XCHRX CHAN KING SHEEN v. K C TSANG & CO., SOLICITORS (a firm) & ANOTHER

HCA 994/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 994 OF 2001

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J U D G M E N T

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1. The defendant used to act for the plaintiff. When that relationship came to an end, she called for the return of her documents. The defendant declined to do so and she issued a writ. By the proceedings, the plaintiff asks for an injunction compelling return of her documents and damages. Following the issue of the writ the plaintiff filed a summons under O.14 rules 1 & 2 RHC seeking an order for return of the documents and an assessment of damages. That is the first matter before me.

2. The defendant filed a summons under O.18 rule 19 and O.41 rule 6 RHC seeking orders that certain paragraphs of the statement of claim and in the plaintiff's affidavit in support of summary judgment be struck out. It also applied under O.17 rule 5 for interpleader relief, which included an application joining the intended defendants in substitution for the defendant. These are the second and third matters before me.

Background

3. The plaintiff is a widow of advanced years. Her husband was called Ng Tai Mun. He died in 1964. They emigrated to the United States shortly after the end of World War II. The plaintiff presently lives on Long Island, New York.

4. The Shun Kwong Investment & Trust Company Limited (SKI) was incorporated in Hong Kong in the 30's by members of the Lee and Ng families. The plaintiff's late husband was a founding shareholder. Since incorporation and to date its principal form of activity has been to invest in real estate. By all accounts it has been well run and its portfolio is valued in the hundreds of millions. The intention of the founding shareholders was to keep the shares 'in the families' and by and large this has been honoured, the shares having been transferred or transmitted on death to family members.

5. When he died the plaintiff's husband owned 576 shares in SKI and the plaintiff 24. She is the executor and sole beneficiary in her husband's estate. Although probate was granted and some steps taken to transmit his shares into her name many years ago, administration lapsed before completion, for reasons unknown.

6. In or about April 2000 a man called Samuel Tak Lee (S T Lee) sought out the plaintiff at her home on Long Island. They had not previously met. He told her that he was a member of the Lee family. He was not, at least not as yet, a shareholder of SKI aside from a prospective interest deriving from his mother's estate. He told her he wanted to acquire a significant block of shares in SKI and expressed the wish to purchase the shares held in her name and in her deceased's husband's name.

7. There followed discussions between them. The plaintiff told him that her husband's shares had not yet been formally registered in her name and there were accrued dividends to which she was entitled, withheld for tax reasons. The upshot was that they signed a document described as a Voting Agreement in which she gave to him first refusal to purchase the shares and, during the term of the option, the right to exercise her voting rights. She also executed in his favour powers of attorney for a threefold purpose; namely, to give him power to exercise her voting rights pursuant to the Voting Agreement, to pursue on behalf of herself and her husband's estate the dividends due but unpaid and to cause the estate's shares to become registered in her name, all free of charge to her. The powers of attorney were expressed to be irrevocable for three years, being the period the Voting Agreement was to run for. S T Lee approached the defendant's principal Tsang Kwok Ching (Mr Tsang) and instructed him to represent the plaintiff in getting registered into her name the estate's shares and to pursue the unpaid dividends. Relying on the powers of attorney Mr Tsang agreed to take those instructions and act on them. He also received from the plaintiff letters of authority directed to SKI confirming the appointment of his firm.

8. The defendant's attempts to comply with the plaintiff's instructions ran into difficulties; there is correspondence alleging unjustifiable obstruction, which I do not need to deal with. But it is indicative of a division in the ranks of the shareholders of SKI. Then a resolution was passed purporting to prevent transfer of shares other than to an immediate family member; it is S T Lee's case that this was to forestall his aim of taking-over SKI.

9. The defendant came to be instructed by three more shareholders called Eng Wah Hing, Eng Wah Poy and Mae Hah Eng Chen (the Eng family). They too all live in the USA. Although the evidence is not specific it seems they, too, had been approached by S T Lee to sell their shares and through him had engaged the defendant to represent their interests. I surmise this because they treated the terms of the resolution as a hostile invasion of their rights to deal with their shares in SKI as they would have wished; in particular to sell them to S T Lee. And Eng Wah Hing, a director, was against his wishes voted off the Board. They instructed the issue of a petition to wind up SKI. Mr Tsang drew the petition as instructed. The Eng family were recorded as the first to third petitioners. Acting on instructions from S T Lee conveyed through his son Christopher Lee, he joined the plaintiff as the fourth petitioner. She signed an affidavit in support dated October 2000 stating as her principal grievance that SKI was being unnecessarily obstructive in registering the estate's shares into her name. She also signed two further powers of attorney which included additional powers authorising S T Lee to act for her to wind up SKI.

