CHIU CHUNG WAH WARREN v. LEE SHEUNG YAN LESTER

DCCJ 3958/2018

[2023] HKDC 1008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3958 OF 2018

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JUDGMENT

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Introduction

1.  This is a dispute between two insurance agents over the terms of an oral contract, entered into between them at a face-to-face meeting on 28 February 2017. It is common ground there was a contract – the dispute relates to the express terms said to have been agreed orally.

Background Facts

2.  The plaintiff (“P”) and the defendant (“D”) were insurance agents with MassMutual. Like most insurance agents in Hong Kong, they were self-employed, but organized into teams. At all material times, P was in a team called GoAhead (“the Team”). D was the leader of the Team.

3.  It is common ground back in 2017, the Team had regular face-to-face meetings on Tuesdays. At one such regular meeting on 28 February 2017 (“the February Meeting”), D announced an intra-team competition which he called “GoAhead MDRT Challenge” (“the Competition”). This was done orally, without anything in writing. There was no video or audio recording of what was uttered by D at the February Meeting. P and D would now, with the benefit of hindsight, consider this extremely unwise.

4.  Some rules of the Competition, exactly as announced by D at the February Meeting, are undisputed. By way of example, P and D agreed that:-

(1)  Only members of the Team could participate.

(2)  Each participant must pay D HK$1,000 as the entry fee.

(3)  D must pay the winner HK$100,000 (“Final Prize”).

5.  Since P agreed to participate in the Competition, agreed to pay the entry fee, and paid the entry fee, a legally enforceable contract between P and D (“the Contract”) was created. The parties agree they intended to create a legal relationship.

6.  The parties’ versions of events differed on one point.

7.  On P’s case, it was an express term of the Contract if P could attain a first-year commission of HK$522,300 for the year 2017 before any other participant, D shall be obliged to give him the Final Prize.

8.  On D’s case, the Contract had a further express term requiring the participant who attained a first-year commission of HK$522,300 before any other participant to have become a member of MDRT before he could claim the Final Prize.

9.  Since P did attain a first-year commission of HK$522,300 for the year 2017 before any other participant, but P did not become a member of MDRT, a dispute arose between P and D as to whether P was or was not entitled to the Final Prize.

10.  That dispute escalated into a full-blown trial which took place before me on 30 & 31 May 2023, and 1 June 2023.

11.  At the end of the full-blown trial, I reserved my judgment, and indicated I would hand-down my judgment within 6 months.

12.  This is my judgment. In gist, for reasons which I shall set out in full below, I take the view that I should dismiss this action.

The Witnesses – Overview

13.  Three witnesses gave evidence.

14.  The first witness was P. P confirmed the truth of his Amended Statement of Claim (“ASoC”), and then confirmed the truth of his 21-page witness statement which he prepared back in November 2021. He was then cross-examined by Mr Brian Chok, counsel for D. As I shall elaborate at appropriate places below, I find P’s evidence wholly unreliable, and I reject the same in so far as it is self-serving or contradicted.

15.  The second witness was Chan Kin Yi (“Ms Chan”), indirect supervisor of P in the Team at the material time. She confirmed her 8-page witness statement, which she prepared in November 2021, and adopted it as her evidence-in-chief. She was then cross-examined by Mr Brian Chok, counsel for D. As I shall elaborate at appropriate places below, I also find Ms Chan’s evidence wholly unreliable, and I reject the same in so far as it is self-serving (in the sense of supporting P’s case) or contradicted.

16.  The last witness was D. He made two witness statements, one in September 2021, the other in July 2022. He confirmed the truth of both and was then cross-examined by Mr Li Pak Hei, counsel for P. As I shall elaborate at appropriate places below, on my overall assessment, I find D’s evidence more reliable, and I prefer his evidence over the evidence of either P or Ms Chan.

