CHAMPION CONCORD LTD AND ANOTHER v. KAO LEE & YIP (a firm) AND OTHERS

HCA 85/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 85 OF 2012

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D E C I S I O N

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1. I have before me an application by the defendants by summons dated 30 January 2015 seeking leave to issue a writ of subpoena ad testificandum to compel the attendance of a barrister, Ms Liu, to give evidence at the trial of this action, which has been set down for hearing between 6 and 20 July 2015 (for 11 days). The pre-trial review has been fixed to be heard on 9 April 2015.

2. This action concerns what happened in the course of a mediation session held on 9 March 2009 in relation to a property dispute.  The defendants were the plaintiffs’ solicitors in that dispute and Ms Liu was the mediator.  The plaintiffs allege that the defendants were negligent in their handling of the mediation and preparation of the settlement agreement dated 10 March 2009 entered into as a result of the mediation.  The defendants intend to call Ms Liu to give evidence in relation to what happened in the course of the mediation session.  Ms Liu has claimed, however, in a fax to the defendants’ solicitors dated 13 February 2014 that, in view of the lapse of time, she “do[es] not recollect much of the events [which] happened during the Mediation” and thus she is not prepared to provide any witness statement in this matter.

3. The principles applicable for determining whether leave should be granted to issue a subpoena are well settled and confirmed in a recent decision of the Court of Appeal in Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89 which I shall not repeat here.  In essence, I have to conduct a balancing exercise taking into account factors such as the potential disruption to the trial, the prejudice that the other party may suffer, the explanation for the late application, the significance of the new evidence and the overall justice of the matter.

4. The plaintiffs object to the present application on a number of grounds.

5. First, it is said that the application is late.  It was not mentioned at the case management conference or in the listing questionnaire filed by the defendants.  The defendants also previously confirmed that there were no outstanding applications in a letter dated 10 April 2014 to the court.  Mr Lam (for the defendants) accepts that the present application is late.  The explanation given for the delay is that previously the defendants were hoping to be able to settle the present action and thus did not wish to incur the costs of the application.  It is also said that the present application was made pursuant to leading counsel’s advice.  The delay is one factor that I ought to bear in mind but it is not conclusive.

6. Second, there is the issue of potential disruption of the trial.  In so far as the length of the trial is concerned, currently it is anticipated that the plaintiffs will call 1 factual witness and the defendants will call 2 factual witnesses.  As earlier mentioned, a total of 11 days have been reserved for the trial, which seems to me to be very generous having regard to the issues raised on the pleadings and the nature of the evidence intended to be adduced.  The trial dates provided for should be able to accommodate an additional witness without difficulty.  Also, the trial will not come on for another 4 months and there should be ample time for the plaintiffs to do whatever is necessary to deal with the possible evidence that may be given by Ms Liu.

7. Third, there is a suggestion that Ms Liu may apply to set aside the subpoena, but that seems to me to be an unknown factor at this stage.

8. Overall, I do not see much prejudice to the plaintiffs were I to accede to the present application.

9. I am, however, concerned as to whether Ms Liu will be able to give any cogent evidence at the trial in view of what she has said in her fax.  Nevertheless, she may be assisted in her recollection of the events after having sight of, for example, the witness statements.  I do not think I can rule out at this stage the possibility that Ms Liu will be able to give relevant and useful evidence at the trial merely on the strength of what has been said in her fax.

10. I consider that I ought to make an order which will best serve the interests of justice without causing any substantial prejudice to the parties.

11. On balance, I am prepared to accede to the application and I so order.  However, I intend to reserve the costs so that, should Ms Liu turn out not to be able to give any relevant or useful evidence at the trial, an appropriate costs order can be made to reflect that eventuality.