HAMPTON, WINTER & GLYNN (a firm) v. ERVING BRETTELL (a firm)

HCA 5290/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5290 OF 1998

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J U D G M E N T

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1. This is an appeal from the order of Mr Registrar C Chan made on 1 March 2001 whereby he ordered that this action be transferred to the District Court.

2. The relevant provision is to be found in s 43 of the District Court Ordinance, Cap 336. By s 43(1) the Court of First Instance may order the transfer to the District Court the action which appears to the Court of the First Instance likely to be within the jurisdiction of the District Court. There is no doubt that this action is likely to be within the jurisdiction of the District Court. The amount claimed is HK$325,000. By sub-section (3) the Court of First Instance is required to make an order for transfer unless

"it is of the opinion that, by reason of the importance or complexity of any issue arising in the action or proceedings, or for any other reason, the action or proceedings ought to remain in the Court of First Instance."

The plaintiff relies on all three matters namely, the importance, the complexity and for any other reason in its appeal and it argues that the action should remain in the Court of First Instance in the High Court.

3. The claim by the plaintiff, as solicitors, is against the defendant, also as solicitors. Briefly, the complaint is two fold :

(1) that the defendant caused and/or assisted its client which was a former client of the plaintiff to breach an undertaking given to the plaintiff in an affidavit filed in court to pay to the plaintiff any money received from her ex-husband in settlement of outstanding bills due to the plaintiff; and

(2) for breach of the defendant's own undertaking to pay such monies to the plaintiff.

4. The defendant denies the plaintiff's claims. The defendant also denies that it has given an undertaking to the plaintiff.

5. Dealing with the question of importance, I am not persuaded that the issues in the action are of such importance that the test is satisfied. In a sense every litigation is important to the parties in the action. There must be something over and above that consideration. I am not persuaded that that consideration has been met.

6. As to complexity, I am not persuaded that the matter is so complex that it ought to remain in the High Court for that reason. The question of whether or not there has been an undertaking is a simple issue. The claim based on knowingly assisting in a breach of trust and knowingly receiving money in a breach of trust is also, in my view, a simple claim. I am not persuaded that complexity has been made out in this case.

7. I am, however, persuaded that the claim in this action essentially is a claim of impropriety against an officer of the High Court in his conduct whilst acting as an officer of the High Court. This is, of course, denied by the defendant but it seems to me that is a sufficient reason for the action to remain in the High Court. I am satisfied that the plaintiff has shown sufficient reason why the action ought to remain in the Court of First Instance. For that reason the appeal is allowed.