CHAN CI KA CINDY v. EDWARD C.T. WONG & CO. (a firm)

HCA 2442/2024

[2025] HKCFI 1100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2442 OF 2024

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BETWEEN

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D E C I S I O N

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I.  INTRODUCTION

1.  This is the Plaintiff’s application by way of Summons filed on 13 December 2024 for an interlocutory injunction that the Defendant, a solicitors firm (the “Firm”), be restrained from acting as solicitors representing and advising Mr Chan Man Lung Samson (“Samson Chan”), who is the first defendant in High Court Probate Action No. 14 of 2023 (the “Probate Action”) commenced by the Plaintiff. Broadly, the grounds for the application are that (1) the Firm has conflict of interest in representing and advising Samson Chan; and (2) the Firm would obtain confidential information from the relevant litigation and misuse such confidential information.

2.  To appreciate these two grounds, I should briefly set out the history between the Plaintiff and the Defendant in various litigation.

II.  PROBATE ACTION

3.  The first litigation I have to mention this of course the Probate Action.

4.  The Probate Action was commenced by the Plaintiff on 22 March 2023 against, among others, Samson Chan and Mr Wong Chee Tong Edward (“Edward Wong”) (who was the principal partner of the Firm) in respect of the estate (the “Estate”) of Mr Chan Tong Kwan (the “Deceased”), who was the father of the Plaintiff and Samson Chan. In the Probate Action, the Plaintiff seeks a pronouncement by the Court that a Will executed by the Deceased on 11 June 1990 (the “Will”) is the last valid Will executed by the Deceased and that the Will is contained in a copy (the “Copy Will”) kept by the Plaintiff. Under the Will, both the Plaintiff and Samson Chan would be beneficiaries. Further, Mr Yeung Ho Lam (“Yeung”) and Edward Wong would be co-executors.

5.  Samson Chan is represented by the Firm in the Probate Action. He denies the validity of the Will. The crux of his Defence is set out in its paragraph 9:-

“…[Samson Chan] avers that:-

(a) the deceased repeatedly told [Samson Chan] and in the presence of the Plaintiff during the lifetime of the Deceased that the Deceased would not leave anything for his children after his death;

(b) [Samson Chan] was verbally informed by Mr Gordon Chan [of the Firm], a partner of [the Firm], that when [Edward Wong] retired in 1990, [Edward Wong] should have returned all originals entrusted to him or the [Firm] by his client before his retirement otherwise the original Will be passed on to Mr Gordon Chan and could now be found amongst the papers of the [Firm];

(c) the Plaintiff was surprised by [Samson Chan] called her after sending her a copy of the Will and cover letter;

(d) it is therefore [Samson Chan’s] reasonable belief that the Plaintiff had no idea of the existence of the Will before [Samson Chan] gave her a copy thereof; and

(e) it is therefore [Samson Chan’s] reasonable opinion that the Will must have been revoked by its destruction because the original thereof cannot be found /located.” (emphasis added)

6.  Therefore, one of the issues in the Probate Action is whether the Will was revoked by destruction. This issue in turn depends upon, among others, whether the original Will had indeed returned to the Deceased before Edward Wong’s retirement or was passed to Mr Chan Hung Kei, Gordon (“Gordon Chan”), a partner of the Firm, also the handling partner of the Probate Action, or whether it was actually lost.

III.  DEFAMATION ACTOIN BY GORDON CHAN AGAINST PLAINITFF

7.  Whether the original Will was returned to the Deceased, passed to Gordon Chan or was lost became an issue that gives rise to a defamation claim commenced by Gordon Chan in DCCJ 5024/2023 (the “Defamation Action”) against the Plaintiff.