10. Notwithstanding the documents she had signed it is the plaintiff's case that she did not give instructions whether to Christopher Lee, S T Lee or the defendant direct to participate in a winding up petition with the Eng family. That of course is a material dispute of fact but is not a matter for these proceedings. When she received word that she was named as fourth petitioner in the petition she took immediate steps. The first was to terminate the defendant's retainer. She instructed her new solicitors Messrs Patrick Chan & Co. (P Chan) to write to the defendant giving notice of this and directing all her documents and those to which she was entitled be sent to them. They wrote accordingly by letter of 20 November. On 24 November she applied ex parte to withdraw from the petition. The remaining petitioners opposed. Counsel representing them (and holding a watching brief for S T Lee) said on instructions an affidavit was forthcoming from the plaintiff that she did not, in fact, after all, intend to withdraw. The matter was adjourned. But that affidavit did not materialise. Instead the plaintiff wrote direct to the presiding judge stating that her true intentions had been misrepresented and she had been misled into signing documents whose contents were not explained to her and she did not understand. The matter was restored.

11. Prior to the hearing the defendant wrote to P Chan on 13 December 2000:

13th December 2000

Messrs Patrick Chan & Co

Solicitors

18th Floor

The China & South Sea Bank Building

22-26 Bonham Strand

Hong Kong

 

Dear Sirs

Re:	19th December 2000, 10:00 am
	The Shun Kwong Investment and Trust Company Limited ("the Company")
	Madam Chan King Sheen

We refer to the above restored hearing.

We are instructed that our client is prepared to consent to Madam Chan King Sheen's withdrawal from the above proceedings ("the said withdrawal") subject to the following conditions: (1)That Madam Chan King Sheen shall pay to Mr Samuel Tak Lee on an indemnity basis all the costs incurred on her behalf, including costs incurred prior to the commencement of the present winding up proceedings, until the date of the Order hereof; and (2)Our client's consent to the said withdrawal shall not in any way prejudice our client's rights against Madam Chan King Sheen under the Powers of Attorney dated 2nd June 2000 and 17th October 2000.

We wish to put on record that the above terms are most generous as your client had misled our client since April 2000 and as a result substantial time and expenses have been incurred. Even as late as 22nd November 2000, she still agreed to proceed with the winding up proceedings.

Kindly take your client's instructions.

Yours faithfully,

K C Tsang & Co."

(emphasis added)

 

12. They wrote again on 18 November:

	"Date18th December 2000
Messrs Patrick Chan & Co.	URGENT
Solicitors	BY FAX & BY POST
18th Floor
The China & South Sea Bank Building
22-26 Bonham Strand
Hong Kong

 

Dear Sirs

Re:	19th December 2000, 10:00am
	The Shun Kwong Investment and Trust Company Limited ("the Company")
	Madam Chan King Sheen

 

We refer to your second letter dated 16th December 2000.

We are now instructed that our clients do not object to Madam Chan's withdrawal from the Petition.

But we shall ask for costs be paid to 1st, 2nd and 3rd Petitioner which are necessitated by Madam Chan's application since 24th November 2000. Even as late as in the last week of November 2000, Madam Chan, through her son Mr James Eng, indicated that she would still continue with the Petition.

The reason why we write to you is to save costs so that the matter can be disposed of by Consent Summons without a hearing.

We wish to put on record that Mr S T Lee's rights against Madam Chan including the costs of the Petition incurred up-to-date for and on behalf of Madam Chan are hereby reserved.

If we do not hear from you before noon to-day, we shall instruct Counsel and your client shall bear additional costs.

Yours faithfully,

K C Tsang & Co."

(emphasis added)

13. The matter proceeded but not on these terms. At the hearing on 19 November leave was granted to the plaintiff to withdraw and she was awarded indemnity costs.

14. P Chan repeated its demand for the plaintiff's documents by letters of 20 December 2000 and 3 January 2001. The defendant declined to respond, beyond forwarding a letter to them from S T Lee which I reproduce below:

	"S T Lee
	House I
	24-28 Mount Austin Road
	Hong Kong
	4 January 2001

 

Messrs K C Tsang & Co
Solicitors
18th Floor Printing House
6 Duddell Street
Central Hong Kong

 

Dear Sirs

Shun Kwong Investment & Trust Company Limited -

Madam Chan Kiu Sheen

Please be informed again that I have no wish for you to release any paper of the captioned to any party without my specific approval or consent.

