JOSEPH LEUNG & ASSOCIATES (a firm) v. CHU SIU HOI

DCCJ 1108/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1108 OF 2013

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DECISION

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1.  By summons dated 5 January 2016, the plaintiff apply to (i) discontinue its claim against the defendant with costs to the plaintiff; and (ii) strike out the defendant’s counterclaim.  The defendant opposes these applications.

2.  In support of the application, the plaintiff filed the affirmation of Joseph Leung Kwok Kin dated 5 January 2016.  In addition, the plaintiff also rely on the affirmation of Joseph Leung Kwok Kin dated 11 March 2013 previously filed in DCPI 1315/2012.

3.  The defendant filed the affirmation of Chan Kam Tak dated 3 February 2016 in opposition.  The defendant also relies on the affirmation of Chu Siu Hoi (the defendant) dated 18 March 2013 previously filed in DCPI 1315/2012.

4.  With leave of the court, the parties filed one further affirmation on 19 April 2016 and such affirmation is restricted to the issue as to whether the plaintiff had disclosed all the documents in their possession in the further list of documents filed on 21 February 2013.

Background

5.  The plaintiff is at all material time a firm of solicitors.  In 2012, the plaintiff were instructed to act for the defendant (hereinafter referred to as Mr Chu) in a personal injury action, namely, DCPI 1315/2012 (hereinafter referred to as the DCPI Action), in which Mr Chu was the plaintiff.  Interlocutory judgment was obtained in the DCPI Action with damages to be assessed.

6.  By Master SP Yip’s order made on 29 November 2012, Mr Chu was required, inter alia, to file and serve a further list of documents to make discovery of a series of documents relating to the issue of quantum and to file a witness statement on or before 10 January 2013 (the Discovery Order).  It was further provided under the Discovery Order that should any of the documents not in the possession, power or custody of Mr Chu, Mr Chu do make and file an affirmation stating when he parted with the same and what has become thereof within 28 days thereafter.

7.  There does not seem to be any dispute that Mr Chan Kam Tak (Mr Chan) who is currently representing Mr Chu was previously employed by the plaintiff as an assistant solicitor handling Mr Chu’s DCPI Action.  Mr Chan represented Mr Chu at the hearing on 29 November 2012 when the Discovery Order was made.  Mr Chan subsequently joined Messrs Sham & Co as a consultant shortly after his departure from the plaintiff on 12 February 2013.

8.  On 18 February 2013 the plaintiff received a letter from Messrs. Sham & Co (which is no longer in practice) stating that Chu decided to terminate his retainer with the plaintiff and that Sham & Co would act for Mr Chu in place of the plaintiff and requested the plaintiff to send over the relevant documents in the DCPI Action.  However, no Notice of Change of Solicitors was served on the plaintiff and therefore it was not sure to the plaintiff if they were still Chu’s solicitors on the court’s record.

9.  On 21 February 2013, later than the time prescribed by the court, the plaintiff filed the supplemental list of documents for Mr Chu with notice to inspect. The plaintiff also sent copy of the documents referred to in the list to the defendant’s solicitors in the DCPI Action.  There is no dispute that notwithstanding the filing of the further list of documents, there remain quite a lot of documents to be disclosed under the Discovery Order (the “Remaining Documents”).

10.  On 26 February 2013, the plaintiff delivered its bill of costs in the sum of HK$86,561.10 to Chu and asked Chu to settle the bill within 7 days, which Chu failed to do.  Hence, the plaintiff refused to release the documents to Chu.

11.  On 11 March 2013, the plaintiff took out a summons for a declaration to cease to act for Mr Chu returnable before Master SP Yip on 12 March 2013.

12.  On 12 March 2013, the hearing before Master SP Yip was divided into two parts, the first part dealt with the plaintiff’s summons to cease to act and the second part was the hearing leading to the making of an unless order.  In the first part of the hearing, the plaintiff came to know that a Notice of Change of Solicitors was filed by Sham & Co on 1 March 2013 with the court. Hence, Sham & Co was Mr Chu’s solicitors on the court record as early as 1 March 2013.