8.  The background of the case is this. A WhatsApp group was formed in September 2023 after the Deceased’s death, for the purpose of handling the matters relating to the Estate of the Deceased. The members of the group included the Plaintiff, Samson Chan and Gordon Chan. In the Defamation Action, Gordon Chan claims that the Plaintiff sent a few messages defamatory of him in the WhataApp group. One of the messages was sent by the Plaintiff on 13 September 2023. To wit:-

“Samson, 請你找一些可信同有經驗的律師，資詢爸爸的遺產應該怎樣合法處理承辦。陳源基 [Gordan Chan] 到今天都沒有實質證據解釋為何遺囑在他的托管下不見了，還教唆人非法地不用遺囑處理遺產去逃稅…”

9.  One of the defences raised by the Plaintiff in the Defamation Action is the defence of justification. In particular, the Plaintiff pleaded in §9A(b) of her Amended Defence that:-

“Despite [that] the Will was kept at [the Firm] following the execution of the Will, the Will remains mislaid / unfound to this day of the Amended Defence. As a matter of fact, as of the date of this Amended Defence, [the Firm]never provided any credible explanation and answer as to the whereabouts of the Will”.

10.  Gordon Chan’s Reply is found in paragraph 8 of the Amended Reply:-

“Save that the Will is not found, paragraph 9Ab is denied. Before the retirement of Mr WONG Chee Tong Edward in 1990, he verbally told [Mr Gordon Chan] that all originals (including the Will) entrusted to him or [the Firm] by his clients had been or otherwise would be returned to clients before his retirement. As such, the original Will should have then been returned to [the Deceased] by Mr WONG Chee Tong Edward; thus, the original Will could not be found amongst the papers of [the Firm].”

11.  Therefore, broadly speaking, one of the issues in the Defamation Action is whether the original Will was mislaid by Gordon Chan or whether the original Will was indeed returned to the Deceased. Gordon Chan would of course like to have a finding that the original Will was indeed returned to the Deceased, rather than that it was mislaid by him, because the latter would tend to suggest that there was some misconduct on the part of Gordon Chan and the Firm.

IV.  IMPLICATION OF THE ISSUE OF DEFAMATION ACTION ON PROBATE ACTION

12.  If the original Will was returned to the Deceased, then this would lend support to Samson Chan’s defence set out in §9(e) of his Defence in the Probate Action, namely, as quoted in §5 above:-

“it is therefore [Samson Chan’s] reasonable opinion that the Will must have been revoked by its destruction because the original thereof cannot be found /located.”

V.  CONFLICT OF INTEREST

13.  In other words, Gordon Chan’s interest in the Defamation Action is aligned with Samson Chan’s interest in the Probate Action.

14.  However, this does not mean that Gordon Chan or the Firm has no conflict of interest. On the contrary, for the following reasons, I find that both Gordon Chan and the Firm would have conflict of interest in representing Samson Chan in the Probate Action, contrary to paragraphs 5.7 and 7.02 of the Hong Kong Solicitors’ Guide to Professional Conduct:-

(1)  Gordon Chan and the staff of the Firm may well be called to give evidence to explain how he and the Firm handled the handover of the papers kept by Edward Wong before his retirement. Gordon Chan may well be accused of having interest in giving evidence in the way to buttress his claim in the Defamation Action that the Will had been returned to the Deceased. I am not saying that Gordon Chan would necessarily be lying or incredible, but definitely, that Gordon Chan’s stance in the Defamation Action would constitute a valid basis for such accusation. Similarly for the staff. In this sense, Samson Chan’s interest in the Probate Action would be unnecessarily compromised simply because of Gordon Chan’s stance in the Defamation Action.

(2)  Samson Chan’s own credibility may also be unnecessarily undermined because he is being advised by solicitors which would appear to have taken a personal stance in a crucial issue in the Probate Action. Samson Chan may well be put in the cross-examination that his own evidence has been gathered and presented by solicitors in a way that would obstruct the presentation of the whole picture. Again, I am not saying that Samson Chan or Gordon Chan would be lying, but there would be a valid basis for putting such suggestion to Samson Chan in the cross-examination. This would unnecessarily put Samson Chan in a difficult situation.

(3)  Leaving aside evidence, Gordon Chan may appear to want to have the Probate Action proceed all the way to a Court’s judgment where a finding of fact is made that the original Will was indeed returned to the Deceased. Such a fact-finding would significantly enhance his claim in the Defamation Action without him or the Firm spending the money and time in proving his case from scratch within the Defamation Action. Thus viewed, it appears that Samson Chan may not be able to obtain proper advice from Gordon Chan.