Please also be informed that litigation is on foot between myself and Madam Chan King Sheen over her breach of agreement with me.

...................

Yours faithfully

S T Lee"

15. The plaintiff instructed new solicitors Pang & Associates (Pang) and the demand for documents was repeated by letter of 20 February 2001.

16. The response, of 27 February, I reproduce below:

"Date 27 Feb. 2001

Messrs Pang & Associates

Unit 2502 Golden Centre

188 Des Voeux Road Central

Hong Kong

Attn: Ms Melissa Pang

 

Dear Sirs

Re:	Chan King Sheen
	The Shun Kwong Investment & Trust Company Limited
	High Court Companies Winding Up No. 958 of 2000

 

We refer to your letter dated 20 February 2001.

We have received a letter dated 23 February 2001 from Jones, Day, Reavis & Pogue, solicitors for Mr S T Lee, also demanding return of the documents relating to Madam Chan and her late husband.

Faced with the competing claims from both parties, we have written to the Law Society for guidance on this matter and shall revert to you when we have received the same.

 

Yours faithfully

K C Tsang & Co"

 

17. The plaintiff then issued her writ and the Order 14 application.

18. The defendant's defence and application for interpleader relief derives from the position they claim to be in as set out in the letter of 27 February. On behalf of S T Lee and, subsequently, the Eng family as prospective defendants Messrs Jones, Day, Reavis & Pogue, the solicitors referred to in the letter just reproduced, gave notice to act. I shall call them hereafter the new defendants. Mr Carolan representing them opposed the Order 14 application and supported the interpleader. Ms Eu SC and Mr Jat represented the plaintiff and defendant respectively.

19. In the application for interpleader relief the defendant has helpfully identified those documents which are held and which came into being during the course of its acting for the plaintiff. It is useful to repeat the list verbatim.

"SCHEDULE

This Schedule sets out the categories of documents held by K C Tsang & Co. which were created by, or came into the possession of, K C Tsang & Co. up to and including 13 December 2000 in connection with the following matters:

(1) Chan King Sheen's interests in certain shares in the Shun Kwong Investment & Trust Compnay Limited ("the Company"), namely 576 shares in the name of Ng Shi Sun and 24 shares in the name of Chan King Sheen; and/or

(2) Chan King Sheen as a Petitioner in the Hong Kong Court Proceedings HCCW No. 958 of 2000 ("the Winding-Up Proceedings"), relating to the winding-up of the Company.

The word "documents" is used in this Schedule in the sense set out in Hong Kong Civil Procedure 2001 at note 24/2/2 (page 376)

Part I

Documents not claimed by K C Tsang & Co., Solicitors

A. Documents relating to the will and probate of Ng Tai Mun and the transfer of Ng Tai Mun's shares in the Company to the name of Chan King Sheen ("the Will & Probate Issues")

1. Copy of will of Ng Tai Mun

2. Certificates and official records and copies thereof relating to the Will & Probate Issues.

3. Correspondence and copy correspondence (including enclosures) from 12 June 2000 to 8 November 2000 relating to the Will & Probate Issues between K C Tsang & Co and the Company.

4. Correspondence and copy correspondence (including enclosures) from 12 June 2000 to 8 November 2000 relating to the Will & Probate Issues between K C Tsang & Co. and (1) Probate Registry, (2) Inland Revenue Department, (3) Peter Mark & Co., (4) S H Leung & Co and (5) US law firms.

5. Correspondence and copy correspondence (including enclosures) from 8 November 2000 to 13 December 2000 between K C Tsang & Co and US law firms relating to the Will & Probate Issues.

6. Invoices from, and records of payment to, various parties in relation to the Will & Probate Issues.

7. Correspondence and copy correspondence (including enclosures) and other documents recording communications between K C Tsang & Co and Samuel Tak Lee (or persons representing Samuel Tak Lee) up to 16 November 2000 relating to the Will & Probate Issues.

8. Other working notes and drafts prepared by K C Tsang & Co on matters arising in relation to the Will & Probate Issues.

