MARK JONATHAN ROBERTS AND ANOTHER v. HAMPTON & SONS

1988, No. A7139

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. I have before me a summons issued on behalf of the defendants to stay proceedings instituted by the plaintiffs on the grounds that England is the appropriate forum for the trial.

2. The 1st plaintiff (Mr Roberts) is a partner with one of the largest firms of solicitors practising in Hong Kong whilst the 2nd plaintiff, is his wife. At all material times Mr Roberts acted for himself and his wife.

3. The defendants are a firm of estate agents and investment consultants whose head office is in London, but who have an office in Hong Kong in association with First Pacific Davies Properties Limited. The defendants have, during the last three or four years through their Hong Kong office promoted the sale, letting, investment and management of residential properties in London by regular presentations and advertising in local publications.

4. As a result of various communications between Mr Roberts and Mr P. A. Jackson, a director of the defendants, Mr Roberts decided to purchase a property in London for investment purposes. Following a representation by Mr Jackson in a telephone conversation on the 7th April 1987 that he could expect a rental of between £325 and £350 per week depending on the standard of its decoration, Mr Roberts decided to purchase a flat at 61C Albany Street, London NW1. Before completion took place, Mr Roberts received information from a Miss Pank, an employee of Savills, another London based property consultant and estate agent, which indicated that there might be difficulties in letting properties in the area where the flat was situated. Accordingly, he referred this matter back to Mr Jackson who stated that he did not envisage any difficulties in letting the property. Based upon these representations, the property was purchased in July 1987 for £170,000. The property was then placed in the hands of the defendants as letting and management agent, but as the property could not be let by the beginning of September 1987, it was placed with another firm of estate agents, Phillips, Kay & Lewis (PKL) as joint letting agents with the defendants. It is alleged by Mr Roberts that Mrs Moir of PKL had given advice to him that the proposed rent of £325 to £350 per week was excessive and that a more realistic rent was £250. As the property had not been let by December 1987 it was at Mr Jackson's suggestion, placed on the books of a third estate agent, Brian Lack & Co. (BLC), who, through Miss Harris, advised that the property should be offered at a rent of £275 per week negotiable down to £250 per week. On the 14th March 1988, an offer to rent the property at £225 per week, which was subsequently increased to £275 per week, for a tenancy of three months was rejected by Mr Roberts. In May 1988, having regard to the difficulties encountered in trying to let the property, Mr Roberts received advice from Mr Denis and Miss Harris of BLC to sell the property, which he did on the 29th July 1988 for £190,000.The plaintiffs commenced the present action on the 2nd November 1988 claiming damages in the sum of £30,088.89 for negligence on the grounds that the defendants failed to exercise reasonable skill and care in the advice and representations that were made.

5. The law with regard to forum non conveniens was reviewed comprehensively in the case of Spiliada Maritime Corp. v. Cansulex Ltd. [1987]1 A.C. 460 which was a case involving service out of the jurisdiction. The principles show that when a plaintiff was entitled to commence an action within the jurisdiction, the court applying the doctrine will only stay the action if the defendant satisfies the court that such other forum is more appropriate. In his speech at pages 474 and 475, Lord Goff said :-

"I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However the Latin tag (sometimes expressed as forum non convenient and sometimes as forum conveniens) is so widely used to describe the principle, not only in England and Scotland, but in other Commonwealth jurisdictions and in the United States, that it is probably sensible to retain it.  But it is most important not to allow it to mislead us into thinking that the question at issue is one of 'mere practical convenience.' Such a suggestion was emphatically rejected by Lord Kinnear in Sim v. Robinow, 19 R. 665, 668, and by Lord Dunedin, Lord Shaw of Dunfermline and Lord Sumner in the Societe du Gaz case, 1926 S.C. (H. L.) 13, 18, 19 and 22 respectively. Lord Dunedin, with reference to the expressions forum non competens and forum non conveniens, said, at p. 18 :

'In my view, 'competent' is just as bad a translation for 'competens' as convenient is for 'convenient.' The proper translation for these Latin words, so far as this plea is concerned is 'appropriate'.'

Lord Sumner referred to a phrase used by Lord Cowan in Clements v. Macaulay (1866) 4 Macph 583, 594, viz. 'more convenient and preferable for securing the ends of justice,' and said, at p. 22:

'one cannot think of convenience apart from the convenience of the pursuer or the defender or the court, and the convenience of all these three, as the cases show is of little, if any, importance. If you read it as 'more convenient, that is to say, preferable, for securing the ends of justice, 'I think the true meaning of the doctrine is arrived at. The object, under the words s 'forum non conveniens' is to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends.'

In the light of these authoritative statements of the Scottish doctrine, I cannot help thinking that it is wiser to avoid use of the word 'convenience' and to refer rather, as Lord Dunedin did, to the appropriate forum."

6. It is therefore necessary to show that Hong Kong is not the natural or appropriate forum for the trial, but to establish that there is another available forum which clearly, or distinctly, is more appropriate than the Hong Kong forum for jurisdiction is founded as of right in Hong Kong. One of the factors to be decided is where the trial can be heard with substantially less inconvenience and expense. The natural forum is that with which the action has the most real and substantial connection. The argument put forward on behalf of the defendants is that in fact all the likely witnesses apart from the plaintiffs live and work do England.

