MIMI KAR KEE WONG HUNG v. SEVERN VILLA LTD AND OTHERS

HCMP 243/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 243 OF 2011

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HCMP 522/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 522 OF 2011

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R U L I N G

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Introduction

1.  I will refer to the corporate parties by their initials and the individual parties by name.  By the originating summons in HCMP552 of 2011, ADHL and SVL seek a possession order directed to Miss Wong to remove her from her residence at 3 Severn Road.  The basis for such an order is that once Miss Wong had been removed from her position as an executive director of ADHL, a family-controlled public company, and downgraded to a non-executive directorship, her right to reside at Severn Road terminated.  Once that step was taken by ADHL and SVL, Miss Wong issued her own originating summons in HCMP243 of 2011, by which she seeks a declaration that she is the beneficial owner of Severn Road under a constructive or resulting trust, notwithstanding that the legal title to the property is in the name of SVL, it being a wholly‑owned subsidiary of ADHL.

2.  All this against the background of bitterly fought ancillary relief proceedings consequent upon Miss Wong’s and Mr Hung’s divorce, about which they had taken advice over a decade ago, resulting in a deed of divorce in 2001. Notwithstanding that deed, final resolution of their respective financial shares in the matrimonial estate has yet to be determined.

3.  In order to make any sense of what it is that I have to rule on, it will be helpful if I were to provide a brief chronology of the litigation so far. 

4.  Originally, Miss Wong’s summons for the declarations as to the beneficial ownership of Severn Road, and ADHL and SVL’s summons to remove her from there, were set down for two days on 8 and 9 June this year.  Those dates had been provided on the basis of counsel’s estimate that the summonses raised short points of law based on largely uncontested facts upon which no live evidence was required.  On 11 May Miss Wong filed her third affirmation, and Mr Glynn, her solicitor, also filed an affidavit.  The contents of both, which challenged the whole basis of ADHL and SVL’s claim for possession, meant that the case could not proceed on those two dates in June.  There would need to be cross‑examination. The whole shape of the two originating summonses needed to be recast.

5.  Taking it as shortly as I can, I consolidated the two originating summonses, and, given the extent and nature of the factual disputes, I directed that the parties should plead out their cases in the conventional way as if the proceedings had been started by writ.  What I also did, following the English case of TL v ML [2006] 1 FLR 1263, in circumstances where there was an issue between Miss Wong and Mr Hung as husband and wife as to the ownership of property by a third party - in this case whether the beneficial owner of Severn Road was ADHL/SVL or Miss Wong - I also consolidated their divorce proceedings with these two now consolidated originating summonses.  I also joined Mr Hung as a party to the Severn Road originating summonses.

6.  By way of case management, and this was agreed, and follows the TL v ML procedure, I directed that the originating summonses should be heard and determined first.  Severn Road is a property worth well in excess of $200 million.  The outcome of who is the beneficial owner of it will have a very important impact on the outcome of the ancillary relief application, especially if I decide that its beneficial owner is Miss Wong.

7.  Dates were provided by the court for this hearing, no easy task given the fact that there are three busy leading counsel appearing, the crowded state of the lists, and the very small panel of judges hearing matrimonial causes in the High Court.

8.  The hearing dates were 6 and 7 October and 17 October to 3 November, after which I would hand down judgment, and thereafter hear the ancillary relief application with tentative dates fixed in March, which is after the date of my retirement from the Bench, I having indicated that I would still be in Hong Kong and available to sit, more of which presently.  By agreement, 6 October was used as a pre-trial review, and the trial put over to last Monday, 17 October.

9.  Since those directions were given, the case has grown so as to become unrecognisable from what had been expected in, I think, March this year, when those two days in June were provided for the hearing of the originating summonses.

10.  I have not done a precise count, but I am told that I have been provided with 63 lever arch files comprising pleadings, affirmations and documents, mostly accounts, company reports and the like.  There are 45 lever arch files with a “D” prefix which run to 12, 161 pages, although some of these are reproduced in the “B” prefix bundles, which total 3,346 pages.