 

B. Documents relating to the transmission and registration of Ng Tai Mun's shares in the Company to the name of Chan King Sheen (the "Registration Issues") (in so far as not already comprised in A. above)

9. Copies of two Powers of Attorney executed by Chan King Sheen dated 2 June 2000.

10. Copy of the Voting Agreement between Chan King Sheen and Samuel Tak Lee dated 2 June 2000.

11. Fax copy of written confirmation of instructions to K C Tsang & Co dated 29 July 2000 signed by Chan King Sheen.

12. Correspondence and copy correspondence (including enclosures) between K C Tsang & Co and the Company (or its solicitors) from 12 June 2000 to 26 September 2000 relating to the Registration Issues.

13. Copies of correspondence between Lee Hon Fai and Chan King Sheen.

14. Correspondence and copy correspondence (including enclosures) recording communications between K C Tsnag & Co and Samuel Tak Lee (or persons representing Samuel Tak Lee) up to 16 November 2000 relating to the Registration Issues.

15. Other working notes and drafts prepared by K C Tsang & Co on matters arising in relation to the Registration Issues.

C. Documents relating to Chan King Sheen as a Petitioner in the Winding-Up Proceedings

16. Copies of two Powers of Attorney executed by Chan King Sheen dated 17 October 2000.

17. Correspondence and copy correspondence (including enclosures) between K C Tsang & Co and the Company (or the Company's solicitors) from June 2000 to 11 November 2000 relating to Chan King Sheen as a Petitioner in the proposed and subsequently commenced Winging-Up Proceedings.

18. Correspondence and copy correspondence (including enclosures) between K C Tsang & Co and the Company from 12 November 2000 to 13 December 2000 relating to Chan King Sheen as a Petitioner in the Winding-Up Proceedings.

19. Correspondence and copy correspondence (including enclosures) between K C Tsang & Co and Samuel Tak Lee (or persons representing Samuel Tak Lee) up to 13 December 2000 relating to Chan King Sheen as a Petitioner in the Winging-Up Proceedings.

20. Copies of the evidence of Chan King Sheen as a Petitioner in the Winding-Up Proceedings up to 13 December 2000.

21. Copies of the evidence served by the Respondents in the Winding-Up Proceedings up to 13 December 2000.

22. Petition, pleadings, summonses, notices and orders relating to Chan King Sheen as a Petitioner in the Winding-Up Proceedings.

23. K C Tsang & Co working drafts of the evidence of Chan King Sheen in the Winging-Up Proceedings.

24. K C Tsang & Co working drafts of the petition, pleadings, summonses, notices and orders relating to Chan King Sheen as a Petitioner in the Winding-Up Proceedings.

D. Documents relating to Chan King Sheen's termination of her retainer and claim for the provision of documents by K C Tsang & Co

25. Correspondence and copy correspondence (including enclosures) between K C Tsang & Co and Patrick Chan & Co from 11 November 2000 to 13 December 2000 relating to Chan King Sheen's termination of her retainer and claim for the provision of documents by K C Tsang & Co.

26. Copies of documents filed and served by the parties for the purpose of Chan King Sheen's application to withdraw from the Winding-Up Proceedings.

27. Correspondence and copy correspondence (including enclosures) between K C Tsang & Co and S T Lee (or persons representing Samuel Tak Lee) up to 13 December 2000 relating to Chan King Sheen's termination of her retainer and claim for the provision of documents by K C Tsang & Co.

Part II

Documents claimed by K C Tsang & Co., Solicitors

28. Internal memoranda of K C Tsang & Co except in so far as listed under headings A. to D. above.

29. Timesheets, office journals and accounting records of K C Tsang & Co.

30. Correspondence between K C Tsang & Co and (1) the Law Society of Hong Kong (2) Essar.

31. Documents which are privileged and/or confidential to K C Tsang & Co."

 

The Competing Claims

20. The plaintiff claims the return of her documents and those to which she is entitled from her former solicitor following the termination of its retainer in compliance with clause 5.23 of the Hong Kong Solicitors' Guide to Professional Conduct which states:

"5.23 Lien

On termination a solicitor should, subject to any lien, promptly deliver to the client or his new solicitor all papers and property to which the client is entitled or hold them to his order and account for all funds of the client then held by the solicitor. See Circular 93-313."

21. There being no claim to any lien, Miss Eu says this is a simple case; the defendant has no right not to comply with her demand. But Miss Eu does not seek an order for the documents in part II of the defendant's list. Without making concessions as to the defendant's right to withhold these, she recognises there is an arguable defence in that respect.

