CHINACHEM CHARITABLE FOUNDATION LTD v. CHAN CHUN CHUEN AND OTHERS

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2007

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J U D G M E N T

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1.  The 1^st Defendant applied by a summons of 3 November 2008 for specific discovery in respect of the following categories of documents,

SCHEDULE

1.  Statement dated 7 April 2007 and signed by Mr Wong Wing-cheung Winfield concerning the making of a Will by the above-named Nina Kung deceased.

2.  Statement dated 13 April 2007 and signed by Mr Ng Shung-mo concerning the making of a Will by the said Nina Kung deceased.

3.  Any drafts of the said Statements or either of them whether in English or Chinese.

4.  Any translations of the said Statements or either of them.

5.  Any notes including attendance notes, interview notes or file notes relating to the taking of instructions for or making or review of the said Statements or either of them.

6.  Any correspondence with the makers of the said Statements or either of them or any other persons relating to the said Statements or the preparation or making of them.

7.  Any correspondence, attendance notes or file notes or any other documents relating to the acquisition by the Plaintiff or any of its Governors, legal advisers or other persons acting on its behalf of a copy or copies of the Will of the said Nina Kung deceased of which copies marked “Document A” were referred to in the said Statements.

2.  Items 1 and 2 were supplied by the Plaintiff.  The Plaintiff opposed to give discovery regarding items 3 to 7 on the ground of privilege.

3.  The matter was argued before this court on the basis that the 1^st Defendant ultimately sought production of these documents though the summons only sought an order for the making of an affidavit stating whether those documents is or has at any time been in the Plaintiff’s possession, custody or power under Order 24 Rule 7.  Technically, even if the documents were protected by privilege, they should still be set out in the Plaintiff’s list of documents, see Order 24 Rule 5(2).  But the court will not make an order under rule 7 if it is not necessary either for disposing fairly of the cause or for saving costs.  If the documents are clearly protected by privilege from production, Mr Chan SC did not suggest any reason for requiring an affidavit to be made.  I shall therefore deal with the application on the basis that it should be dismissed if I conclude that the Plaintiff is clearly not entitled to production of the documents.  On the other hand, if I am not sure on the materials presently before the court whether the Plaintiff can successfully assert a claim for privilege, the proper course is to order an affidavit to be made with liberty to the Plaintiff to claim privilege from production in such affidavit.

4.  But for the rule in Re Fuld (No.2) [1965] P 405, Mr Chan accepted that the documents are covered by litigation privilege.  The arguments before me revolved around the scope of the rule in  Re Fuld (No.2) [1965] P 405.

5.  In Re Fuld (No.2) [1965] P 405, Scarman J (as he then was) held that in a probate action an attesting witness is a witness of the court and several consequences following from that,

(a)  Any party properly before the court (including the party calling him) is entitled to cross-examine him in so far as his evidence deals with the execution of the will;

(b)  The court, if it thinks fit, is entitled to see, and to require him to produce, earlier statements that he may have made dealing with the question of execution.

6.  Relying on the following dicta of Scarman J at p.410E to G, Mr Chan contended that the rule extends beyond witness statement on the question of execution of a will and the documents under items 3 to 7 are covered as they related to matters that the court has to inquire into in the performance of its inquisitorial role in a probate action.

“It seems to me, therefore, that there can be in a probate case an apparent clash or conflict between the right of the court to know everything that its witness knows or has said about execution, and the right of a party to claim privilege for communications passing between that witness and himself or his solicitor for the purpose of collecting evidence for the hearing.  If there be such a conflict, I have no doubt that it must be resolved in favour of the court.  Strictly, however, there is no conflict because the court in its inquisitorial capacity is seeking the truth as to execution.  The parties upon the issue of execution are assisting the court in its search for the truth.  It seems to me, therefore, that if the court comes to the conclusion that the truth can only be discovered by asking a witness to produce earlier statements that he may have made in writing concerning execution, then the court is entitled to insist on seeing those statements, and I so rule.”

7.  Mr Chan said the true rationale of the rule is that the communication between the solicitor and the attesting witness is not protected by privilege and therefore any documents evidencing such communication are liable to be produced.

8.  On the other hand, Mr Jat SC submitted that the rule only applies to witness statements on the question of execution and does not extend to draft statements or attendance notes taken by the solicitor and other categories of documents under items 3 to 7.  

9.  It is to be noted that immediately after the passage relied upon by Mr Chan, Scarman J continued to say,

“The consequence, therefore, is that the documents in respect of which Mr Platts-Mills claims privilege, whether they be in the possession of the client’s solicitor or a third party prepared at the instigation of the solicitor, are privileged, save in so far as they deal with the subject of attestation and execution of the will … In so far as they deal with that subject, they are not privileged in my judgment, and the court is entitled to see so much of the documents as appertains to that issue, notwithstanding their general privileged character.”

10.  Hence, it is clear that Scarman J regarded the rule as being applicable only to evidence of the attesting witness on the question of attestation and execution.  The fact that the witness is an attesting witness (and as such a witness of the court) does not remove the privilege attaching to all his communications with the solicitor of a party.  The protection is only removed in respect of statement on attestation and execution.