11.  Since June the parties have sought to comply with their discovery obligations directed to the issues which divide them.  Put simply, Miss Wong says that she is the beneficial owner of Severn Road because, going as far back as 1989, her brother, a then building contractor in Los Angeles, told her of a building plot at Santa Monica, California, which could be developed into four townhouses.  Her case is that she put down a deposit of US$25,000, using her own personal cheques, and that the balance of the purchase price of US$825,000 was paid by her by means of loans advanced to her by ADHL or one of its subsidiaries.  She was identified as the purchaser in the closing statement dated 5 December 1989, and, just to underline the point, Mr Hung signed a Quitclaim Deed confirming that the Santa Monica property was her’s alone.  In the early 1990s four townhouses were built on the plot.  She says this was done by further loans advanced to her by ADHL or one of its subsidiaries.

12.  In 2001 the four houses, having been completed and, at first, rented out, were sold at a profit, and, on her case, a substantial part if not all of the proceeds of sale, having been channelled back into the ADHL group, were used to purchase Severn Road.  This is to describe the dispute at its simplest, which is all that is necessary for present purposes.

13.  For their part, ADHL/SVL’s cases, and factually they are supported by Mr Hung, are that all the purchase and construction funds for Santa Monica were provided by the ADHL Group, and when the properties were sold, the proceeds came back into the group.  Severn Road was purchased as an investment by ADHL through SVL.  The purchase was financed by a combination of cash provided by the group and a substantial balance raised on mortgage.  There never was any loan to Miss Wong.

14.  Although the Santa Monica property may have been purchased through her, this was done by her for the ADHL group of companies which she and Mr Hung controlled and were directors of.

15.  The purchase of Severn Road was a quite separate investment by the ADHL group, and eventually a part of this property, which comprises four flats, was provided to her as a residence as part of her benefits as an executive director of ADHL.

16.  One can see therefore how diametrically opposed the parties’ cases are.

The discovery dispute

17.  Since these October dates were provided, there has been an ongoing and, on the correspondence and in the affirmations, at times ill-tempered dispute.  Miss Wong has not been in a position to make very much discovery, and I do not think it is being said that she is hiding documents.  If anything, reliance will be placed on the fact that she has simply come nowhere near to proving her case on the documentary evidence comprising her own discovery nor on the Defendants’ voluminous disclosure.

18.  Overwhelmingly, the discovery has come from ADHL and SVL.  Their case is that the documents serve to prove that there never were any loans by the group to Miss Wong.  Had there been, these would have had to be recorded as such in the accounts and in the board minutes of the companies concerned.  Miss Wong, as chairman for some years and also director for all the relevant years, either signed off on such accounts or was present at board meetings when such matters would need to have been discussed.  Nothing of this sort is there.  Going the other way, once Santa Monica was sold, and subsequently when Severn Road was purchased, there is no reference whatsoever to Miss Wong having any interest, equitable or otherwise, in this property. Again, she signed off on the position as it is on paper, that the legal and beneficial title of Severn Road lies with SVL, the company in whose name the purchase was taken.  It is only now, after possession proceedings were started against her, that she has raised the spectre of Severn Road being held on trust for her by the owner of the legal title.

19.  And so that is how the battle lines are drawn.

20.  Now, whilst ADHL/SVL have provided very substantial disclosure in terms of paper - most of the over 15,000 pages in the “B” and “D” bundles - many have redactions.  They are redacted because those advising ADHL and SVL have decided that the redacted entries are not relevant to the issues that need to be tried, and their Miss Tess Ng has gone on affirmation to say so.  She is the group company secretary and financial controller.

21.  As late as 23 September I heard an application made by Miss Wong for more discovery.  On 30 September I handed down a ruling ordering a limited amount of further disclosure compared to what was being asked for, and one of the matters that in a moment I will rule on is an application for leave to appeal against that ruling, together with a separate and much more extensive summons for discovery by Miss Wong.

22.  The other matter as to disclosure is that the 45 “D” bundles only arrived about two weeks before the scheduled start of the trial.

23.  And so it is against this background that I now need to rule on one summons by ADHL dated 12 October to add APL, one of the ADHL group of companies, as 4th Defendant to the action and as Plaintiff to the counterclaim; very late, one might think, to start adding a party.  But Mr Bleach SC for ADHL/SVL submits that when one considers the terms of the amendments and the consequences of adding APL, the Plaintiff will have no legitimate cause to complain.  That this did not happen sooner is because of an oversight by Mr Bleach, which he frankly accepts.

