HO HIP LIK and Another v. KWAN MAN HO and Others

Legal Aid No.M/LA 6282/84 (JCS)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

NO.P6 OF 1986

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D E C I S I O N

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1. This is an application by the 1st and 4th defendants to strike out the plaintiffs' action for want of prosecution and for other ancillary relief.

Background

2. The deceased, Mr Kwan Chuen, died on 23 October 1981. He left no widow, parents, brother or sister. The plaintiffs who are brothers are the sons of the 1st daughter of the deceased. The 1st, 2nd and 3rd defendants who are brothers are the sons of the 2nd son of the deceased. The 4th and 5th defendants who are brothers are the sons of the 1st son of the deceased. The 6th defendant is the 3rd son of the deceased. The 7th and 8th defendants are the 2nd and 3rd daughters of the deceased. The 9th defendant who is the sister of the 4th and 5th defendants is a daughter of the 1st son of the deceased. The 10th defendant is a daughter of the 6th defendant who is the 5th son of the deceased. The 11th defendant is the 4th daughter of the deceased. In other words, the 6th, 7th, 8th and 11th defendants are the children of the deceased while the other parties in this action are the grandchildren of the deceased.

3. I should perhaps point out that of the 11 defendants, only the 1st defendant and 4th defendant who supports him are the real defendants and the present application was issued by them. Of the other nine defendants, five of them are either overseas or not interested in attending this hearing. The remaining four defendants, i.e., the 2nd, 5th, 7th and 8th defendants attended court and supported the plaintiffs.

4. The deceased left a will which was dated 17th February 1978 and four codicils dated 15th June 1981, 24th June 1981, 29th August 1981 and 31st August 1981 respectively. Probate of the will and the four codicils was granted on 25th February 1983 under Probate Grant No.652 of 1983 to the 1st defendant who was the sole executor named in the will and codicils.

5. The will was purported to have been written in English and witnessed by a solicitor, Mr F.J.J. Lee and his clerk, Mr K.W. Liu. It appointed the 1st defendant as the sole executor and trustee of his will. It made a number of specific legacies. Under Clause 8, all the residuary estate of the deceased was bequeathed and devised to the 1st defendant. The 1st codicil was purported to have been written in Chinese and witnessed by the 2nd and 4th defendants. It made another few specific legacies. The 2nd codicil was purported to have been written in English and witnessed by the same solicitor and clerk. It modified the will in respect of two specific legacies which had been paid out by the deceased during his life-time. The 3rd codicil was purported to have been written in Chinese and witnessed by the 2nd and 4th defendants. It made another specific legacy. The 4th codicil was purported to have been written in Chinese and witnessed by Mr Tao Cho Yao and Mr Lee Cho Yiu. It declared and confirmed that the will executed by the deceased on 17th February 1978 was effective and that with the exception of the properties specified in the will which were to be bequeathed to the various beneficiaries, all other properties shall be wholly bequeathed to the 1st defendant for his enjoyment.

Issues as pleaded

6. In this action the plaintiffs challenge the validity of the will and the four codicils, in particular, Clause 8 of the will and the 4th codicil which purported to bequeath the residuary estate to the 1st defendant. In the Amended Statement of Claim, the plaintiffs rely on a number of grounds. The first allegation is that the will and four codicils were not duly executed in accordance with the provisions of the Wills Ordinance, Cap.30. It is alleges that the deceased could not sign his own name properly and the 1st defendant had from time to time held the deceased's hand and practised signing his name. It is also alleged in particular that the 4th codicil was not witnessed by Mr Tao and Mr Lee who only signed their names on the document at a subsequent stage and separately. The document shown to Mr Tao was a different document. The 4th codicil was not signed by the testator or by some one in his presence and by his direction.

7. The second ground is that the deceased was not of sound mind, memory and understanding at the time the will and four codicils were purported to have been executed. It is alleged that the deceased, who was then 94 years of age at the time of these testamentary documents and had not recovered from the shock of the loss of his wife, had difficulties in recognising his relatives, in hearing, seeing and understanding things generally. He had a deterioration of his mental facilities and comprehensive power.