The Law – Analyzing Evidence

17.  Numerous cases had been cited to me suggesting how I should go about analyzing the evidence. I considered all of them. They are in fact very well-known and need not be recited in full. In my view, what was said by DHCJ Thomas Au, as Au JA then was, in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513 (§53), and what was said by DHCJ Paul Lam SC, as he then was, in Taishin International Bank Co, Ltd v QFI Limited [2020] HKCFI 2116 (§13), were particularly helpful. I am also fully aware of what was said in Phipson on Evidence (20^th Edition, Chapter 45, and in particular §45-24), and I considered that as well.

My Analysis of P’s Evidence

18.  I find P’s evidence wholly unreliable for these reasons:-

(1)  This dispute being about what was said by D during the February Meeting, I asked P to tell me what according to his own recollection was actually said by D using the original language used by D, ie, Cantonese. P’s answer showed that §20(c) of his witness statement, written in English and confirmed by him on oath earlier that day, must be false. Or, if §20(c) of his witness statement was true, then P’s direct answer to my question was false. P had been given a full opportunity to explain that crucial discrepancy, but P was unable to provide an acceptable explanation for it. I am unable to rely on either version of his evidence.

(2)  In §25 of P’s witness statement, written in English and confirmed by P on oath, P used the phrase “… when I was awarded as the Final Winner in September 2017”. However, when P was specifically asked about this just later on the same day, P changed his evidence and said he was actually awarded as the Final Winner in August 2017. P was asked why, then, did he confirm the truth of §25 without correction just earlier that day. P alleged he overlooked the mistake. I find that unacceptable. It seems crystal clear to me P never cared about accuracy, or the truth, even when giving evidence under oath. P’s indifference to accuracy or the truth is shocking.

(3)  Mr Chok asked P to tell him the exact words used by D in a face-to-face oral conversation on 13 February 2018 when P and D met in Causeway Bay. P said most firmly that D’s exact words were “你係 GoAhead 嘅人我咪俾你囉” [English translation: “I will give to you if you are of GoAhead”]. That actually made no sense because at that point (a) D left MassMutual; (b) the Team ceased to exist; (c) D had not joined a new insurance company; and (d) D did not tell P whether a new team of insurance agents to be created by him in a new place would retain the same name. P also firmly said D did not ask him to join D’s new team. All these were different from what P previously said in §48 of his witness statement, which P confirmed on oath just earlier that day. P was given a full opportunity to explain that crucial discrepancy, but P was unable to say anything logical or comprehensible in reply and was most evasive.

(4)  Mr Chok asked P whether P considered the words used by D on 13 February 2018 amounted to a threat. P said, firmly, that yes, they amounted to a threat. That was in fact the exact opposite of what P previously said in §49 of his witness statement, which P confirmed just earlier that day. In my view, this showed P never cared about accuracy, or the truth, even when giving evidence under oath. Again, P’s indifference to accuracy or the truth is shocking.

(5)  Mr Chok asked P about §69 of P’s witness statement, which in turn referred to an unsigned printed document (“the Printed Document”). The Printed Document did not on its face show who its author was. On its face, the Printed Document could have been typed up by anyone. P said, under oath, that P was unsure whether its author was D, and P never attempted to verify authorship. P’s evidence here was telling because in §69 of P’s witness statement, P had in fact repeatedly used the expression “Mr Lee has stated that” in relation to what was in the Printed Document, which suggested P was positive that D wrote or typed up the Printed Document. P was given a full opportunity to explain. However, P was unable to give any logical answer as to why P used the expression “Mr Lee has stated that” vis-a-vis the contents of the Printed Document when P confirmed under oath he was not sure whether D authored those contents. In my view this showed P never cared about accuracy, or the truth, even when giving evidence under oath. Once again, P’s indifference to accuracy or the truth is shocking.