24.  Next there is Mr Barlow SC’s summons taken out by the Plaintiff and dated 14 October and served after 4 pm on the Friday before the scheduled start of the trial on the Monday, 17 October.  By that summons he seeks to have excluded the entirety of Miss Tess Ng’s third and fourth affirmations dated 23 and 28 September because these amount to expert accounting evidence for which no leave has been given; or alternatively for leave for the Plaintiff to call an accounting expert of her own.  Mr John Lees, an experienced forensic accountant, has already been retained.

25.  I have previously referred to Mr Barlow’s summons for leave to appeal against my discovery ruling of 30 September, which is dated 13 October, and his now even more substantial discovery summons dated 19 October 2011; in other words, taken out on the third day of the trial.

26.  What has now happened is that the first week of the trial has been used to hear at times heated argument on last-minute interlocutory applications.

27.  For his part, Mr Barlow says that without disclosure of the redacted documents, his client will be put in a quite impossible position to mount her case properly, and that she will be deprived of a fair trial.

28.  Whatever the rights and wrongs of this, the parties have now also run up against real practical problems so far as time that is available to hear out this matter to its conclusion.  Mr Bleach and Mr Yu SC, for Mr Hung, say that these late summonses on the eve of and on the third day of the trial are a cynical ploy, this is what it comes to, by those advising Miss Wong, to cause the trial to be derailed and have to be adjourned.  If that happens, it is unlikely to appear in the list for another nine or 12 months, and Miss Wong will continue to retain possession of Severn Road.  This is compounded by my own personal position, given my retirement from the Bench at the end of January next year.  As it is, the remaining scheduled dates will simply not be sufficient to hear out this case.  I am able to provide a further 10 days in the first half of December. Beyond that I am simply not able to go.  My own personal workload has been and will be in the next few weeks such that I already have, and will have, a number of very substantial judgments to prepare and hand down.  This work will need to be completed by 26 January next year.  The interests of the parties in my other cases who require a judgment from me must be brought to bear in my overall appraisal of the situation as it has now become.  I need to address the due administration of justice overall, and in doing so have proper regard to the interests of the litigants in this case as I must to the interests of the parties in the other cases to which I have just referred.

29.  I will return to this aspect after I have ruled on the summonses which are now before me.

The 1st and 2nd Defendants’ summonses to amend and add a party

30.  The application is to join APL, a wholly-owned subsidiary of ADHL.  The case as pleaded by ADHL/SVL is that APL, through intercompany loans from other ADHL companies, provided all the purchase and building costs for the Santa Monica property.  Additionally, Miss Wong executed two declarations of trust in favour of APL in respect of Santa Monica.  In the event that Miss Wong were to show that the loans to her had been provided as she says, these would have been prohibited by section 157H(2)(a) of the Companies Ordinance, being prohibited loans from a company to Miss Wong as one of its directors.  The conclusion that is sought to be drawn from this is that even if Miss Wong were to prove that Santa Monica was purchased using these loans and the proceeds of sale went to purchase Severn Road, she is unable to succeed on her claim because she would be liable under section 157I of the ordinance to account to APL or ADHL for any gains made from the Santa Monica loans.

31.  To these averments Miss Wong has responded in her reply.  Suffice it to say that the matters have been fully put in issue.  (See bundle C113-131.)  The reply pleads an analysis of the various parts of section 157.  Paragraph 11(2) - that is at bundle C119 - avers that any breach of section 157H(2)(a) would not have invalidated the Santa Monica loans by virtue of the effect of section 157I(5).  Secondly, as the loans have now been repaid in full, no issue can arise in these proceedings as to their enforceability - this is paragraph 11(4) of the reply, bundle C119. Thirdly, if the loans contravene section 157H(2)(a), then Mr Hung and APL would also be criminally liable.  Consequently, neither would have a right of action against the Plaintiff, paragraph 11(5)(d) - which is at bundle C, page 120.  And lastly, that the making of the loans did not constitute a breach of fiduciary duty by APL or any of its directions - that is in paragraph 12(1) at bundle C, page 120.