8. The third ground is that the execution of the will and the four codicils were obtained by undue influence from the 1st defendant. It is alleged that the 1st defendant started as a menial servant of the deceased and had a lot of opportunities to speak to the deceased alone. In view of his conditions, the deceased, before his death, fell under the control of the 1st defendant who kept his keys to the safe, controlled his money matters and dictated what he should eat and do. The 1st defendant even intercepted all telephone calls and screened all visitors to the deceased. The 1st defendant had been known to speak ill of many family members. The 1st defendant was overheard by the 2nd plaintiff to have asked the deceased questions about disposition of his estate.

9. The fourth ground is that the deceased did not know or approve the contents of the will and codicils. It is alleged that the deceased, prior to his death, had indicated his intention to divide the residuary estate among his male issues but that the will and the four codicils contained dispositions which were inconsistent with such declared intention of the deceased.

10. Finally it is alleged that the 1st defendant had orally assured the 5th defendant that he would divide the residuary estate in accordance with the deceased's wishes, i.e., dividing the residuary estate among the male issues. The 1st defendant is, it is alleged, therefore a constructive trustee of the residuary estate. In December 1981, the 1st defendant had called upon the 4th defendant to prepare a family agreement which was inconsistent with the provisions of the 4th codicil. The 1st defendant had also informed the 2nd plaintiff that under the family agreement, the two plaintiffs would each get a specific sum since they were the children of a daughter of the deceased.

11. In the Amended Defence, the 1st and 4th defendants plead how the 4th codicil came to be written, signed and witnessed. It is alleged that the 4th codicil was written by the 1st defendant at the dictation of the deceased shortly before 31st August 1981. The deceased had already spoken to the two witnesses Mr Tao and Mr Lee before on the telephone and asked them to be witnesses. It is alleged that the deceased had shown the 4th codicil to Mr Tao. After Mr Tao had read the 4th codicil at the request of the deceased, the deceased then signed and Mr Tao also signed. The deceased then instructed the 1st defendant to follow Mr Tao to his shop in order to put the chop of the firm on the 4th codicil. The 1st defendant upon the instruction of the deceased then took the 4th codicil to Mr Lee to sign and for putting the chop of his firm below his signature. It was after Mr Lee had done so that the codicil was taken back to the deceased and thereupon the day "31st" was filled in.

12. It is also alleged that even if the 4th codicil was not signed by the deceased in the presence of the two witnesses, it was nonetheless valid and duly executed under s.5(2) of the Wills Ordinance, being a will of Chinese testator written wholly in Chinese and signed by him.

13. Apart from that, the other allegations made in the Statement of Claim are denied. It is alleged that the deceased had full control over his own activities and way of life. It is also alleged that the family agreement did not reflect the wishes of the deceased and the draft was never intended and did not have effect as a testamentary document nor a contractual document. It had no effect as creating any trust.

14. These are the issues between the parties. I do not think I need to go into the details of the Further and Better Particulars of the Amended Statement of Claim or the Amended Defence or the Reply.

Principles that are applicable

15. In the present application, the 1st and 4th defendants submitted that there was inordinate and inexcusable delay on the part of the plaintiffs in pursuing the action and that they had suffered and will continue to suffer prejudice.

16. Leading counsel for the 1st and 4th defendants submitted that the principles governing an application for striking out for want of prosecution are set out in the two cases of Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297. These principles were comprehensively summarised in the judgment of Neill L.J. in the more recent case of Trill v. Sacher [1993] 1 WLR 1379. I think there can be no dispute that these principles represent the law and apply to this case. I do not propose to set out all the principles again in this judgment, save the most basic guiding principle : an action may be struck out where the court is satisfied that

(1) there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and

(2) such delay (a) would give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or (b) is such as is likely to cause or to have caused serious prejudice to the defendant either as between themselves and the plaintiff or between each other or between them and the 3rd party.

17. The burden is of course on the defendant to satisfy the court that these criteria have been met. A delay which is inordinate is prima facie inexcusable and it is for the plaintiff to make out a credible excuse.

18. Where there has been a delay before issuing proceedings, one would expect a plaintiff to proceed with the case with reasonable diligence. The court would also look at any subsequent delay carefully and may take into consideration all the periods of inexcusable delay since the issue of the writ where the limitation period has expired. The effect of delay depends on the nature of the issues involved in the case and of the evidence to be adduced, whether and to what extent reliance is placed on the memory of witnesses or documents. When considering the question of prejudice, the court will look at all the circumstances, including the periods of inordinate and inexcusable delay for which the plaintiff or his advisers are responsible and whether they have caused or are likely to cause serious prejudice, or whether there is a substantial risk that because of this delay it is not possible to have a fair trial of the issues in the action.