My Analysis of Ms Chan’s Evidence

19.  I find Ms Chan’s evidence wholly unreliable as well, for these reasons:-

(1)  Ms Chan confirmed, under oath, that all contents of her witness statement were within her personal knowledge. However, that was untrue. She admitted the Team had no experience of members becoming MDRT members, so she did not herself know what would happen upon a member officially becoming an MDRT member. Yet in §25 of her witness statement, she referred to §66(b) of P’s witness statement, which in turn alleged that within MassMutual, having become eligible for MDRT would be treated as having been admitted as MDRT so formal admission was “unnecessary”. In other words Ms Chan alleged that within MassMutual there was no difference at all between (a) being merely eligible for MDRT; and (b) being admitted as a member of MDRT. She did not in fact know that since the latter never happened in the Team. As such, Ms Chan was plainly attempting to give evidence on matters beyond her own knowledge, when she said she did not and would never do so. In my view, this showed Ms Chan never cared about accuracy or the truth, even when giving evidence under oath. Indeed, I find Ms Chan’s speculations on this issue shocking.

(2)  In §12 of Ms Chan’s witness statement, Ms Chan said, in her own words, “On or around mid-February 2017, during a managers’ meeting of the GoAhead Team… Mr Lee informed the managers that… (a) The GoAhead Team has never produced a member who has successfully been qualified for becoming an MDRT basic member since its establishment in 2007…”. Yet, when specifically asked about this, she alleged she did not know MDRT, as an independent organization, had a membership application requirement, or even a list of members, and she never thought about this because her thinking was never so “deep”. In my view, Ms Chan’s evidence on this is illogical, and thus highly unlikely to be truthful.

(3)  In §29 of Ms Chan’s witness statement, Ms Chan said, “on or around 29 March 2018, Ms Law contacted me by way of WhatsApp messages…”. Yet, when Mr Chok specifically asked her about this, Ms Chan said「我又唔記得WhatsApp定係佢打俾我喇… 我真係唔記得咗呀… 我錯誤囉… 我認為錯囉呢個位…我真係錯咗嘅… 呢個我真係承認嘅…」In other words, Ms Chan first said Ms Law’s communication with her was by WhatsApp, but later the very same day said that was false. Both of her answers were given under oath, and one of them must be false. In my view, this also showed Ms Chan never cared about accuracy or the truth, even when giving evidence under oath. I do find Ms Chan’s indifference to accuracy or the truth shocking.

(4)  Mr Chok specifically put to Ms Chan that the contents of Ms Chan’s witness statement were different from the truth. Ms Chan agreed.

(5)  In §14 of Ms Chan’s witness statement, Ms Chan said, “… Mr Lee has requested all managers of the GoAhead team to participate in the Challenge. I believe Mr Lee has done so for the following reasons… (a) … Mr Lee hoped that…”. Mr Chok asked Ms Chan whether she was guessing. Whilst Ms Chan initially denied she was guessing, upon realizing what was inside D’s own mind must be beyond her knowledge, Ms Chan admitted she was just guessing. Once again, therefore, Ms Chan was clearly attempting to give evidence on matters beyond her knowledge, when she previously insisted she would never do so. In my view, this further showed Ms Chan never cared about accuracy or the truth, even when she was giving evidence under oath. I find Ms Chan’s wild speculations, as well as her indifference to accuracy or the truth, most shocking.

(6)  In §14 of Ms Chan’s witness statement, Ms Chan also said, “(b)… this would limit Mr Lee’s ‘costs exposure’ to HK$70,000…”. I asked Ms Chan whether she was guessing. Upon realizing while she had done her own calculations, it was beyond her knowledge whether that was also how D had done his calculations, or whether D had done any calculation in his mind at all, Ms Chan admitted she was just guessing. Once again, therefore, Ms Chan attempted to give evidence on matters beyond her knowledge, when she previously insisted she would never do so. In my view, this further showed Ms Chan never cared about accuracy or the truth, even when she was giving evidence under oath. I find Ms Chan’s wild speculations, as well as her indifference to accuracy or the truth, most shocking.

(7)  Ms Chan was specifically asked why she saw fit to put contents which were clearly beyond her knowledge, or just her guesswork, into her witness statement. She was unable to provide any logical answer.

My Analysis of D’s Evidence

20.  I find D’s evidence more reliable because:-

(1)  All of D’s evidence, including D’s explanation on why he was so keen to get at least one member of the Team to acquire formal MDRT membership, not just MDRT eligibility, accorded with common sense.