32.  Mr Bleach submits that when one considers the present state of the defence and of the reply, the joinder of APL becomes a logical and formal, albeit essential, step because if the loans did in fact exist, Miss Wong would be liable to account for them to APL because APL provided them.  If these loans are to be repaid, then they can only be repaid to APL.  Hence the necessity to add it as a party.

33.  The addition of APL would not require any further consequential amendment to Miss Wong’s pleadings.  The reply which deals with the APL issues is complete.  If APL is not added and the case is ultimately decided on the basis that the loans were made, then APL would have to start a separate action.  The purpose of adding APL is to avoid that consequence.  The power to add a party is provided for in Rules of the High Court 15 rule 6(2)(b).  Mr Bleach draws attention to the fact that the court has the power to add a party at any stage of the proceedings and, as the note to the rule makes clear, this is a power to be exercised liberally.  In this regard he has drawn attention to the note at paragraph 15/6/1, page 285 of Hong Kong Civil Procedure 2011:

“...these are all provisions designed to save rather than to destroy, to cure that which is capable of cure...”

And then further on:

“This rule prevents an action being defeated by the misjoinder or nonjoinder of parties, and it provides for any necessary amendment in respect of the parties to an action being made at any stage of the proceedings...This rule should be construed so as to bring all parties to disputes relating to one subject matter before the court at the same time so that the disputes may be determined without the delay, inconvenience and expense of separate actions and trials. Under it the court has power to secure the determination of all disputes relating to the same subject matter, without delay and the expense of separate actions.”

34.  What the submission comes to is that nothing needs to be done to the pleadings, nor to the parties’ evidence, if the joinder is permitted, so that even if it is a very late application, as this is, in the absence of any forensic prejudice it ought to be allowed.

35.  There is also an application to amend the defence and counterclaim which relates to the joinder of APL.  The proposed amendments are to add to paragraph 12(f) - that is in the Hearing Bundle, page 10 - and to add a new paragraph 19A to the defence - Hearing Bundle, page 13 - a new paragraph 21(c) - Hearing Bundle, page 14 - and to add a new paragraph 57A - Hearing Bundle, page 36.

36.  These amendments, explains Mr Bleach, simply plead that if the loans existed, they would have been in breach of both Miss Wong’s and Mr Hung’s fiduciary duties.  They argue for a conclusion that is already factually present on the existing pleadings and fully dealt with by Miss Wong in her reply.

37.  There is a second amendment to paragraph 48(a) - that is in the Hearing Bundle, page 30 - and to paragraph 54(b) - Hearing Bundle, page 35, both of which aver a criminal liability on Miss Wong by virtue of section 384 Securities and Futures Ordinance.

38.  Mr Barlow’s response, perfectly understandably, is that it is now much too late to start adding a 4th Defendant and a Plaintiff to the counterclaim and to suggest breaches of fiduciary duty and criminal liability.  These are serious allegations which need proper time for reflection and response, and it is much too late to be burdening the Plaintiff with these now.  If I allow the amendments and/or the joinder, I will need to give the Plaintiff an adjournment.

39.  This sufficiently, I think, lays out the arguments, and I will leave over the fate of this summons to after I have dealt with Miss Wong’s summonses, and I come to the first of these.

The summons to rule inadmissible Tess Ng III and IV, failing which, to allow her to call her own expert

40.  This is very late, on the Friday afternoon before the Monday start of the trial. Mr Bleach has not said so expressly, but if I rule out Tess Ng III and particularly IV, he may want to consider his position as to expert evidence of his own, but I sense that he would probably wish to press on regardless.  If this situation arises, I will give him an opportunity to address me.

41.  I go to Tess Ng IV first.  Mr Barlow’s starting point is that this lady is a qualified chartered accountant, which is the only flattering thing that he can bring himself to say about her.  He says that when one looks at both of these affirmations, what this lady is doing is, in a very tendentious way, by looking at the accounting documents that her employers and Mr Hung, who controls them, are relying on, and then provide biased, and this is the point, expert accountancy opinion evidence.  Firstly, says Mr Barlow, she is not an expert for the purposes of this case, no leave having been given for such evidence, and in any event she is biased.