13.  The plaintiff was excused after the first part of the hearing.  In the second part of the hearing, Mr Chu was represented by Mr Gary Sham of Sham & Co.  An unless order for discovery of the Remaining Documents and for the filing of Mr Chu’s witness statement was made against Chu in the second part of the hearing (the “the Unless Order”).

14.  2 April 2013 was the deadline for Chu to comply with the Unless Order.  Mr Chu and/or Sham & Co. failed to do so. Mr Chu’s claim in the DCPI Action was, accordingly, dismissed by Master J Chow on 21 May 2013.

15.  The plaintiff was no longer Mr Chu’s solicitors at the time when the Unless Order was made or when the Unless Order was breached.

The present action (DCCJ 1108/2013)

16.  Mr Chu failed to settle the plaintiff’s bill of costs in the sum of HK$86,561.10.  The plaintiff commenced this action on 3 April 2013 to recover the outstanding unpaid legal fees (the “Unpaid Fees”).

17.  On 10 May 2013, Chu filed its Defence and Counterclaim, alleging, inter alia, that the Unpaid Fees were excessive and unreasonable; and the plaintiff failed to comply with the Discovery Order dated 29 November 2012; and overcharged Mr Chu so that Chu cannot have the documents back so as to comply with the Unless Order and thereby causing Chu’s claim to be dismissed.

18.  On 6 June 2013, the plaintiff filed its Reply and Defence to Counterclaim.

HCMP 851/2013 (the “Taxation Action”)

19.  On 23 April 2013, Mr Chu commenced HCMP 851/2013 by Originating Summons to tax the bill of costs.

20.  Upon conclusion of the taxation, Master R Yu ordered, inter alia, that the plaintiff’s profit costs and disbursements be allowed at HK$72,375.67 and HK$5,107.50 respectively.  On 6 July 2015, the sealed Allocatur taxing Chu’s liability for the Unpaid Fees, the costs of taxation and the taxing fees in the total sum of HK$105,129.17 was issued.

21.  On 14 July 2015, Mr Chu took out an application to stay the execution of the Allocatur pending the conclusion of the present action.

22.  Master K Lo dismissed the stay application on 5 November 2015.  Mr Chu settled the Allocatur with full payment on 12 November 2015.

23.  The plaintiff now apply to discontinue the present claim against Mr Chu. Mr Chu does not oppose the application for discontinuance but object to the costs application.

Discontinuance of the plaintiff’s claim

24.  The general rule is for the court to order a plaintiff for leave to discontinue to pay defendant’s costs upon granting leave to discontinue. However, the court has complete discretion in dealing with the issue of costs and to do justice between the parties.  A broad brush approach is to be taken when considering if a plaintiff (applicant) has succeeded in obtaining substantially the relief that it asks for in deciding whether the applicant is entitled to have the costs of the proceedings.

25.  Mr Law for the plaintiff referred me to a number of authorities where the “successful party approach” was adopted.  In Re China Solar Energy Holdings Ltd (unreported, HCCW 108/2015, March 2016) per Deputy Judge Le Pichon, the court affirmed the “successful party approach” and, applying Re Chinese United Establishment Ltd (unreported, HCCW 391/1994, 5 October 1995) and Re Lucky Ford Industrial Ltd [2013] 3 HKLRD 550, held that the approach adopted on the question of costs for discontinuance was to assess whether a party did substantially obtain the relief sought.