(2)  D’s demeanour while giving evidence demonstrated to me D was honest, sincere, frank and direct. D answered questions in a natural and spontaneous manner. D cared about accuracy and truthfulness, and it showed.

What Was Said?

21.  In my view, having received and then carefully considered all evidence, the first thing I must do is to make a definitive factual finding as to the exact words uttered by D during the February Meeting, so far as the same would be material to my determination of the objectively correct final outcome for this action.

22.  According to P’s oral evidence, the exact words uttered by D in Cantonese during the February Meeting were:-

「第一個做到MDRT條數嘅，就會有十萬蚊」

[English Translation: “The first who achieved the figure for MDRT would have $100,000”]

23.  On Ms Chan’s oral evidence, the exact words were:-

「最快做到MDRT條數就可以攞十萬蚊」

[English Translation: “The quickest to achieve the figure for MDRT can grab $100,000”]

24.  According to D’s oral evidence, the exact words were:-

「只要俾一千蚊，而你係最快做到MDRT，你就可以贏十萬蚊 … 咁希望所有GoAhead嘅同事你哋去參與，去諗吓點樣去做MDRT，做多啲業績，搵多啲錢…大家努力去做MDRT」

[English Translation: “Only need to pay $1,000. And if you are the quickest to achieve MDRT, you can win $100,000… I hope all GoAhead colleagues can participate, go and think about how to be MDRT, create more sales volume, make more money… Let us all work hard to be MDRT”]

25.  In my view, the truth is more likely to be as stated by D. On balance of probabilities, therefore, I find the words uttered by D during the February Meeting to be exactly as set out by D in his oral evidence (and as recited at §24 above), which I shall henceforth refer to as “the Words”. I make this factual finding for these reasons:-

(1)  The evidence of P and Ms Chan is generally unreliable, whereas the evidence of D is generally reliable, for the reasons already explained above.

(2)  In relation to this specific aspect of the evidence of the trial, I fully accept D’s sworn evidence to the effect that the whole point of creating the Competition in the first place was to motivate members of the Team to become formal MDRT members, so that D, as the leader of the Team, would then be able to brag about this, bring some prestige or awe-inspiring reputation (威) to him and the Team, and to use this to recruit more talent to the Team, which would in turn bring more benefits to him. In fact, that was the very reason why he called the Competition the “GoAhead MDRT Challenge”, instead of “Money Challenge” or “Commission Challenge”. D’s evidence on this is logical. Given this background, it is indeed a lot more likely that D said “做到MDRT”, and not “做到MDRT條數”, during the February Meeting.

What They Meant

26.  Having found D uttered the Words, the next step is to rule on what they meant, contractually speaking. This is difficult since the phrase “最快做到MDRT” is rather odd. It is rather odd since becoming a formal member of MDRT for any particular year requires the approval of MDRT, an independent 3^rd party based in the US, and the approval for all members would take place at the exact same time. That means technically speaking, in any given year, no person can be “quicker” than another in becoming a formal member of MDRT. Each formal MDRT member becomes a formal MDRT member at the exact same time as other formal MDRT members.

27.  I have, of course, considered all well-known authorities on the interpretation of contracts. Of all that had ever been said on the topic, I find what was stated by Lord Hodge JSC in Wood v Capital Insurance Services Ltd [2017] AC 1173 (§11 to §14), which had been applied in Hong Kong in Eminent Investments (Asia Pacific) Ltd v DIO Corp (2020) 23 HKCFAR 487 [2020] HKCFA 38 (§42 to §46, per Ribeiro PJ and Lord Collins NPJ), to be most helpful in the present scenario. In gist, this court should look at (1) the ordinary and natural meanings of those words chosen by the parties; and (2) the context. Where there are rival meanings, this court should give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. What was stated above is binding on me and is in any case correct. I shall apply the above in my interpretation of the Words.