42.  I have read and re-read this evidence, as I have the documents to which she has referred.  The argument has taken two days.  I do not propose to go through each and every paragraph, which is virtually what counsel have done in the course of the two-day argument on the summons.

43.  Mr Bleach has conceded that some passages will need to be struck out or at least ignored because they amount to comment or seek to draw conclusions which fall exclusively within my remit. Save for those paragraphs, Mr Bleach submits that a fair reading of Tess Ng IV shows that all she is seeking to do is to identify the relevant document - relevant to the issue, that is - and indicate what each document shows.  She is merely adding a voice, as it were, to the document.  As such, she is a guide to the documentation without which I would be left to my own devices, albeit with counsel’s considerable assistance, to work my way potentially through thousands of pages of documents.

44.  I am entirely satisfied that Mr Bleach has correctly described the purpose of Ng III and IV.  It is no more than that.  As a guide, which of course I do not have to follow, ultimately the effect of each and every document is for me.  I expect to find her evidence helpful.  I expect to find her evidence useful.  It is not opinion expert evidence.  This evidence is factual, a page-turner through the numerous pages that are referred to, identifying each, and as a helpful aid when and if the time comes for a judgment to be prepared by me or by some other judge.

45.  The identical comments apply to Ng III. I decline to rule them inadmissible.

46.  I now turn to the question of whether I should adjourn the trial to allow Mr Barlow to call an expert to counter Miss Ng’s evidence and provide an explanation of what is happening here on the accounting documents.  Mr John Lees has alreadybeen approached for this purpose.

47.  Much of Mr Barlow’s application is concerned with the fact that because there have been so many redactions, the advice that he has received thus far from Mr Lees is that it simply is not possible to form any reliable view of the accounts and their supporting documents.  Whilst this goes more to Mr Barlow’s discovery summons and the question of whether the redactions should go, it is also relied on at this stage.

48.  I have come to the conclusion that expert accounting evidence of the type proposed by Mr Barlow - and I have to say that at this stage I do not have even a synopsis of what Mr Barlow was wishing to call evidence on, although this morning I have received what might amount to that in the form of a report which is exhibited to the seventh affirmation of Miss Sum - this is not that kind of case.  Most of the documents speak for themselves, and I expect that Miss Ng’s now edited affirmations will provide a useful guide as she produces from her custody her employer’s documents.  In the circumstances, I therefore propose to dismiss this summons.  From that I now turn to the discovery summons dated 19 October.

The Discovery Summons

49.  Mr Barlow helpfully makes clear that if he succeeds on this, that he will not be pressing his summons for leave to appeal, because this summons subsumes what he would hope to achieve on any appeal.  What is also clear is that success on this summons by Mr Barlow will result in an adjournment, as would have been the case had I allowed him to call an expert.

50.  This summons represents an extremely far-reaching venture into disclosure.  It is supported by Mr Barlow’s skeleton of 21 October, all at the last possible moment, but Mr Barlow explains that this has largely been caused by the late arrival of the “D” bundles and Tess Ng IV, which he characterises as the presentation of a new evidentiary case.  It is, of course, true that this evidence has come recently in the piece, but I think a point can fairly be made that a case of this substance, which only started in terms of the originating summonses early this year, has received a very early listing for trial because, with my assistance, the parties have been able to bypass the usual listing process and have been able to find space in my diary directly.  A consequence of getting an earlier listing than would usually be the case for substantial litigation of this sort is that the parties have had less time to get up their cases in readiness for trial.

51.  Returning to the summons, it is worth reciting here its material parts.  Firstly, it seeks a further and better list disclosing all accounting records, including all journal vouchers, journal entries, ledgers and trial balances of ADHL and of its subsidiaries where accounting records are addressed in Tess Ng III and IV for the periods 1 January 2000 until 30 June 2006.  Secondly, unredacted copies of all accounting documents that have been exhibited in affirmations served on behalf of ADHL; and lastly, an affidavit or affirmation to verify the list.

52.  Full compliance, with the inevitable request for inspection of these documents, would greatly increase the thousands of pages of documentation that is already available.