26.  In Famous Marvel Co Ltd v Conversant Group Ltd (unrep, HCA 2153/2009, [2012] HKEC 1472), Queeny Au-Yeung J held that the starting point was to ask which party had succeeded.  Only if it was unclear which side had succeeded was it necessary for the court to consider the substantive issues:-

“[22] There is no dispute that even if a case is settled except as to costs, the Court still has power to determine which party should be liable for costs. There is no tradition for there to be “no order as to costs” in such a scenario. I am guided by the following principles in deciding costs:-

(i) The Court is to decide if the party seeking costs has substantially obtained the relief sought in the litigation: Re Chinese United Establishment Ltd, HCCW 291/1994, 5 October 1995, Rogers J (as he then was), approved in CACV 214/1995 ... 

(ii) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion.  In between, the position will, in differing degrees, be less clear.  How far the Court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.  Brawley v Marcynski (No 1) [2003] 1 WLR 813.

(iii) The Court will first consider if it is in a position to say what the likely outcome after trial would have been.  If it is not in a position to do so, the order may well be no order as to costs: Brawley v Marcynski (No 1), at para 18, Longmore LJ; followed in BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] FSR 150.

(iv) The Court may permit parties to adduce evidence on the question of costs ...

(v) A broad brush can be taken by referring to all matters already laid before the Court, eg pleadings, correspondence, witness statements, transcripts of evidence and the terms of the settlement order: c.f. BCT Software Solutions Ltd v C Brewer & Sons Ltd, at para 9; Graham M Morley v Kwan Wo Wan & others.

(vi) The objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost: Brawley v Marcynski (No 1).”   

27.  In the present case, the plaintiff discontinue its claim after they have successfully obtained payment in enforcing the Allocatur in the Taxation Action.  The plaintiff have substantially obtained the relief sought without the need to proceed further.  There is no reason why the plaintiff should not be entitled to costs of the action and I shall so order.

Striking out defendant’s counterclaim

28.  The plaintiff apply to strike out the defendant’s counterclaim on the ground that it discloses no reasonable cause of action and/or it is scandalous, frivolous, vexatious and/or it is an abuse of the court process pursuant to O 18 r 19 of the Rules of the District Court and inherent jurisdiction of the court.

29.  The power to dismiss an action under the inherent jurisdiction of the court on the ground that it is obviously frivolous or vexatious is discretionary, just as it is under O 18 r 19.  The jurisdiction is not limited to cases in which the facts are not in dispute.  A judicial discretion must be used as to what proceedings are vexatious; for the court must not prevent a suitor from exercising his undoubted rights on any vague or indefinite principle.  The jurisdiction will only be exercised in exceptional circumstances, where it is clear that the plea cannot succeed.  When application is made to the inherent jurisdiction of the court, all the facts can be gone into; affidavits as to the facts are admissible: HK Civil Procedure 2016, 18/19/13 & 18/19/14.

30.  In the affirmation of Chan Kam Tak filed on behalf of Mr Chu on 3 February 2016, it was made clear that Mr Chu’s complaint against the plaintiff was one of delay.  In paragraph 3, it stated that “In the gist, the defendant complained of the plaintiff’s delay after the action has commenced.  The relevant particulars were pleaded in the Counterclaim”.

31.  The particulars of negligence and breach of retainer pleaded in Mr Chu’s Defence and Counterclaim were that the plaintiff:-

(1) failed to progress the claim with reasonable diligence after the Discovery Order dated 29 November 2012;

(2) failed to advise Mr Chu at any time that steps should be taken to comply with the Discovery Order;

(3) failed to comply with the Discovery Order dated 29 November 2012;

(4) overcharging Mr Chu so that Chu cannot have the documents back so as to comply with the Unless Order dated 12 March 2013; and

(5) thereby causing or permitting Chu’s claim in DCPI 1315/2012 to be dismissed.

32.  Mr Chan Kam Tak representing Mr Chu in this hearing informed the court that he would no longer pursue the ground of the plaintiff overcharging Chu so that Chu could not obtain the documents back so as to comply with the Unless Order.