22. She opposes the defendant's application for interpleader because her Order 14 application renders such proceedings otiose. Miss Eu submitted additional grounds to oppose; there is collusion within the legal meaning of the term as between the defendant and S T Lee; that in continuing to act for the Eng family in the petition the defendant cannot be a neutral stakeholder; that there is no expectation that the defendant will be sued by both rival claimants; that S T Lee has no valid claim to the plaintiff's documents.

23. Apart from claiming entitlement to retain the documents in part II of the list, the defendant adopts a neutral stance, caught between the competing claims of a former client and existing clients, the new defendants. Mr Jat argues that the interpleader relief is tailor-made to resolve the dispute in which the defendant has no stake, personally or professionally. He disputes there is or has ever been collusion; at no stage has the defendant ever been 'playing the same game' as either party. He also submits that the defendant continuing to act for the Eng family does nothing to remove or reduce the defendant's neutrality in the dispute for documents. Accepting that where clients fall out it is proper to stop acting for both, he submits that they have not fallen out except in the contest for documents. The plaintiff does not contest the petition and has not otherwise joined forces against the Eng family; rather, she has walked away from the petition. And he says there is every prospect that were he to ignore the Eng family's counter-demand they would react by suing him; after all they have given notice to join the interpleader and have been represented as potential litigants.

24. Which brings me to their case.

25. Mr Carolan submits that this is not a simple case of a solicitor ceasing to act for a single client and being required to deliver up her documents. He argues on behalf of the new defendants that the defendant was briefed to represent the plaintiff and his clients together about matters in dispute between themselves as minority shareholders (S T Lee as a prospective shareholder) and those opposed to S T Lee's proposals to buy into the company. It was on their joint instructions that after advice the petition to wind up SKI was pursued. For whatever reason the plaintiff chose to withdraw not as a sole participant but as part of their group. The Eng family are pressing ahead with the petition. Thus the release of the documents claimed to be hers relating to the petition would disregard the joint instruction, common interest and potential breach of solicitor-client confidentiality and privilege the new defendants are entitled to. Moreover whilst it is said that the plaintiff has not joined forces against them, yet the solicitors who now represent her happen to act for those opposing the petition.

26. For these reasons Mr Carolan submits there is no other way to resolve the impasse except in interpleader proceedings and he supports the defendant's application, the dismissal of the Order 14 summons and staying of the action between plaintiff and defendant.

The Application to strike out

27. The offending paragraphs in the statement of claim are as follows:

"5. On or about 16 October 2000, the Defendant wrongly in breach of its aforesaid duties, presented a winding-up petition against the Company, viz., HCCW No. 958 of 2000 ("the Petition), inter alia, for and on behalf of the Plaintiff, without the Plaintiff's consent, knowledge, authority and approval.

10. By reasons of the matters aforesaid, the Plaintiff suffered loss and damage the particulars of which should be supplied after discoveries and interrogatories against the Defendant.

12. The Plaintiff is also entitled to and claims interest under section 48 of the High Court Ordinance Cap.4 at such rate and for such period as this Honourable thinks fit."

28. Those in the plaintiff's affidavit go towards the matters raised in the statement of claim which are objected to.

29. Mr Jat argues the claim in paragraph 5 is hotly disputed and is in any event irrelevant; the defendant is not being sued for breach of the duty referred to therein; the claim is vexatious. The other paragraphs are opposed because the defendant will be unable to establish loss even if she were to succeed in the claim because under the Voting Agreement S T Lee had agreed to meet all her costs and has done so.

30. Miss Eu opposes the striking out. Paragraph 5 goes to historical background, and it may well be that the plaintiff will show loss that she is entitled to recover.

31. The parties adopt the same arguments in respect of the paragraphs objected to in the plaintiff's affidavits.

The Order 14 Summary Judgment Application

32. It is clear from the undisputed evidence in the history as recorded that this all came about because of S T Lee's aspirations to acquire an interest in SKI. He could not buy the plaintiff's until her house was in order; namely the transmission of her husband's estate's shares to her and the clearing up of the dividend matter. That is why he introduced her to his solicitor Mr Tsang of the defendant so that he could have all this carried out, free of charge to her.

33. No doubt the Eng family came to be represented by the defendant because like the plaintiff they had expressed a willingness to sell their shares to S T Lee. So it was that the defendant at all material times acting for S T Lee came to act for the plaintiff and Eng family because they held shares in SKI S T Lee wanted to buy.