28.  I have also reminded myself that as a matter of law my task is to determine what a hypothetical reasonable person would have understood the parties to have meant by using the language which they did, bearing in mind (1) the factual background known to both parties; and (2) the practical objects which the Contract was intended to achieve. The test is objective. See, eg, Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923 (§20, per Coleman J), upheld on appeal [2021] HKCA 1456 (per Kwan V-P). In performing this task, I must be careful not to rewrite the Contract for the parties. See, eg, Champion Concord Ltd v Lau Koon Foo (No 2) (2011) 14 HKCFAR 837 (at §69 to §76 per Ribeiro PJ) and all authorities in turn cited therein, including Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101.

The Rival Meanings

29.  In my view, on hearing or reading the Words, the Words could have either of these two rival meanings:-

(1)  Whoever reached the sales figure necessary for MDRT membership before everyone else gets the HK$100,000 (“Rival Meaning #1”); and

(2)  Whoever reached the sales figure necessary for MDRT membership before everyone else and then proceeds to get formally accepted as a member of MDRT by MDRT gets the HK$100,000 (“Rival Meaning #2”).

30.  P would of course favour Rival Meaning #1, whereas D would favour Rival Meaning #2. This is reflected in the parties’ pleadings.

31.  In §6.4 of D’s Defence, D explicitly pleaded this vis-à-vis the terms of the Contract:-

“It is further averred that it is also a condition that the Eventual Winner must have been granted the membership of the MDRT (the “MDRT Membership”) before he/she can claim the Final Award and the said membership will only be confirmed in March every year. In order to acquire the MDRT Membership, a renewal rate of 85% of the insurance policies handled by the applicant is necessary or else MassMutual will not apply for the MDRT Membership on behalf of its agents.”

32.  Having read §6.4 of D’s Defence, P chose to file no Reply so that Order 18 rule 14 of the Rules of the District Court (Cap 336H) kicked in, and §6.4 of D’s Defence became deemed “not admitted” by P.

33.  In terms of closing submissions, Mr Chok, counsel for D, said this (§96.4):-

“Commercially speaking, it makes no sense for D to simply require the members of the “GoAhead” team to meet the Qualification Threshold only, when the additional cost of acquiring the MDRT Membership is minimal when compared with the collateral benefits the title would bring to himself and his team, ie, pride and reputation.”

34.  Against that, Mr Li, counsel for P, said these:-

“MDRT qualifiers would become MDRT members at the same time… if MDRT membership was meant to be a condition to obtaining the Final Award, that must be expressed as a separate condition… ‘the first one becoming MDRT’ would only make sense as a condition to winning the Final Prize if this phrase is understood as being the first participant attaining the Target.” (at §18)

“It is submitted that the term ‘MDRT’ is a loose term… ‘MDRT’ may be referring to the status of being qualified for applying for MDRT membership… P had become a ‘MDRT’ under the loose meaning of the term ‘MDRT’ by attaining the Target” (at §23)

“being MDRT-qualified could achieve, at the very least, similar marketing effect as being an official MDRT member” (at §25)

“… P is not running a case that one could claim to be an MDRT member without making the requisite application to MDRT. As a matter of title, P acknowledged the distinction between being a MDRT qualifier and MDRT member. However, MDRT qualifiers and MDRT members receive equal preferential treatment within MassMutual” (at §32)

35.  I agree with Mr Chok, and disagree with Mr Li.

36.  Firstly, there is no reliable evidence that (1) MDRT qualifiers; and (2) official MDRT members would receive “equal treatment” within MassMutual or produce similar marketing effects. P had never called any official MDRT member for the year 2017 to give evidence, and I therefore do not know how an official MDRT member for the year 2017 was treated in MassMutual, or what marketing effects had been produced by him/her after he/she became an official MDRT member for the year 2017. P never called any officer of MassMutual responsible for making or implementing policy decisions to give evidence on that corporation’s 2017 policies vis-à-vis MDRT qualifiers and official MDRT members, when one would have expected P to do so given his assertion that his point applied to the whole corporation. Guesswork of P and Ms Chan is of no evidential value, since neither of them had ever become an official MDRT member and they did not know what would happen if either of them had become one for the year 2017. P’s assertion on these matters must be rejected as unsubstantiated by reliable evidence, and speculative.