33.  Mr Chu’s remaining claim is on negligence and he would have to establish that the dismissal of his claim was caused by the plaintiff’s negligence.  The “but for” rule is generally the starting point in proving a causal connection between negligent conduct and the damage suffered.  Mr Chu bears the burden to prove that but for the plaintiff’s negligence the injury complained of would not have arisen.

34.  The alleged delay and negligence were in relation to the Discovery Order.  The injury or loss was the dismissal of Chu’s claim in the DCPI Action.

35.  In addition to delay, Chu, by his latest affirmation filed on 19 April 2016, raised a new allegation that there were some documents which the plaintiff failed to disclose to the defendant in the DCPI Action, namely, the declaration made in the application for TAVA on 3 August 2010 and the payment details from TAVA; Chu’s bank passbook; the Employers’ Return for the year ended 31 March 2010 and 31 March 2011.  This is disputed by the plaintiff.  The issue to be decided is whether the plaintiff failed to do so as alleged, and, if so, whether it causally contributed to the dismissal of the DCPI Action.

The delay

36.  I shall deal with the issue on delay first. There is no dispute that the Discovery Order required Mr Chu to file the further list of documents and the witness statement on or before 10 January 2013 and that the further list of documents was only filed on 21 February 2013.  There was a delay of some 6 weeks and that there was no witness statement filed.

37.  The broad issues before me are whether the delay was caused by the plaintiff’s negligence and, if so, whether the delay causally contributed to the dismissal of Mr Chu’s claim in the DCPI Action.

The approach

38.  The court’s power to strike out should be exercised in plain and obvious cases.  However, where the claim is demonstrated to be plainly unsustainable, unarguably bad and impossible, the court will not hesitate to strike it out. In exercising the discretion, the court will apply commercial and common sense.  In Infinity Development (Holdings) Company Limited & another v Bank of China & oths, HCA 3202/2001, unreported, 19 July 2003, Chu J (as she then was) referred to the dictum of Laddie LJ in Microsoft Corporation v Electro‑Wide Ltd, [1997] FSR 580 at 593:-

“So here the court has to ask whether there is a fair or reasonable probability of the defendants having a real or bona fide defence in relation to these issues. In answering that question it is not sufficient just to look at each factual issue one by one and to consider whether it is possible that the defendant’s story in relation to that issue is credible. The court must look at the complete account of events put forward by both the plaintiff and the defendants and, to use Ackner LJ’s words, look at the whole situation. The mere fact that the defendants support their defence by sworn evidence does not mean that the court is obliged to suspend its critical faculties and accept that evidence as if it was probably accurate. If, having regard to the inconsistency with contemporaneous documents, inherent implausibility and other compelling evidence, the defence is incredible, the court must say so. It should not let the filing of evidence which surpasses belief deprive a plaintiff of its entitlement to relief. .....” (my emphasis)

39.  The case before Laddie LJ was a summary judgment application. Chu J went on to state that Laddie LJ’s observations are equally applicable to a striking out application:-

“28. These observations are equally applicable when the credibility and probability of the claim are called in to question on a striking out application. In the present case, insofar as the defendants’ application is made on the basis that the allegations in the Statement of Claim are incredible and implausible, it is, in my view, important to approach the matter from a commercial and common sense point of view and not to lose sight of the overall picture present to the court.”

40.  In the affirmation dated 11 March 2013 filed by the plaintiff in support of its application to cease to act in the DCPI Action, the plaintiff stated that their firm had repeatedly tried to contact Mr Chu to request him to provide his income record and bank statement, and also to confirm the draft witness statement as ordered by Master Yip but Mr Chu had failed to provide the documents and to confirm the draft witness statement.  The plaintiff went on to state that the plaintiff nevertheless filed the supplemental list of documents in order to comply with the Discovery Order and also sent the copy documents to the defendant’s solicitors in the DCPI Action.