15.  The present situation, insofar as conflict of interest is concerned, is similar to Au Leung Shuet Hung v Au Wing Lun, HCA 1954/2011, 20 December 2011. In that case, the 1^st defendant was a solicitor, a consultant of the 2^nd defendant. The background concerned the estate of the 1^st defendant’s father. In a will executed in 2002, the 1^st defendant’s daughter, but not the 1^st defendant, was a beneficiary. However, in a will executed in 2008, the 1^st defendant, but not his daughter, was a beneficiary, executor and trustee of the estate. Therefore, while it would be in the daughter’s interest to propound the 2002 will, it would not be in the 1^st defendant’s interest. Despite this conflict of interest, the 1^st and 2^nd defendants acted for the 1^st defendant’s daughter in applying against the administrator pendente lite for funds to finance her education. Therefore, the plaintiffs applied for an injunction restraining the defendants from acting for the 1^st defendant’s daughter on the ground of conflict of interest between the 1^st defendant’s interest and his daughter’s.

16.  The 1^st defendant’s daughter deposed that she was fully aware of “the allegations of conflict between her and her father… and the allegations of abuse by her father”, but she confirmed her intention to engage the 1^st and 2^nd defendants to act for her despite the conflict. DHCJ Louis Chan accepted her evidence (§27). Further, insofar as the plaintiffs there argued that the proceedings would not be conducted in a just and fair manner as a result of the defendants’ legal representation of the daughter, his Lordship did not think (§29) it sufficient to grant an injunction. Finally, insofar as there would be a possibility that the 1^st defendant would have to give evidence and this would breach the rule that an advocate should not give evidence, his Lordship took the view that given the daughter’s engagement of an independent barrister as her advocate, the 1^st defendant would not be an advocate and there would be no issue of an advocate giving evidence (§30). The application for injunction was refused.

17.  In my view, the Court must take a strict approach on what constitutes valid consent in such circumstances because not only solicitors are fiduciaries to their clients, their proper representation is a crucial part of the administration of justice. Therefore, in my view, for a client properly to consent to a firm’s representation and advising despite the firm’s conflict of interest, the consent must be informed; in other words, the client must be properly advised before giving any such consent. Proper advice must include the nature of the conflict of interest and how the circumstances give rise to the conflict, so that the client would reasonably understand his position if the solicitors would continue to represent and advise him. It is, in my view, not sufficient for the client to say something like “even if there is any conflict”, he would still give the consent. If he says so, he simply is giving consent to something he does not really appreciate; such consent is not true consent.

18.  The present case is thus distinguishable from Au Leung Shuet Hung v Au Wing Lun in one material aspect, namely, the daughter there made an informed choice, fully aware of the conflict of interest, while here, however, there is no evidence at all on whether Samson Chan has been fully advised of the conflict as mentioned above. In particular, in the present case, there is no evidence that Samson Chan has been fully or at all advised of this conflict of interest, real or potential. On the contrary, in their respective affirmations, they both say that they do not notice any conflict against Samson Chan if the Probate Action and the Defamation Action are proceeding in parallel. In relation to Samson Chan, he still says so after consulting independent legal advice according to his affirmation. Samson Chan goes on to say in the affirmation that even if there is any conflict of interest between Gordon Chan and him, he would still engage the Firm to act for him, and he would in any event engage an independent barrister as an advocate for him to protect his interest.

19.  That said, in my view, absence of informed consent does not necessarily lead to grant of injunction. Absence of informed consent just means that it is not a good defence to a claim of conflict of interest, and so there is a serious issue to be tried at the very least, despite my doubt on whether the Plaintiff, never a client of the Firm, has any right against the Firm based on the Guide. The Court should consider also the balance of convenience including whether prejudice would be caused to the applicant for injunction as a result of the opponent’s uninformed choice of legal representative. This I will do later in this Decision, after I deal with the Plaintiff’s another ground – breach of confidential information.