7. Mr Bunting, counsel for the defendants, concedes that the cause of action arises in Hong Kong, but contends that as the subject matter relates to property in London, London is therefore the appropriate forum.

8. Mr Gray, a partner in the defendants' firm of solicitors, in an affidavit sworn on the 1st December 1988, states that Mr Jackson at the material time was employed by the defendants and was seconded to Hong Kong as their representative during which time he was temporarily resident in Hong Kong. However, he concludes that the facts show that England is the more appropriate jurisdiction for the following reasons :-

(1)    The property is situate in England;

(2)    The property was inspected by the 1st plaintiff 's mother, who is likely to be a relevant witness and who resides in England;

(3)    Mr Jackson left Hong Kong in February 1988 and since then has continued working from the defendants' office in London;

(4)    In the statement of claim, the 1st plaintiff relies upon statements made by Mrs Moir of PKL, Miss K. Harris of BLC and Mr Denis of BLC; and an oral admission of Mr Lamb of the defendants' London Headquarters;

(5)    Evidence as to the state of the London property market, rentability and rental levels over the relevant period will be required and the necessary experts are likely to be based in London;

(6)    In this respect and on the basis that the plaintiffs succeed on liability damages will need to be assessed, which will necessitate the assistance of experts who will be in London;

(7)    It is believed that the - plaintiffs frequently visit London.

9. In his affidavit in reply, Mr Roberts says that he has lived in Hong Kong for more than eleven years and that his wife who was born here has lived all her life in Hong Kong apart from a period of study in America. She is at present working as an architect for the Hong Kong Government.

10. Mr Roberts denies that he makes frequent visits to England and in the past eleven years has visited England four times on business and five times on holiday. At the present time, he has no intention of visiting England until the summer of 1990. His wife has only made five visits to England. On the other hand, the defendants are promoting business in Hong Kong, it has a full-time employee in Hong Kong and its directors make frequent visits here to meet new and former clients. He states that Mr Jackson was in Hong Kong on the defendants' behalf during a Money Asia Exhibition in 1988.

11. An affidavit has been filed by Miss Beaney, Managing Director of the defendants in London, in which the defendants deny liability. She refers to the fact that whilst there are more than ten other firms in Hong Kong that specialise in property investment in London to which Mr Roberts referred, she does not believe that sufficient expertise could be found in Hong Kong, but rather in England for such evidence emanates from England to Hong Kong.

12. The present case does not involve a foreign element as the law and procedure in Hong Kong and England are both the same. This will also apply to the measure of damages if the plaintiffs succeed on liability. Further, there is no issue in this case that any legitimate, personal, or juridical advantage will be derived. The only real factor advanced by the defendants for the forum to be changed is for the convenience of witnesses and the substantially higher expense that is likely to be incurred if the case is to be heard in Hong Kong.

13. The question for the court is what justice as between the parties requires. The defendants have held themselves out in Hong Kong for between three and four years as estate agents to promote the sale of properties in London and other parts of the world. They have a permanent director living and working here. The negotiations and the invitation to Mr Roberts to invest all took place in Hong Kong where the plaintiffs live and work. Excluding the evidence of Mr Roberts and Mr Jackson, the majority of the witnesses who are likely to give evidence will do so within a narrow compass. Some of this evidence may be agreed, but if it is not and the witness is not available to come to Hong Kong, such evidence can be taken on commission. In any event, I do not consider that it is likely that all the witnesses to whom Mr Bunting referred will give evidence. I cannot see that Mr Denis or Mr Roberts' mother as just two examples will be called. Expert evidence as to rentability and rents that could have been obtained at the material time will clearly necessitate a detailed consideration of documentary evidence. Discovery could well result in an agreement in respect of many of those documents, but in any event expert evidence should not create any particular difficulty. One would, indeed, expect as a matter of common sense that this evidence should be available from experts in Hong Kong, who would be expected to give such advice to their clients when they are consulted.

14. The plaintiffs were quite entitled to institute proceedings as of right in Hong Kong for the cause of action arose here and the defendants have an office in Hong Kong while Mr Roberts, will be the principal witness at the trial. As I have said the only substantial reason that has been put forward on behalf of the defendants for the case to be tried in England is purely one of convenience which is not the test as to the suitability or appropriateness of the relevant jurisdiction.

15. On the question of justice, I would pray in aid the words of Penlington, J.A. in the case of Wo Fung Paper Making Factory Ltd. v. Sappi Kraft (Pty.) Ltd. [1988] 2 H.K.L.R. 346 which was cited to me by Mr Ribeiro, counsel for the plaintiffs where at 360 he said :-

"Where a foreign company actively solicits sales in Hong Kong through an agent, I see no injustice if a commercial dispute arising therefrom is tried in these courts, unless there are clear reasons to the contrary."

16. I am quite satisfied that the natural and appropriate forum for the trial of this action is Hong Kong so that the burden placed upon the defendants has not been discharged. As a result, the summons will be dismissed with costs to the plaintiffs.