41.  According to the plaintiff, the delay was caused by Mr Chu himself in failing to attend the plaintiff’s office with the documents.  The plaintiff pointed out in paragraph 6 of their affirmation dated 19 April 2016 that they had at the material time informed and reminded Mr Chu about the deadline for the filing of his witness statement and providing documents to prove his income in compliance with the Discovery Order; and that the plaintiff had even prepared a draft witness statement for Chu’s approval but Chu failed to attend their office to confirm instructions.  As a result, the plaintiff had to send a letter to Chu on 18 February 2013 to urge Chu to contact the plaintiff for further handling of his case and to put on record of Chu’s irresponsive behavior.  This letter was produced as an exhibit to the plaintiff’s affirmation.

42.  Mr Chan raised objection to paragraphs 6 and 8 of the plaintiff’s affirmation dated 19 April 2016 on the ground that the contents went beyond the scope allowed by the court order dated 6 April 2016.  The scope of the said order is that the affirmation to be filed by the parties be restricted to the issue as to whether the plaintiff had disclosed all the documents in its possession in the supplemental list of documents filed on 21 February 2013.  I do not think the contents went beyond the scope of the said order.  The plaintiff set out the relevant sequence of events regarding the production of documents by Mr Chu.  After the plaintiff had prepared the draft witness statement for Chu’s approval, Chu had not attended the plaintiff’s office or met the plaintiff to confirm instructions.  The plaintiff had to issue a letter to Chu on 18 February 2013 to urge Chu to contact the plaintiff.  Although, the plaintiff did not state specifically when the draft witness statement was ready for Chu’s approval, there is no dispute that it was ready as early as 31 December 2012.

43.  What the plaintiff is, in effect, saying in paragraph 6 is that Mr Chu had not attended their office and had not provided any documents to the plaintiff after 31 December 2012.  This is relevant to the issue whether the plaintiff had disclosed all the documents given to them by Chu, in particular, the bank passbook and the IRD letter with attachment.

44.  Mr Chan himself confirms that the draft witness statement was in fact prepared by him for Mr Chu.  It was ready when Mr Chan wrote in Chinese, on 31 December 2012, on the left hand corner on the first page of the draft statement that:-

(a) need to make appointment with client for preparing affirmation and witness statement;

(b) request client to bring bank passbook and IRD letter with attachment; the previous ones were only partly copied.

45.  Mr Chan agreed that when he wrote “the previous ones were only partly copied”, he referred to the bank passbook; and that the attachment to the IRD letter were the Employer’s Returns referred to in Chu’s latest affirmation dated 19 April 2016.  One can see from the notes made by Mr Chan on the draft witness statement that Mr Chu had not provided the full bank passbook and the IRD letter with attachment as on 31 December 2012.  I will return to this when I deal with Mr Chu’s allegation that the plaintiff had failed to disclose the three types of documents.

46.  There cannot be any dispute that the documents in the supplemental list of documents filed on 21 February 2013 only represented a small part of the documents required to be disclosed under the Discovery Order.

47.  According to the terms of the Unless Order, Mr Chu was required to disclose the remaining documents referred to under paragraphs 1(b), (c), (d), (e), (f), (h), (i) and to file Chu’s witness statement under paragraph 2 of the Discovery Order.  Hence, there remain quite a lot of documents to be disclosed by Mr Chu despite the filing of the supplemental list of documents by the plaintiff on 21 February 2013.  For the sake of completeness, I shall set out the type of remaining documents referred to under those paragraphs in the Unless Order as follows:-

Para 1(b): Hire agreement in respect of any taxi which the plaintiff has driven since the alleged accident on 16 July 2010;

Para 1(c): The plaintiff’s income and wage records from 17 July 2008 up to the present date;

Para 1(d): The plaintiff’s tax returns from the tax year 2008/09 to 2011/12;

Para 1(e): A list of attendance of all public hospitals in the past 10 years in relation to the plaintiff’s previous medical conditions prior to the date of accident on 16 July 2010;

Para 1(f): All medical notes and records of the plaintiff from Tseung Kwan O Hospital and its related GOPC including but not limited to Tseung Kwan O Po Ning Road GOPC from 10 July 2010 up to date;

Para 1(h): Bank passbooks and statements in respect of all the plaintiff’s bank account(s), whether held wholly by the plaintiff or jointly with another person, from 17 July 2008 up to the present date;

Para 1(i): The plaintiff’s application, all income proof (including bank passbook, electric teller card and other bank records) and all declarations as to income made by the plaintiff to the Traffic Accident Victims Assistance Scheme (“TAVAS”), and details of all payments made by TAVAS to the plaintiff in respect of the subject accident.             