34. It is in material dispute as to whether the plaintiff instructed her participation in the winding up petition which is clearly a tactical exercise mounted because of the opposition to S T Lee's take-over bid.

35. What is apparent from the petition is that the plaintiff's complaint of unfair and prejudicial conduct relates only to her; namely the alleged difficulties in getting her husband's estate's shares transmitted into her name.

36. Against that historical background I now turn to consider the O.14 summons.

37. For all that the defendant was acting for S T Lee and the Eng family as well as the plaintiff the firm was solely representing her when it came to dealing with SKI and the registration of the shares. Of course it makes no difference that the instructions came from S T Lee and that he was picking up the bill and that the plaintiff had never met Mr Tsang.

38. The position is less clear-cut when it comes to the issue of the petition; for it was a petition presented by the Eng family and the plaintiff as the four named petitioners. But in so far as the defendant's instructions from the plaintiff were to get her husband's estate's shares registered into her name and the petition addressed that grievance as her's alone, I am satisfied that it was in the course of representing her alone that he acted on instructions (whether actually given or not is not at issue) to join her as a petitioner. Putting it another way she joined the vehicle, tactically introduced to force SKI's hand, rather than that she was a member of a group, acting as one, which gave joint instructions to this end.

39. In my view the defendant's obligation when he received the request to deliver up the plaintiff's documents and those to which she was entitled was clear and incontrovertible - he had to comply.

40. It was wrong to do what was done and that was seek S T Lee's instructions. As holder of the plaintiff's powers of attorney and payer of her bills he was certainly a presence in the operation. He may well have been calling the shots on tactical steps. But boiling it all down to essential detail he was not a principal but the plaintiff's agent.

41. The following passage from Bowstead and Reynolds on Agency 16th edition at 6.091 is so obvious that it hardly warrants spelling out:

"The principal is entitled to have delivered up to him at the termination of the agency all documents concerning his affairs which have been prepared by the agent for him."

42. The defendant did not see it that way as is shown in its letter of 13 December 2000, where reference is made to 'our client's instructions being clearly the instructions of S T Lee. But it already had instructions from S T Lee's principal, the plaintiff. It is her instructions it was bound to follow. As Ms Eu argued, an agent cannot claim a superior right to documents of the principal.

43. Similarly, S T Lee did not have the status to direct whether or not any documents should be released as set out in his letter of 4 January 2001. The defendant by treating him as a co-client in a common interest venture fell into error.

44. I turn now to consider the list of documents in the defendant's schedule. It follows from the above that I am disposed to grant the plaintiff her O.14 relief as to the part I documents. Before I do so however, I bear in mind that notwithstanding my ruling that, on the facts, the defendant represented the plaintiff solely on the instructions which led to her being a petitioner in the winding up petition there might be amongst her documents certain information the release of which might breach the new defendants' rights of confidentiality and privilege. However, having reviewed the list (which was prepared not by the plaintiff but by the defendant) I see nothing which on the face of it would prejudice the rights of the new defendants or anyone else if they were to be released to the rightful owner, the plaintiff.

45. In respect of the claim by the plaintiff for the documents categorised part I in the defendant's schedule there is no defence. In respect of them the mandatory injunction prayed for in the Order 14 summons is hereby granted. In respect of the part II documents there is a defence and I order an unconditional right to defend.

46. Damages are to be assessed.

47. Costs (nisi at first instance) are to the plaintiff taxed if not agreed.

The Interpleader Relief

48. The O.17 rule 5 summons is dismissed. Costs (nisi at first instance) are to the plaintiff taxed if not agreed.

The Striking out Summons

49. The plaintiff whilst complaining of a serious breach of professional duty on the part of the defendant does not seek a remedy for that breach. As was stated by Kay J in the English case of Brocking v Maudslay [1886] 55 LT 343, at p. 343:

"May a man in his pleadings say 'the defendant has acted like a rogue, but I ask no relief on that ground?' that would be an unnecessary statement and scandalous of cause, because it will affect the character of the defendant."

50. It seems to me that paragraph 5 of the statement of claim falls into that category and should be struck out and I so order. The other paragraphs going to the plaintiff's claim to recover loss remain apposite and shall remain.

51. The paragraphs in her affidavits go to her account of events overall and shall also remain.

52. There shall be no order for costs (nisi at first instance).