11. The same conclusion was reached by Young J in Gordon v Hilton (1995) BC 9501693 in the Probate Division of the Supreme Court of New South Wales.

12.  Mr Chan referred to Re Webster [1974] 1 WLR 1641; Tristram & Cootes Probate Practice 30^th Edn para.27.08 and Bowman v Bowman (1843) 2 Moo and Rob 501 and submitted that an attesting witness is a witness of the court on other relevant issues like testamentary capacity and knowledge and approval.

13.  I am sure that is correct.  That would seem to be in line with the observations of Lord Scott NPJ on the power of the court to direct a material witness to go in the witness-box for cross-examination at para.643 of Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at p.572-3, see also Ribeiro PJ at para.365.  But those cases and authorities only adverted to the right to cross-examine such witness by reason of his role as a witness of the court.  They do not refer to discovery of statements taken by the solicitor for a party on matters other than attestation and execution.

14.  In my judgment, there is a material difference between the exercise of the power to direct a material witness to enter into the box for cross-examination and to order production of documents which might otherwise be protected by litigation privilege.  The characterization of a witness as a witness of the court will resolve the former issue but not the latter.  Indeed, in its reference to the rule under Re Fuld (No.2) [1965] P 405, Tristram & Cootes Probate Practice 30^th Edn para.27.08 confined its application to statement on attestation and execution.

15.  I do not think the authorities support the wide proposition advanced by Mr Chan.  The better view is that communication between a solicitor with an attesting witness for the purpose of litigation is privileged except in so far as the statement contained evidence of that witness on attestation and execution.

16.  In the present case, for items 3 and 5, the outstanding dispute is about the 1^st Defendant’s entitlement to see the draft statements prepared or attendance notes taken by the solicitor of the Plaintiff.  These documents cannot be treated as the statements of the attesting witnesses until they were approved by them.  Such approval is usually evidenced by the witnesses putting their signatures on the documents.  Before their approval, the drafts and the attendance notes are only records kept and drafts prepared by the solicitor which may or may not be a full and accurate record of what had been said those witnesses.  The attesting witnesses are not the makers of those documents.

17.  Unless one knows more about what happened when the records and drafts were made, they cannot be automatically treated as the equivalents of the witness statements of the attesting witnesses.

18.  Prying into what happened at such interviews may infringe the principle laid down in Lyell v Kennedy (No.3) 27 Ch D 1 as explained by Bingham LJ in Ventouris v Mountain [1991] 1 WLR 607 at p.615.  At this stage, I cannot tell whether this would be the case because the Plaintiff has not yet filed any affidavit claiming privilege on that basis.

19.  On the other hand, if there were drafts or attendance notes which contain evidence of the attesting witnesses on attestation and execution, subject to the Lyell v Kennedy objection, it is difficult to see why they should not be disclosed.  The documents can be put to the attesting witnesses when they come to testify and they can tell the court to what extent the documents are accurate in recording what has purportedly been said by them.

20.  In the circumstances, I think the proper course is to order an affidavit be filed by the Plaintiff regarding items 3 and 5 with liberty to the Plaintiff to claim privilege in such affidavit after deposing to the existence or non-existence of such documents.  However, in view of my conclusion on the scope of the rule in Re Fuld (No.2) [1965] P 405, the categories of documents should be narrowed down to confine the same to drafts of statements and attendance notes, interview notes or file notes which contained evidence of the attesting witnesses on the question of attestation and execution. 

21.  As regards item 4, I fail to understand why it is necessary to have the translations of the witness statements when the originals signed by the witnesses have already been produced.  There is no suggestion that the witnesses had signed the translations.  Putting the translations to the witnesses does not serve any useful purposes when the 1^st Defendant can put the signed statements to them.

22.  Items 6 and 7 are not documents containing evidence of the attesting witnesses.  Rather, they are documents evidencing enquiries undertaken by the Plaintiff’s solicitors with the attesting witnesses and other persons.  They are outside the scope of the rule in Re Fuld (No.2) [1965] P 405 and covered by litigation privilege.

23.  I do not regard the requirement regarding affidavit of testamentary scripts under Order 76 rule 6 takes the 1^st Defendant’s application concerning item 7 any further.  The Plaintiff has already set out in a letter dated 21 October 2008 its response to the inquiry of the 1^st Defendant  in the latter of 30 September 2008.  If the 1^st Defendant is not content with such answer, he may consider whether he can rely on Order 76 rule 6 to require the Plaintiff to file any affidavit on the Plaintiff’s knowledge of the purported 2006 will and apply for the cross-examination of the deponent of such affidavit (if the court shall order the same) on the basis of the judgment of Lord Scott in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at p.572-3.  But it does not follow that the court can ignore the litigation privilege of the Plaintiff in respect of item 7 and I have already ruled that Re Fuld (No.2) [1965] P 405 does not go that far.

24.  I shall therefore refuse the application regarding items 4, 6 and & 7 and grant the application in a limited form as indicated regarding items 3 and 5.

25.  Regarding costs, neither party can be said to be wholly successful.  After considering the matter in the round (including the conduct of the Plaintiff regarding the witness statements prior to the issue of the summons), I make a costs order nisi that there be no order as to costs in respect of this application.