48.  Mr Chan Kam Tak was the solicitor who handled Chu’s claim when Mr Chan was in the employment of the plaintiff. Although, Mr Chan denied that the DCPI Action was mainly handled by him, he had quite significant involvement in handling the case for Mr Chu when he was employed by the plaintiff.

49.  In the affirmation filed by Mr Chu on 18 March 2013 in relation to the plaintiff’s application to cease to act, it stated in paragraph 3 that Chu was contacted by the plaintiff’s staff members, including Mr Chan (the same Mr Chan Kam Tak who is now representing Chu in this hearing), who reported to him the progress of the matters and take (sic) instructions from him, in particular, the Discovery Order. Mr Chan represented Mr Chu at the hearing on 29 November 2012 when the Discovery Order was made.  He was the one who prepared the draft witness statement for Chu and he prepared the note setting out what to follow up with Mr. Chu’s case on 31 December 2012. There is no allegation by Chu that Mr Chan had been negligent or in any way mishandled his claim at the material time.  In fact, Mr Chan has, despite his departure from the plaintiff, continued to represent Mr Chu in the present proceedings.  

50.  There is no suggestion that Mr Chu did not receive the plaintiff’s letter dated 18 February 2013.  In Chu’s affirmation filed on 18 March 2013, Chu did not raise any dispute regarding the matters stated in the plaintiff’s said letter, namely, urging him to provide further documents and to attend the plaintiff’s office to confirm the draft witness statement.  The draft witness statement was ready as early as 31 December 2012.  There is no dispute that by 18 February 2013, Chu still had not confirmed his draft witness statement.  If he had attended the plaintiff’s office to provide the documents in early 2013 (as Chu claimed he did), there was no reason why Chu would not have been requested to confirm the contents of the draft witness statement so that the witness statement could be filed pursuant to the Discovery Order.  Chu did not even suggest that the failure to file the witness statement was due to the plaintiff’s negligence.  It is quite clear that Chu had not attended the plaintiff’s office between the period of 31 December 2012 and 18 February 2013.

51.  On the materials before me, there is no credible evidence to show that the 6 weeks’ delay was caused by the plaintiff’s negligence.

52.  In respect of Chu’s other allegation of failure to disclose the three types of documents by the plaintiff, the plaintiff’s submission is that, firstly, the TAVA application was already disclosed as item 14 in the supplemental list of documents filed on 21 February 2013.  Secondly, regarding the bank passbook and the Employer’s Returns, my attention was again drawn to the hand written notes made by Mr Chan on the first page of the draft witness statement on 31 December 2012 that (1) need to make appointment with client for preparing affirmation and witness statement; (2) request client to bring bank passbook and IRD letter with attachment; the previous ones were only partly copied.

53.  By the time when the plaintiff wrote to Chu on 18 February 2013 urging him to attend the plaintiff’s office with the relevant documents and to confirm the draft witness statement, Chu had not attended the plaintiff’s office since 31 December 2012.  There is no suggestion that Chu had provided the plaintiff with any further documents after 18 February 2013 when the plaintiff’s retainer was terminated.  It seems quite clear that Chu had not provided the full bank passbook and the Employer’s Returns to the plaintiff as requested.

Causation

54.  Most importantly, the question is whether the 6 weeks’ delay in filing the further list of documents or the alleged failure to disclose the three types of documents, had caused Mr Chu’s claim in DCPI Action to be dismissed by the court.