History of these proceedings

19. Both parties referred me to the history of these proceedings in order to decide the first question as to whether there has been inordinate and inexcusable delay. I shall now set out the relevant events and the steps taken both before as well as after the action has commenced :

(1) 17th February 1978 - execution of the will

(2) June/August 1981 - execution of the four codicils

(3) 23rd October 1981 - death of the deceased

(4) 21st February 1983 - probate granted to the 1st defendant

(5) Mid-1983 - the plaintiffs started to consider action against the defendants

(6) 27th February 1984 - distribution of legacies to the plaintiffs

(7) 29th February 1984 - the plaintiffs applied for legal aid

(8) 5th November 1984 - distribution of legacies to all beneficiaries

(9) Mid-November 1984 - Legal Aid granted to the plaintiffs

(10) 8th October 1986 - writ of summons issued in this action

(11) 25th February 1987 - Defence of the 1st and the 4th defendants filed

(12) 18th March 1988 - Notice of Intention to proceed filed by the plaintiffs

(13) 20th May 1988 - Reply to defence filed

(14) 1st December 1988 - Summons for Directions issued by the plaintiffs

(15) 8th March 1989 - hearing of the Summons for Directions; ruling given by the court on 22nd March 1989

(16) 25th April 1989 - summons issued by plaintiffs for extension of time to file Amended Statement of Claim

(17) 6th May 1989 - Amended Statement of Claim filed

(18) 9th May 1989 - Orders for directions

(19) 13th November 1989 - List of documents filed by the plaintiffs

(20) 7th December 1989 - Amended Defence and List of documents of the 1st and 4th defendants filed

(21) 30th December 1989 - Amended Reply filed

(22) 25th January 1990 - Further and Better Particulars of Amended Defence filed

(23) 28th August 1991 - Consent Order dealing with the proceeds of sale of one property of the estate

(24) 12th April 1994 - Notice of Intention to proceed filed by the plaintiffs

(25) 27th July 1995 - summons issued by the 1st and 4th defendants for striking out the action for want of prosecution

Inordinate and inexcusable delay

20. Counsel for the 1st and 4th defendants submitted that there had been four periods of delay, namely, 3½ years before the issue of the writ; one year and three months between the filing of the Defence in February 1987 and the filing of the Reply in May 1988; half a year between the filing of the Reply and the issue of the Summons for Directions; and 4½ years from the filing of the Further and Better Particulars of the Amended Defence in January 1990 and the issue of the present summons in July 1995. Counsel submitted that such periods of delay must be regarded as inordinate and inexcusable, applying the principles in Trill v. Sacher, supra, and Tabata v. Hetherington, unreported, The Times, 15th December 1983. It seems that counsel for the plaintiffs did not seek to argue very strongly that there was no delay except that he submitted that the period before the issue of the writ should not be counted. He also sought to justify any period of delay.

21. Although the will and the first three codicils were made known to the beneficiaries in about November 1981, it was not until April 1983 that the 4th codicil was revealed. This is certainly rather suspicious because the 4th codicil was made only two days after the 3rd and there appears to be no reason why it was made known together with the other documents but almost 2½ years after the 3rd codicil. It is therefore not surprising that members of the family wanted to find out the truth and had considered taking action against the 1st defendant. It was only after the appearance of the 4th codicil that some of the beneficiaries considered that they had sufficient evidence to start the action. Some consulted their legal advisers and decided to go ahead. There were some discussions regarding the financing of the proposed legal action since most of them could not afford the legal costs. Finally, it was the two plaintiffs who applied for legal aid and were successful in getting it granted to them in November 1984. According to the chronology compiled by Mr Choi, solicitor for the plaintiffs, steps were then taken immediately to take instructions from the plaintiffs and to brief counsel to advise on the matter and settle the necessary court documents. Junior and leading counsel were instructed. Preparation work was carried out during the whole of 1985 and early 1986. It was in about June 1986 that the solicitors were informed that junior counsel was to emigrate to Canada and cease private practice. Hence, another junior counsel had to be briefed. After counsel had worked on the case, the writ was issued on 8th October 1986.