VI.  CONFIDENTIAL INFORMATION

20.  In relation to conflict of interest, in the Statement of Claim, the Plaintiff also avers that:-

“34. The parties contemplated a mediation for the Probate Action on 14 June 2024. However, due to Gordon Chan’s commencement of the Defamation Action, the resulting risk of prejudice against the Plaintiff – stemming from Gordon Chan’s access to confidential or privileged information in the Probate Action – his conflict of interest and the subsequent impasses, the parties were unable to proceed with the mediation or any further action in the Probate Action.

39. As aforementioned, the Defamation Action is still ongoing, therefore, on 17 December 2024, the Plaintiff’s solicitors by way of letter proposed that the mediation of the Defamation Action be conducted after hearing of the present Injunction Summons.

51. It is unlikely that any meaningful without prejudice talks or mediation could be proceeded [with] in the Probate Action if Gordon Chan continues to represent Samson Chan and receives privileged communications and information that could then be used against the Plaintiff.

53. As a result [of the conflict of interest], there is a real risk that the information obtained by the Firm from the Probate Action will be used against the Plaintiff [in the Defamation Action]. Alternatively, information received by the Firm from the Defamation Action may be passed over and used against the Plaintiff in the Probate Action if the situation continues. The ongoing and escalating risk of misuse of confidential information prejudices the Plaintiff’s position and hinders a fair resolution of both actions.

56. In light of the aforementioned, the Firm and Gordon Chan in their roles/capacities and involvement in the Probate Action and Defamation Action – are causing real prejudice to the Plaintiff:

PARTICULARS OF REAL PREJUDICE CAUSED TO THE PLAINTIFF

…

(e) The Firm’s conflict of interest is significantly exacerbated by their conduct, access to the Plaintiff’s confidential information, Gordon Chan’s dual roles, and the interconnected nature of the actions, resulting in substantial prejudice to the Plaintiff…”

21.  As a result of the Plaintiff’s concern, no mediation in the Probate Action has taken place.

A.  Legal principles in relation to cases where privileged information is disclosed by opponent in mediation or without prejudice negotiation

22.  The submissions by Mr Au Lut Chi (leading Ms Kyra P.S. Kung), counsel for the Plaintiff, are focused on the confidential information that would be received by the Firm. For the relevant legal principles, he refers me to an English Court of Appeal case Glencairn IP Holdings Ltd v Product Specialities Inc (CA) [2021] Ch 201.

23.  In that case, the solicitors firm in question had previously represented a defendant to a claim commenced by the plaintiff, and the defendant and the plaintiff had a failed mediation, but eventually settled the matter. Subsequently, the plaintiff commenced a claim against other persons. Those other persons were represented by the same solicitors firm, although by a different individual solicitor of the firm. The plaintiff contended that there was a risk that information such as its negotiating position and the terms of settlement would be disclosed by the firm to those other persons (§11). The firm gave an assurance that there would be an information barrier such that no confidential privileged information disclosed in the course of the earlier proceedings would be communicated to the team acting for those other persons. The plaintiff was not satisfied with such an assurance, and applied for an injunction restraining the firm from acting for those other persons.

24.  In his judgment (with which Arnold and David Richards LJJ agreed) upholding the first instance judge’s refusal to grant an injunction, Flaux LJ held, in summary:-

(1)  One end of the spectrum is former client cases. In such cases, a fiduciary relationship between a solicitor and his client arises, in the context of which the privileged confidential information was obtained, and the solicitor would remain subject to the strict duty of confidentially. In such cases, the Court is more ready to grant an injunction to restrain the solicitors from representing a client in favour of whom the solicitors may disclose the information of the former client, unless the solicitors show that there is no risk of disclosure or prejudice. This was the approach applied by Lord Millett in Bolkiah [1999] 2 AC 222 (§§66-67).

