MICHELLE HARRIS v. DENICE YVETTE FOSTER HARRIS

HCAP 32/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 32 OF 2011

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BETWEEN

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D E C I S I O N

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A. Background

1.  The deceased died intestate in February 2002.  The defendant was granted letters of administration on 25 June 2003 on the basis of her assertion of being the surviving lawful widow.

2.  The plaintiff, claiming to be the daughter of the deceased from a previous marriage, alleges in the statement of claim (“SOC”) that the defendant obtained the grant by having fraudulently relied on a forged decree of divorce of the deceased’s previous marriage.  A number of reliefs are claimed in the SOC, including (1) the revocation of the grant; (2) the distribution of the deceased’s assets to the plaintiff; (3) an account for the funds that have been wrongfully distributed to the beneficiaries; (4) the granting of letters of administration to the plaintiff; and (5) damages.

3.  The defendant did not make any appearance despite various efforts having been made to serve her.

4.  By virtue of the defendant’s default of acknowledgement of service of the writ, the plaintiff, on 26 November 2012, applied by summons (as required by Order 76, rule 6 of the Rules of the High Court) for directions for trial after having proved the due service of the writ on the defendant.

B.  Case management directions

B.1  1^st CMC

5.  On 29 November 2012, I gave various case management directions that included the filing of the SOC and witness statements within a designated time to enable the case to proceed to trial.

B.2  2^nd CMC

6.  On 11 April 2003, at the 2^nd CMC, apart from having filed the SOC and a statement of one witness, all the other steps that were required to be completed by the 2^nd CMC were still outstanding.  A summons for an extension of time was therefore issued.

7.  As fraud was being alleged in the SOC, and the issues as pleaded in the SOC appeared to be rather confusing, I required the plaintiff to file evidence of the forgery, set out the issues in the Listing Questionnaire and also lodge a CMC bundle in accordance with Practice Direction 5.2.  In extending the time to the plaintiff, I reminded the plaintiff’s solicitor, Mr Miller, of the importance of complying with the Practice Direction notwithstanding the non appearance of the defendant (“April Order”).

B.3  3^rd CMC: unless order

8.  On 27 September 2013, the 3^rd CMC took place.  Not only had nothing been done since the April Order, Mr Miller did not even draw up the April Order or file the listing questionnaire as directed.  He came to court unprepared.  All he told the court was that he was not able to obtain instructions from the plaintiff.  Given the dilatory conduct of the plaintiff, and absent good reasons, I imposed an unless order (“the Unless Order”) requiring the plaintiff to comply with the April Order by 29 November 2013, failing which the claim would be dismissed.

C.  Non- compliance with unless order

9.  Nothing was done by the deadline date of 29 November 2013.

C.1  4^th CMC

10.  At the hearing on 6 December 2013, Mr Miller appeared, having failed to comply with the directions of the court. Given that the deadline for the compliance with the Unless Order had already expired, I directed Mr Miller to issue a summons for relief from sanction by 17 December 2013, to be supported with good reasons on affidavit.

11.  Mr Miller did nothing.

D.  5^th CMC

12.  No summons for relief from sanction had been issued as had been directed.

13.  At the hearing today, 20 December 2013, Mr Miller produced a computer-generated unsigned statement purported to be the plaintiff’s letter to the court.  An explanation was given in the statement that the delay was due to the death of the plaintiff’s mother and the plaintiff found it difficult to deal with the situation.

14.  I find it quite surprising that the plaintiff would have found it apt to provide an explanation for her delay by simply asking her solicitor to present an unsigned document to court when she is legally represented.  I do not think that I can accept it as any genuine attempt to explain the repeated incidents of flouting of the court’s directions, and must reject it as a valid explanation or a genuine attempt to explain the delay.

15.  Worse still, despite having been directed to issue a summons for relief from sanction, Mr Miller had completely failed to appreciate the consequence of the breach and to take the necessary remedial measures following the default.  All he said was that he was busily engaged in another court case.

16.  Such dilatory conduct cannot be tolerated.  Having regard to the fact that this was to be a trial in default of appearance, I provided one last chance to Mr Miller to let him put his house in order by directing him to issue a proper application for relief from sanction.  As the time for issuing an application for relief from sanction had already expired, Mr Miller would therefore also need to file an application for an extension of time as well when filing the application for relief from sanction.  I directed that this was to be done by 4 pm today.

17.  By close of business today, nothing had been filed.

18.  In the circumstances, the sanction has taken effect.  The claim stands dismissed.

E.  The solicitor’s conduct

19.  From the chronology of the events outlined above, it is clear that in this case the court has, partly due to the fact that the defendant was not being prejudiced, granted numerous indulgences to the plaintiff and/or her solicitors in prosecuting the action.

20.  Prejudice, however, or the lack of it, is but one of the many considerations the court needs to have regard to under the Civil Justice Reform. Just because there is no prejudice to the defendant that does not provide a licence to the plaintiff to delay the progress of the case unreasonably.  Under Order 1A rule 3, the plaintiff and Mr Miller were required to assist this court to further the underlying objectives, two of which applicable to this case were to ensure that the case was dealt with as expeditiously as was reasonably practicable (Order 1A rule 1(b)) and to ensure that the resources of the court were distributed fairly (sub-rule (f)).

21.  By virtue of the plaintiff’s and the solicitor’s dilatory conduct, the case had been unduly delayed, and the court’s time had been unnecessarily wasted in the management of the case.

22.  When faced with a peremptory order such as the Unless Order that I imposed, the plaintiff and her solicitors should have acted with diligence in proceeding with the case by complying with the directions for trial, and if there were good and genuine reasons for requiring further time, these reasons should have been properly set out in a timely fashion.

23.  The accumulation of the delays and the repeated disregarding of the court’s orders without any explanation led me to conclude that the plaintiff was not interested in bringing the matter to trial.

24.  One of the worst features of this case is Mr Miller’s conduct.  When I referred him to the various orders of the court today, including the April Order and the Unless Order, Mr Miller told me that he did not have the case file with him.  He came to the hearing without a single document relating to this case.

25.  Mr Miller has failed to conduct this case in a manner expected of a competent solicitor.