22. It may be argued that there was a period of delay of approximately 10 months between April 1983 when the plaintiffs and other beneficiaries discovered the presence of the 4th codicil and February 1984 when the plaintiffs applied for legal aid. This period might have been taken up by the plaintiffs and the various beneficiaries for discussion on what they should do. They had to discuss with those in Hong Kong and wait for the reply from those overseas. It would therefore take a little while for them to come to a decision to take legal action. Then there was also the question of who should be responsible for financing the litigation and who would be in a better position to apply for legal aid. In my view, although this process had taken up more time than it should be the case, I do not think that in view of the number of parties in Hong Kong and overseas, one can consider that period of time as a delay, at least not an inordinate delay. Even if it can be so regarded, I do not think that such period can be said to be inexcusable.

23. Since November 1984, the matter had come into the hands of the lawyers. It had taken one month short of two years for the action to be commenced by the issue of the writ in October 1986. This was a rather unusually long period of time. However, I bear in mind that leading counsel had to be instructed and this indicated the complexity of the case. What is more, junior counsel had emigrated and another counsel had to be briefed. This certainly had wasted at least a certain amount of time since the new counsel had to take some time to familiarise himself with the case. Hence, while I accepted that there seems to be a delay in getting the case started, particularly when one bears in mind the lapse of 10 months before they decided to apply for legal aid, I do not think this period of slightly less than two years can be regarded as inordinate delay. Even if it can be so regarded, I do not think such delay is inexcusable.

24. Since the commencement of the action, one would expect that the plaintiffs would proceed with the action with expedition, bearing in mind the lapse of time before the issue of the writ. The action had started for a while until the Defence was filed in February 1987. The next step taken in the action was the filing of the Reply in May 1988. There was a gap of one year and three months in between. This lapse of more than one year requires an explanation. It seems that during this period, something unexpected occurred. The plaintiffs had to change counsel yet again because junior counsel left the Bar to join the Judiciary. Understandably, when another junior counsel was briefed, it had taken him some time to pick up the case. There was also a summer vacation in between. In my view, this period of delay is excusable.

25. Then there was a lapse of another six or seven months between the filing of the Reply and the issue of the Summons for Directions in December 1988. Counsel for the 1st and 4th defendants submitted that this was another period of delay. In view of the nature of this case, I think this short period during which no formal step in the proceedings had been taken cannot be regarded as a period of delay. Behind the scene, solicitors and counsel were working to put other matters ready.

26. The action proceeded between December 1988 and January 1990. But since that time, there was a long period of inaction until the 1st and 4th defendants took out the present application. This was a period of 4½ years. I must say that having regard to the history of the proceedings, this period was not only a delay but also by all standards inordinate delay. The plaintiffs sought to explain this as follows.

27. The 2nd defendant who opposed the present application filed an affirmation for the plaintiffs. According to him, in early February 1990, the 4th defendant suddenly approached him and the 5th defendant and arranged for a meeting. When they met, the 4th defendant informed them that he was representing the 1st defendant and that both the 1st and 4th defendants intended to settle the action. An offer was made which included giving up the properties known as Nos.105 and 107 of Wing Lok Street to be shared among other members of the Kwan family whose names appeared in a previous agreement in early 1982. I do not propose to go into detail of the proposals except to mention that it appears that there would be a division in equal shares by the male members and certain payments to the female members. The 2nd defendant then informed Mr Choi, the solicitor of the plaintiffs who confirmed that he had a message from the solicitors for the 1st and 4th defendants informing him that they intended to settle the case. Hence, all the members of the family were consulted and their views were sought on the new proposals. Solicitors for the 1st defendant were also asked to confirm in writing those new proposals. The matter was then discussed among the plaintiffs and other defendants. It appears that at that time some of the beneficiaries were residing overseas, namely, the 3rd, the 6th, the 9th and the 10th defendants and Mr Kwan Man Kwong and Mr Kwan Man Yiu all residing in Canada and the 11th defendant residing in China. During the discussions, some of the beneficiaries thought that the properties offered by the 1st defendant were not sufficient. There were also differences in the method of distribution. This was particularly the case for the female members as they were not supposed to have an equal share in the properties offered for settlement.