(2)  At the other end of the spectrum is cases where there is no prior relationship at all but the solicitors, in representing their client, come into possession of the privileged information disclosed to them by the client’s opponent or the opponent legal representatives. In such cases, the Court would usually grant an injunction restraining the solicitors from misusing the information. (§68)

(3)  “[C]ases… where there has been disclosure to the opposing solicitors firm of privileged confidential information during a mediation or settlement discussions in previous litigation where the firm acted for the opponent against the current applicant [for injunction], lie somewhere in the middle of the spectrum.” (§70)

(4)  In such cases in the middle of the spectrum, there is no true fiduciary relationship between the firm and the applicant. In such cases, “the applicant and his legal advisers will have chosen to share privileged information with his opponent and the opponent’s legal advisers during the course of a mediation or settlement discussions.” (§75)

(5)  Following from (4) above, therefore, “[w]hilst the opponent and his legal advisers cannot use the privileged information other than for the purposes of the mediation or settlement discussions, they have not received it in a fiduciary capacity.” (§75)

(6)  In such cases lying in the middle of the spectrum, in terms of injunctive relief:-

(a)  “If, for whatever reason, the information is misused and/or openly disclosed or there is some threat that it will be, the remedy of restraining the opponent and his legal advisers from misusing the information is usually sufficient protection.” (§75)

(b)  “If the applicant wishes to obtain wider injunctive relief such as sought in this case, the burden of establishing that such relief is necessary should be on the applicant as it would be in the general law of confidentiality, without what might be described as presumptions in favour of the applicant such as apply under the strict Bolkiah test.” (§75)

25.  I note that in §§77 and 78, Flaux LJ had a brief discussion on a Court of Appeal of New Zealand case Carter Holt [2001] 3 NZLR 343 and a New South Wales Court of Appeal case Worth Recycling [2009] NSWCA 354. In essence, Flaux LJ thought that those cases adopted or appeared to have adopted Bolkiah test even in non-former client cases, and his lordship thought that those cases did not represent the English law in such cases. Suffice to say that Mr Au (for the Plaintiff) does not cite these cases in his List of Authorities and instead asks me to adopt Flaux LJ’s judgment. On such basis, I considered Flaux LJ’s discussion on those two non-English cases. With no disrespect to the panels in Carter Holt and Worth Recycling, the English law as identified by Flaux LJ is, in my view, more principled and provides more flexibility with which the Court can decide proportionately with more reference to specific circumstances. Therefore, I respectfully adopt the English law here to be the Hong Kong law.

26.  I also agree with the following comments from Conflict of Interest (6^th ed) at §9-016 on Glencairn as common sense:-

(1)  “[W]here the information imparted in the first matter is such that it will be impossible for the individual to put it out of their mind… it may be that the court will grant an injunction restraining the individuals from acting.”

(2)  “[I]f the court considers that grounds exist for making an order restraining the individuals from acting, and there is insufficient barrier within the firm, it is possible that such an order [to restrain the whole firm from representing the client in question] could be made.”

27.  In my view, the burden lies on the applicant to prove (1) and (2), given that it is the applicant’s application. But like in all cases, the Court will assess the evidence (as well as the absence of evidence) from both parties to determine whether the applicant discharges the burden of proof.

B.  Quia timet injunction

28.  As mentioned above, in the present case, no mediation has taken place. Nor is there any plea of without prejudice negotiation. Thus, it is clear that the Plaintiff’s concern, from the Amended Statement of Claim and from his evidence as well as submissions, is that the Firm would use the information the Plaintiff would impart in the mediation or without prejudice negotiation. The injunction the Plaintiff is applying for is thus a quia timet injunction.

29.  The principles are set out by Linda Chan J in §26 of Re Jutal Offshore Oil Services Limited [2021] HKCFI 1503:-

“(1) Where the Court is satisfied that the defendant is about to commit a misfeasance, or that a wrongful act is imminent, the Court has jurisdiction and power to grant a quia timet injunction to restrain the wrongful act or misfeasance which is imminent but has not yet commenced, if it is necessary and just so to do.

(2) The plaintiff has the burden of proving that it is reasonably certain that what the defendant is threatening and intending to do will cause imminent and substantial damage to him.

(3) The criterion by which the degree of probability of future injury must be established depends on all the relevant circumstances and are not fixed. The greater the prejudice or inconvenience that may be caused by the apprehended injury (if it occurs), the more readily will the Court intervene despite uncertainties and deficiencies of proof.