37.  Secondly, I reject Mr Li’s submission that MDRT is “a loose term”. It is usually unhelpful for any person to adduce evidence on how an unrelated person understood the term since people’s understanding can be wrong, and different people can be wrong in completely different ways and for different reasons. Evidence on people’s subjective understanding may well be legally admissible, but that does not make it helpful in adjudication. There are in fact only two relevant persons (namely, P & D) in this action, and it is the objective understanding of a hypothetical reasonable person in their positions which matters. In terms of admissible and relevant evidence, having rejected the evidence of P and Ms Chan as unreliable for the reasons set out above, I am effectively left with (1) the official correspondence with MDRT; and (2) D’s own sworn evidence. Other various pieces of evidence in relation to this are in my view of no, or negligible, value, and I attach no weight to them.

38.  From the official correspondence with MDRT, MDRT clearly took P’s misuse of the MDRT name extremely seriously. There is nothing “loose” about the term “MDRT”, in so far as MDRT itself is concerned. I can readily understand the position taken by MDRT, as I would imagine in most jurisdictions it would be a serious crime to use the term loosely. Both parties to this action agreed that in Hong Kong, the term “MDRT”, unlike, for example, “solicitor”, was not subject to specific statutory protection of the kind currently found in Section 46 of the Legal Practitioners Ordinance (Cap 159), but that does not mean the term’s usage was wholly unregulated by the general law of Hong Kong. A dishonest misrepresentation based on an inaccurate or misleading usage of the term “MDRT” may well be caught by Section 16A of the Theft Ordinance (Cap 210) and amount to statutory fraud. As the Court of Appeal emphasized in HKSAR v Yeung Hon Keung, Larry (CACC 233/2006, 6 September 2007), deceit for entirely selfish ends must be viewed seriously. I would have thought this should be exceedingly obvious to any person with some integrity and honesty.

39.  As to D’s sworn evidence, in so far as material to the point, it was essentially as follows: -

「當提及MDRT時，不論公眾、保險業界和MDRT機構，共識都是指MDRT會員。」

「我哋呢行去present MDRT，一定係講MDRT member，即係你只要上Google search MDRT，你只要一search就係MDRT member嚟㗎喇… 每一年嘅會… at least 公司，都不停present呢樣嘢，所以大家對MDRT 一定係好清晰嘅呢一個term。」

「其實一講MDRT，我哋呢行就係講MDRT member。」

「係呀，佢如果話MDRT會員出席，咁Warren就去唔到㗎喇… 因為名不正，言不順吖嘛… 你冇呢個名，你present… 即係你就算讀晒所有律師嘅課程，做晒所有嘅實習，但係你冇去公會度登記，冇俾會費，你亦都唔可以話自己係律師。」

「MDRT就係MDRT會員，佢做到我先至可以幫我要face 喇，我沾佢嘅光囉。」

40.  I accept D’s sworn evidence in relation to this. I am satisfied P, or a hypothetical reasonable person in P’s position, must have or would have understood any reference to “MDRT” as being an official member of MDRT, approved as such by MDRT.

41.  In my view, the repeated references to “MDRT” in the Words uttered by D could only be understood by a hypothetical reasonable person as being an official member of MDRT, approved as such by MDRT.

42.  In fact, whilst out of billions of people in the world, there are bound to be some who would most unreasonably treat some words as loose, as far as P and D are concerned, I am positive they at all times knew exactly what MDRT meant. I do find as a fact that they knew MDRT meant MDRT membership (as opposed to MDRT eligibility). A hypothetical reasonable person in their positions would also have the exact same understanding.

43.  Thirdly, with respect, I reject Mr Li’s submission that had it been a term of the Contract that P must apply for MDRT membership, this would have been expressed separately. In my experience, insurance agents do not usually speak like litigation lawyers. The simple expression used by D in the course of the February Meeting may, with the benefit of hindsight, be considered exceedingly unwise, but there was nothing improbable about D having used the Words, within an intra-team meeting which D obviously did not anticipate would turn into acrimonious litigation lasting 5 years, to express Rival Meaning #2.