28. According to the 2nd defendant, the 4th defendant agreed to represent them and to negotiate with the 1st defendant. It was his understanding that the 4th defendant had on many occasions approached the 1st defendant but without very much progress. The negotiations and discussions had continued through 1990 into early 1991. It was said that the 4th defendant had made several proposals, some of which were presented in the form of draft settlement agreements. The 6th defendant returned from Canada for the discussions. He too prepared a draft settlement agreement at the end of 1990. The 6th defendant represented not only himself but also the interest of his immediate family members, namely, the 10th defendant, Mr Kwan Man Kwong and Mr Kwan Man Yiu. The draft prepared by the 4th defendant and that prepared by the 6th defendant were discussed among members. These proposals however were eventually rejected especially by the female members.

29. Then in the middle of 1991, the 2nd and 5th defendants tried to ascertain the general intentions of the members of the Kwan family concerning distribution. They then drafted another agreement in the form of a Memorandum of Settlement. This was sent by post to all members of the family. This memorandum did not include the 1st and the 4th defendants who were "the other side". It seems that all interested parties had signed excepted the 2nd plaintiff, the 6th, the 7th, the 8th, the 10th defendants, Mr Kwan Man Kwong and Mr Kwan Man Yiu. The 6th defendant had not signed the agreement but had indicated that he would sign provided that all members in Hong Kong had signed and would also represent his children, namely, the 10th defendant, Mr Kwan Man Kwong and Mr Kwan Man Yiu to sign on the memorandum.

30. In the second half of 1991 and in 1992, the 2nd defendant said that he and the 5th defendant were trying to persuade other members to sign the memorandum. They were also waiting for the reply from the 1st defendant through the 4th defendant on the possibility of a topping up of the funds offered under the proposed settlement. However, the 4th defendant then went to Australia to spend most of his time there for immigration purposes. Hence, these talks between the 2nd and 5th defendants for the other members of the family on the one part and the 4th defendant acting for himself and the 1st defendant on the other part had been going on and off but with no concrete result. The 2nd defendant was nominated by the other members of the family to contact the 1st defendant direct.

31. On one occasion in 1992 or 1993, the 2nd defendant met the 1st defendant and discussed the matter of settlement. According to him, it was then that he came to realise that the 4th defendant was not genuine in conducting the negotiations because he had warned the 1st defendant to be careful of the other members "picking his pocket". Nothing resulted from the meeting. In February 1993, the 2nd defendant visited the 1st defendant and told him that the members of the family were still proceeding with the settlement. There was a similar occasion in July 1993. The 1st defendant asked him about the progress of the settlement. He requested the 1st defendant to put up more funds for distribution, but the latter refused. On one occasion in 1993 or 1994, the 2nd defendant said he tried to persuade the 1st defendant again but without success. In mid 1993, the 9th defendant came back from Canada and talked to her brother the 4th defendant and a result, a meeting was arranged in a restaurant with the 2nd defendant the 5th defendant and the 2nd plaintiff. The 4th defendant made a new proposal and that was written on a note of paper. Nothing came out from that.

32. According to the 2nd defendant, he met the 1st defendant on several occasions in late 1993. He said that on some occasions, the 1st defendant told him that he, the 1st defendant, had been advised by his lawyers to "take more positive steps", but he declined such advice, saying that he wanted to avoid an expensive court action. The 2nd defendant said that the 1st defendant told him that he would like to allow more time to reach a settlement and that one more year would be sufficient. It was said that the 1st defendant had said that on several occasions in 1994. The 2nd defendant said that by mid 1994, he did not think there would be any settlement and the plaintiffs' solicitors were asked to proceed with preparation of the action. He said that even after the present summons was issued, the 1st and 4th defendant still said that they would like to settle on the previous proposal by their lawyers did not advise them to do so.

33. The 1st defendant admitted that he had asked the 4th defendant to inform the other parties that he intended to offer the two properties in Wing Lok Street for distribution as a settlement. However, he said that he had never appointed the 4th defendant to ac his representative to negotiate with the others. His solicitors also said that a without prejudice offer was made in 1990, but there was no counter-proposal from the plaintiffs' solicitors. The 1st defendant denied having negotiated with the 2nd defendant. He said he had persistently refused the latter's proposals. The 4th defendant also denied that he had ever represented the 1st defendant in the negotiations.