53.  Mr Barlow has prepared a skeleton argument in support of the summons.  He submits that there can be no issue about ADHL’s possession of what is requested.  What he submits is that it would be contrary to all notions of fairness to allow the company to cherry‑pick its accounting records and prevent the Plaintiff and the court from investigating, challenging or verifying the correctness of the evidence by withholding disclosure of its remaining records on Tess Ng’s say‑so, by affirmation, that the undisclosed records and redacted records are not relevant.  He says, rather dramatically, that it would subject the Plaintiff to a “Kafkaesque” trial process which would allow her opponents to disclose only what they wish to disclose and to hide from view what may damage their case and what may help her case.

54.  In terms of quantity, the second limb of the summons for the blanked-out parts of the disclosed documents to be removed will initially be a less onerous and time-consuming task for ADHL.  This of course will almost certainly lead the Plaintiff to say that a trail leading to further documents has been revealed so that, I predict, more disclosure will be sought.

55.  Mr Barlow submits that while a party is generally entitled to cover up parts of a disclosed document on the ground of irrelevance, as in this case, it is not entitled to do so if such covering up would destroy the sense of the document or make it misleading, and in support of that he cites GE Capital Corporate Financing Group Limited v Bankers Trust Company and Others [1995] 1 WLR 172.

56.  Both Mr Bleach and Mr Yu SC have asked me to concentrate on the real issues in this case, which is whether the ADHL Group had advanced loans to Miss Wong so that she might purchase Santa Monica, and thereafter, whether the proceeds of sale of those four townhouses were funnelled into the purchase of Severn Road.  What this case is not about is to permit Miss Wong to look at all the accounting records of ADHL from 2000 to 2006 just in case something turns up, or to seek to embarrass Mr Hung in how he has, all these years, operated the ADHL group as his private fiefdom, perhaps in breach of any number of the regulatory authorities’ rules and regulations.

57.  Mr Bleach submits that although Miss Ng’s affirmations cannot be used to say that what has not been disclosed is not relevant, there is this important feature that I am able to and should take into account which is that these accounts - that is to say 2000 to 2006 - have been subjected to audit and received a pass mark.  The fact is that had there been any document which indicated the existence of any loans from the ADHL Group to Miss Wong, or if the purchase of Severn Road was in some way subject to any interest in favour of Miss Wong, this would have been noted in the audit reports, added to which Miss Wong, as chairman and executive director all these years, has been prepared to sign all the accounts, minutes and reports, none of which mention any loans to purchase and build on the Santa Monica site or to grant her an interest in Severn Road.

58.  In response to this, Mr Barlow says this cannot provide any safeguard or assurance for the Plaintiff or the court.  One has only to attend to the recent sale of AEL, the treasury company, to become suspicious of the reasons, consideration and timing of this sale.  The evasiveness of the current company secretary in answer to its subpoena only adds to the suspicion that the sale of this company was done to “bury discovery”.

59.  For my part, I am satisfied that the already substantial level of disclosure is more than sufficient to ensure a fair trial of the issues.  To go beyond this would amount to permission for a wholesale investigation of ADHL’s affairs, as I have said, in case something turns up, leading to further demands for yet more disclosure, and hopefully to embarrass Mr Hung and the ADHL Group.  This I am not inclined to permit.  The summons must stand dismissed. 

The summons for leave to appeal the ruling on discovery dated 30 September

60.  The test is whether the Plaintiff is able to show that any appeal will have a reasonable prospect of success.  I have considered the grounds of appeal as they relate to the reasons for my ruling.  Whilst any judge whose ruling is said to be wrong must retain complete objectivity in his assessment of such an application, I am persuaded by Mr Bleach’s analysis that no such reasonable prospects of success exist on this occasion, with the consequence that I propose to refuse leave to appeal. 

Where to from here?

61.  What I am about to say is entirely concerned with the future conduct and management of the case.  Save for Mr Bleach’s summons to amend, upon which I will shortly indicate my decision, I have dismissed all the orders asked for on behalf of Miss Wong, all of which, save for the application for leave to appeal, were capable of forcing an adjournment.