55.  It appears from paragraph 1 of the Unless Order, there was still a whole series of documents which were required to be disclosed by Mr Chu despite the filing of the further list of documents on 21 February 2013.  And under paragraph 2 of the Unless Order, Mr Chu was required to file his witness statement by 2 April 2013.

56.  There is no dispute that on the day when the Unless Order was made on 12 March 2013, the solicitor representing Mr Chu was Messrs Sham & Co.  According to the Unless Order, Mr Chu had 21 days to comply with the order.  Astonishingly, Sham & Co or Mr Chu did not seem to have done anything during this period of 21 days in relation to the Unless Order.

57.  It was incumbent upon Messrs Sham & Co. to urge Mr Chu to take immediate steps to try to obtain those documents which had been ordered to be disclosed.  If those documents were not in his possession, Mr Chu should be advised to file an affirmation stating the position and the reasons for not being able to produce the documents.  This was the least that Chu could do in the circumstances.  This was not done.  There was no witness statement filed by Mr Chu either.

58.  Mr Chan, representing Mr Chu in this hearing, is not able to provide any reasons for not filing the witness statement or the affirmation stating the fact that Mr Chu is not in possession of any of those documents and the reasons thereof.  Mr Chan’s reply to my enquiry is that he thought it would be no us. In effect, he just waited there for Mr Chu’s claim to be dismissed by the court.  The cause of the dismissal is obviously the inaction on the part of Mr Chu or Sham & Co.

59.  Mr Chan refers me to two English authorities, namely, Vision Golf Ltd. v Weightmans (a firm) [2005] 1675 (Ch), and Lloyds Bank Plc v Burd Pearse & Anor (2000) PNLR 71.  The facts in these two cases are quite different from the present case.  I do not think they assist the defendant (Mr Chu) herein.

60.  In Chu’s affirmation filed on 18 March 2013, he also complained that the plaintiff refused to release any of the documents to him after the termination of the retainer.  Chu had through his solicitors requested the plaintiff to release all his documents to him.  The plaintiff refused since Chu had not paid the bill of costs.  As stated earlier in this judgment, Mr Chan indicated in the course of this hearing that he would not pursue the ground of the plaintiff overcharging Chu so that Chu could not obtain the documents back so as to comply with the Unless Order.  It is, therefore, not necessary for me to deal with this issue in this judgment.

61.  I shall, however, just mention in passing that it appears to me that the plaintiff was quite entitled to retain the documents by reason of the solicitor’s lien over the documents pending Chu’s payment (see Li Fu Yat Tso v George YC Mok & Co [2007] 1 HKLRD 535 at para 20).

62.  There were a number of ways open to Chu to obtain the release of the documents in the circumstances.  One of which is for the successor solicitor to give a satisfactory undertaking to the former solicitor as to the outstanding costs pending taxation; or Mr Chu may even apply to court under O 106 r 3 of the Rules of the High Court for the release of the documents.  Mr Chu or Sham & Co apparently did not do so.

Conclusion

63.  In my judgment, Mr Chu’s counterclaim against the plaintiff for causing his claim in the DCPI Action to be dismissed is plainly and obviously unsustainable.  I allow the plaintiff’s application and the defendant’s counterclaim be struck out and his action against the plaintiff be dismissed with costs to the plaintiff.

64.  My orders are as follows:-

(1) Leave to the plaintiff to discontinue the action against the defendant with a costs order nisi that the defendant is to pay the plaintiff costs of the action (including any costs reserved), to be taxed if not agreed, with certificate for counsel;

(2) The defendant’s counterclaim against the plaintiff is struck out with a costs order nisi that the defendant is to pay the plaintiff costs (including any costs reserved) of the counterclaim including the plaintiff’s application to strike out, to be taxed if not agreed, with certificate for counsel;

(3) The costs orders will become absolute after 14 days.