34. There are clearly some disputes on some of the facts and I do not think I can resolve them at this stage. In considering the question of inordinate and inexcusable delay during this substantial lapse of time, I bear in mind the following.

35. First, it is admitted that in early 1990, it was the 1st and 4th defendants who initiated the negotiation for settlement. Not only was the 2nd defendant approached by the 4th defendant, Mr Choi, solicitor for the plaintiffs, was also informed by the solicitors for the 1st and 4th defendants that their clients wished to settle and a written offer was made. The parties started to discuss amongst themselves. Although it was denied that the 4th defendant represented the 1st defendant in the negotiations, it seems clear to me that the 1st defendant was very much behind the 4th defendant and was kept informed of the progress. The latter would not have made those suggestions if he had not received backing from the 1st defendant and been asked to make such an offer. I do not think I should draw a distinction between the 1st and 4th defendant. Nor do I think it is appropriate to accede to the application of one defendant but not the other.

36. Second, in 1991, there were discussions and finally an agreement that one of the properties in the estate was to be sold since there was a prospective purchaser at a reasonably good price and that the proceeds of sale were to be placed into a stakeholder's account. This resulted in a consent order made September, 1990. In the light of the commencement of negotiations for settlement, the timing of this was not insignificant. In my view, such agreed sale of property gave the impression that the parties were genuine in coming to an amicable settlement to resolve this family dispute. This gave an impetus to the on-going negotiations. It had also given the plaintiffs and the other defendant the hope that the matter might finally be settled.

37. Third, there are quite a number of parties involved in this action. Apart from the plaintiffs and the 1st and 4th defendants, the others are not legally represented. I appreciate that they are in support of the plaintiffs and must have contacts with the 2nd defendant and one another. However, one cannot overlook the fact that in such circumstances, negotiations are clearly difficult to conduct, let alone trying to secure a consensus or agreement on important matters. I perfectly understand the difficult situation faced by Mr Choi, solicitor for the plaintiffs who could not be active in pursuing the matter of negotiations amongst the different parties. One should give every allowance to them for taking much longer time than would be the case where there are only two or three parties involved and all are legally represented.

38. Fourth, during these negotiations, the parties had also gone to the extent and trouble of presenting various written proposals for consideration. Both the 4th defendant and the 6th defendant had prepared certain draft settlements to the other sides. Unfortunately, none of them bore any fruit. Then in mid 1991, there was also the Chinese memorandum of settlement which was prepared and sent around for agreement and signature. The majority of the parties had signed. But by early 1992, it would have been apparent that there was little progress on the Chinese memorandum.

39. Fifth, even according to the 2nd defendant, no active progress was made in 1992 and 1993 with regard to a settlement. There were some contacts between the 2nd defendant and the 1st defendant, but they were not that many. There was a meeting between the 4th defendant and some of the other parties in mid 1993 including the 2nd defendant and the 2nd plaintiff. This might be regarded as a step in reviving the negotiation. However, this had not resulted in any agreement. In view of the conflict between the evidence of the 1st defendant and that of the 2nd defendant as to what was discussed in their meetings in 1992 and 1993 and whether the 1st defendant had misled the 2nd defendant, I should not make a finding one way or the other. Suffice it to say that there was no result from those meetings. In any event, I think it is clear that by early or mid 1992, the zeal had cooled down. It should also be clear that the 1st defendant was non-committal. One would expect that with this impasse, something must be done to keep the proceedings going instead of having the matter dragged on. The burden is clearly on the plaintiffs to take active steps in pursuing their legal rights and protecting their claim from being struck out. This they had not done.

40. Having considered all the evidence placed before me, I have come to the view that in not taking any active step in keeping the action going from mid 1992 or at the latest in 1993, the plaintiffs have been guilty of delay and have failed to give a reasonable excuse for their inaction. However, I do find that they have been lulled by the proposals made by the 1st and/or 4th defendant in 1990 through to 1992 into believing that there was still hope for an amicable settlement. Even in mid 1993, there was a meeting between the 4th defendant and the others. Furthermore, as this action has been registered as a lis pendens on the estate, it should also be the concern of the 1st and 4th defendants that the matter should not be left hanging in the air. This of course is more relevant to the question of prejudice. But I think this is also a factor which I should take into account when considering who was responsible for the delay and how much he is to blame for it. In the circumstances, I hold that the plaintiffs are responsible for this inordinate and inexcusable delay, but that the 1st and 4th defendants are not free from blame.