62.  The whole of the scheduled first week of the trial has been taken up with interlocutory skirmishing.  The earliest that the trial can resume is tomorrow.  Everyone is agreed that it cannot be completed in its allotted time.  I have looked up my own diary, and I am able to offer the parties the first 10 working days in December.  It was during, I think it was either on Monday or Wednesday, when Mr Bleach and Mr Yu were having to field Mr Barlow’s summonses which might have obliged me to adjourn the trial if he were to succeed on some aspects of what he was asking for, that I was told by Mr Bleach and Mr Yu that someone - I presume this was directed to me - should take hold of the case and get it tried as soon as possible.  These were perfectly understandable comments from the Defendants’ side of the Bar, but where Mr Barlow had taken out summonses that required determination, these had to be heard.  Even Mr Bleach’s summons occupied the whole of the first day.  I have already observed that this case is unrecognisable from the one that had originally been set down for two days in June.

63.  Where we now are is that this case, in my judgment, has very little chance of finishing, even with the provision of a further 10 working days in December.  I did suggest that I might apply a guillotine on counsel as to the length of their examination and cross-examination of the witnesses and of their speeches.  The power to do so is well recognised.  Nevertheless, the court is not only charged with the task of finishing a case as soon as is reasonably possible, it is also charged with the equally important duty of providing a trial that is fair to everybody. Having seen the documentation in this case, I can foresee that Mr Barlow will wish to conduct a very vigorous cross-examination of Mr Hung, of ADHL and SVL’s witnesses, and I can also foresee that a substantial amount of time will be taken up by Mr Bleach and Mr Yu repeatedly objecting to the relevance of questions from Mr Barlow, particularly if I attempt to apply a guillotine.  Both of them would, understandably, wish to have equal air time.

64.  I very much doubt that even a truncated trial starting tomorrow and also listed in early December would be completed by then.  Mr Bleach has already indicated that he and Mr Barlow will not be available for two of those days in December.  Mr Yu has suggested that dates should be provided and imposed without any reference to counsel’s availability.  Admirable as that suggestion is, I do not think it would be fair on the parties to find that for parts of the hearing in December they would be represented only by their junior counsel.

65.  Mr Yu and Mr Bleach have expressed their anxiety about the consequences of a wholesale adjournment of the case on the ADHL group. Severn Road represents over 46 per cent of its assets.  As things stand, I am told delay may result in ADHL being de‑listed, although that prospect has not been explored in any great detail.

66.  I could direct that we go on and hope for the best.  If we do not finish after the December dates, then there is simply no way for me to complete this case before 26 January next.  I have already indicated how I view my obligations to other litigants who await judgments from me in substantial cases, and two further very big cases which are as yet to finish, but will finish in November and late December.  I need to balance my weighty obligations to the parties now before me and the serious consequences of an adjournment to some dates next year before another judge with my duties to ensure the delivery of judgment in my other cases before I retire.

67.  I have little time to complete what I need to do if this case did not finish in December and to resume, for instance, in January.  I have no idea if counsel are available in January, but even if they were, I could not realistically complete all of my tasks by 26 January.

68.  And so, in circumstances where I am confident on what I have seen so far that we would not finish even after further dates are provided in December, that this matter will have to be adjourned and tried as soon as another judge becomes available to hear it, with a 20-day estimate and a further five days reserved, because this, in my judgment, is how long it will take.

69.  This comes as no consolation to the Defendants, but I have taken this course reluctantly, and following anxious consideration.  I have even considered just getting on with it and seeing what happens.  If we did not finish by the end of the allocated dates in December, I would feel constrained to discharge myself for want of sufficient time to complete all of my other judicial duties before 26 January.  That would result in many days’ costs being wasted.  I do not think that that would be a sensible way of proceeding.

70.  I will give further directions as to the conduct of this case and the ancillary relief application as soon as counsel have had sufficient time to consider all the implications of this ruling.

71.  Finally, I turn to Mr Bleach’s summons for joinder and amendment.  Had I not adjourned the case, I would not have allowed amendments to be made save for what would be necessary for the joinder of APL.  But now that this case is being adjourned, I will allow both the joinder and the amendments to be made.  The Plaintiff will have more than sufficient time to deal with the implications of both.  These are matters that should have been attended to earlier, which will no doubt be reflected in costs, but it seems to me that APL is a necessary party, and that the amendments should also be allowed as they represent the logical consequence of what already appears in the pleading.

72.  I will now hear counsel on costs, and any other directions, probably tomorrow, when Mr Yu can also be present.