44.  Fourthly, as Ma CJ said in Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351 (§15), the surer guide to interpretation is quite usually the context. In our present case, the context is that D wanted the Team to produce a formal MDRT member for reputational purposes – that was the whole point of D’s creation of the Competition. That purpose must have been fully understood by all members of the Team who attended the February Meeting, as that would be the only logical reason why D kept referring to “MDRT” instead of a random round figure (say, HK$500,000, HK$800,000, or HK$1,000,000) wholly unrelated to the process of MDRT membership application, when he was speaking to all of them. In my view, no reasonable person could have understood otherwise.

45.  In my view, it would make no sense whatsoever, and it would be absurd, for the Contract to say the winner would only have to obtain the figures for, but not the official title of, MDRT. Rival Meaning #2 is plainly the construction substantially more consistent with the factual matrix, and with business common sense, and is what a hypothetical reasonable person would have understood the parties to have meant by using the words which they did.

46.  The parties’ references to “be MDRT” must also be references to both (1) getting the sales figure necessary for MDRT membership; and (2) proceeding to get formally accepted as a member of MDRT. Again, in my view, no reasonable person could have understood otherwise.

47.  I therefore rule in favour of Rival Meaning #2.

Conclusion

48.  As Rival Meaning #2 is the correct construction of the Words, §6.4 of D’s Defence is correct.

49.  Since P never became a member of MDRT, he is not, and was never, entitled to the Final Prize under the Contract.

50.  This action should therefore be dismissed.

Other Matters

51.  Mr Li, counsel for P, submitted that D never pleaded implied terms, and that I should therefore never decide this action on the basis that there could be implied terms. Mr Li further submitted, in heavy reliance on the majority judgment in Barton v Morris [2023] AC 684 [2023] UKSC 3 (§38 & §39, per Lady Rose), that even if I were to entertain the possibility of there being implied terms in the Contract, I should on the merits decline to rule in favour of any.

52.  Given my rulings above, neither of these issues arose. I would express no view on what was said by the UKSC in Barton v Morris (above), or on the absence of alternative pleas in D’s Defence.

53.  For the avoidance of doubt, I am aware Mr Li, counsel for P, being thorough, made various other points, factual and legal, in his 34-page written closing, all of which I had carefully considered. The fact that I have not specifically referred to all such points in this judgment does not mean I failed to consider them. It simply means I have considered them but did not consider the same to be material to, or necessary for, my determination of the real issue in dispute in this action. This should not be interpreted as a kind of criticism of counsel either. It simply means I have disagreed with counsel’s own judgment on issues of materiality. This is, of course, normal, or at least a common occurrence, in our litigation system.

54.  By way of example, Mr Li spent quite a lot of time exploring what can perhaps be called “the dummy cheque incident” where P had been presented with a giant “dummy cheque” in September 2017 and the whole thing was turned into a Facebook Post for marketing purposes. Whilst I can see why Mr Li saw fit to spend considerable time on that specific incident, at the end of the day I do not consider that social media marketing stunt to be of assistance in my determination of the contractual terms created much earlier in February 2017. For the record, I am aware D gave full reasons, as part of his own sworn oral evidence, as to why he did what he did back then, and I accept D’s explanation as logical and true. In gist, D reasonably expected P to proceed to apply for MDRT membership in due course, as a normal person would, and the fact that P chose not to do so surprised D. I accept that as true.

55.  In my view, nothing turns on that dummy cheque incident, or indeed similar incidents.

Costs

56.  The parties agreed I should make an order nisi for costs. D is the clear winner in this litigation, and costs should follow the event. On a nisi basis, I hereby order P to pay all costs of this action, including all costs previously reserved if any, to D, the quantum of which is to be taxed with certificate for counsel if not agreed (“the Order Nisi”).

57.  Unless a party takes out a summons within 14 days from today to vary the Order Nisi, the Order Nisi shall become absolute without further order.

Disposition

58.  I dismiss this action and make the Order Nisi above.

Final Remarks

59.  I thank both counsel for their most able assistance.