Prejudice and substantial risk of no fair trial

41. Leading counsel submitted that because of the long delay, there was a substantial risk that there could not be a fair trial. He said that the allegations were very serious and the factual issues very complicated requiring witnesses to go into daily factual matters which occurred between 1978 and 1981. He pointed out that medical records had to be obtained. Some witnesses had retired and/or emigrated and not traceable. He also submitted that the memory of the witnesses was bound to be blurred by the lapse of time. As to prejudice, he said that the 1st and 4th defendant had suffered and would continue to suffer serious prejudice. They had the serious allegations hanging over their heads for a log time. There was the writ registered as a lis pendens against a lot of properties of the estate. In fact, they had lost an offer to sell one of the properties.

42. Counsel for the plaintiffs argued that there was minimal evidence of prejudice and substantial risk of unfairness. He said that there was no evidence that the solicitors for the 1st and 4th defendants had made any real attempt to locate the witnesses. They should have taken statements form them long time ago. As to the medical records, the solicitors should have obtained them years ago. It was the plaintiffs who had to prove that the deceased did not have the testamentary capacity. What effect there was on the memory of witnesses remained to be assessed at the trial. Counsel submitted that there was no risk of an unfair trial or any prejudice to the 2 defendants.

43. I do not think it can be disputed that the memory of a witness fades through the passage of time. In the present case, apart from the attestation of the will and codicils and the medical conditions of the deceased, most of the other matters are matters relating to the general conduct and behavior of the deceased, the 1st defendant and other members of the same family. Having considered the issues and disputes of fact as raised in the pleadings, it seems to me that for the majority of the allegations and counter-allegations, the court need not go into the details of each and every incident or is required to make a finding on each of them. Most of them are matters known or even well-known to all members of the family. That being the case, I do not think the lapse of time would have as serious an impairment on the memories of the witnesses as one would expect.

44. With regard to the witnesses to the will and the 2nd codicil, i.e. Mr Lee, the solicitor and Mr Liu, the clerk, what they had done and seen at the material times have been clearly pleaded in the Amended Defence and Further and Better Particulars. It seems that their statements of the events must already have been taken or should have been taken a long time ago. Furthermore, it was said that Mr Lee retired in 1987 and Mr Liu in 1990. I do not think that one can confidently say that any loss of memory of these two gentlemen can be attributed to the delay caused by the plaintiffs as I have discussed above. Similar comments can be made with regard to the two witnesses who signed on the 4th codicil, Mr Tao and Mr Lee. Some instructions would or should have been taken from them before the preparation of the Amended Defence. There is no evidence as to where they are now and what effort has been made to locate them. With regard to the medical evidence, I think counsel for the plaintiffs is right in saying that this issue was raised from the start and medical records should have been obtained by now. In any event, it is for the plaintiffs to show that the deceased did not have the sound mind to make those will and codicils and that he did not understand or approve the contents of these documents. If there is prejudice, it should be the plaintiffs who would be affected.

45. I am not persuaded that the 1st and 4th defendants have suffered and would continue to suffer serious prejudice. This is a family dispute in which members of the same family criticise the conduct of one and the other. What sort of reputation one member has within the family should have been known to the others. I do not think that the presence of these proceedings would have made any real difference to their impression on one another. As to the lis pendens, I am not convinced that this alone would be sufficient to have the court strike out the action. Afterall, if the 1st and 4th defendants are really affected by the lis pendens, they would have done something by now as they did in 1991 with regard to the property which was the subject matter of a consent order.

Conclusion

46. Not without some reluctance, I have come to the following conclusions in this family dispute. I find that the plaintiffs have failed to provide a reasonable excuse for the delay from mid 1992. However, the 1st and 4th defendants are also partially responsible for it. They have also failed to satisfy me that because of this delay, there is a substantial risk that they will not have a fair trial or that they have suffered prejudice as a result of the delay or will suffer further prejudice. For these reasons, I would exercise my discretion and refuse the application.