preparation for the hearing. That amounts to $12,000. The hearing on 17 December 2009 took one hour and I allow $4,000 for it. The total sum tax and allowed is $52,660.

22.  For the plaintiff’s summons to join Dr Buddy Wong, I make an order nisi that there be no order as to costs.

23.  These orders nisi will automatically become orders absolute after 14 days unless there is an application for their variation to be made by either side within the next 14 days.