(4) In ascertaining that probability, one of the most important indications of the defendant’s intentions is ordinarily found in his own statements and actions.

(5) Even in the absence of an express threat, the actions of the defendant may give a sufficiently clear indication of an intention to act unlawfully, and if the defendant has undertaken not to commit a breach, that is an evidentiary matter that weighs against the need for an injunction.

(6) Likewise, even if there is no express threat, it may be of importance that the defendant has stated that it is within his rights to do the particular acts complained against…” (emphasis added)

C.  Threat of misuse of information

30.  In the Probate Action, all the parties (including the Plaintiff and Samson Chan) already agreed to a mediation to take place on 14 June 2024, as pleaded in §34 of the Amended Statement of Claim quoted above and evidenced by the correspondence produced before me. However, by letter dated 14 May 2024 issued to the Firm (after the Plaintiff filed her Amended Defence on 9 May 2024 in the Defamation Action), the Plaintiff’s solicitors stated that the Plaintiff could not proceed with the mediation because of (1) the conflict of interest; and (2) the risk and prejudice of disclosure of confidential information obtained by the Firm in ongoing without prejudice communications, arising from Gordon Chan’s Defamation Action. Although the Plaintiff’s letter of 14 May 2024 came late, on the evidence before me, I see no other reason than the Firm’s representation of Samson Chan as the reason for the Plaintiff’s refusal to proceed with the agreed mediation.

31.  Assuming the Firm continues to represent Samson Chan, if the Plaintiff is to proceed with the agreed mediation meaningfully, the Plaintiff would have at least to disclose her negotiating position and the terms she would be willing to settle on. Pausing here, the Firm contends that the Plaintiff has never identified what confidential information it is said to be confidential or privileged. In my view, such contention is more pedantic than real – it is clear from the pleadings and evidence that the information in question includes information to be disclosed in mediation. Information disclosed in mediation, by nature, must at least include the Plaintiff’s negotiating position and the terms she would be willing to settle on. Although there is room for particularisation of such information in the Statement of Claim or evidence, I find that the Firm, as a firm of solicitors, must have appreciated from the Statement of Claim what type of information it is by its very own nature.

32.  Since the issue of the whereabouts of the original Will is a live issue in the Probate Action, the Plaintiff’s negotiation position and the terms are bound or at least very likely to touch this issue one way or the other. Such information would very likely be useful to Gordon Chan as to how to pursue the Defamation Action against the Plaintiff.

33.  The Firm contends that there is no evidence of any threat that the Firm would misuse such information. While there is no direct evidence of such threat, in my view, from the following matters, I infer that there is such a threat:-

(1)  Gordon Chan is the Firm’s handling partner of the Probate Action. For the Probate Action, he is the Firm. Any such information disclosed in the mediation will be imparted to Gordon Chan.

(2)  Gordon Chan himself is the Plaintiff in the Defamation Action, and he is represented by the Firm there. With such information, the risk that he would use such information, whether subconsciously or not, to inform how he should pursue the Defamation Action or otherwise, is real.

(3)  In response to the Plaintiff’s concern about the disclosure of confidential information, the only reply from the Firm is not in any correspondence, not in the Defence, but only in the Affidavit of Gordon Chan who is the only deponent for the Firm in the present application. However, he only said that the Plaintiff did not identify the confidential information and reserved the right to file further evidence, and there is no conflict of interest. As I have found above, the Firm, and thus he, must have appreciated from the Statement of Claim what type of information it is by its very own nature. The Firm’s choice (through Gordon Chan by his affidavit) not to address this suggests that the Firm does not or cannot deny such real risk, but in the light of such real risk, the Firm chooses not to take any steps to address it. The Firm’s such stance is consistent with §24 of the Plaintiff’s 2^nd Affirmation, to which the Firm has not seen any need to apply for leave to reply.

(4)  The threat arises in this sense – the Firm has its eyes wide-opened to such real risk without taking any steps to address it, and instead still deposes in the affirmation evidence there is no conflict.

34.  In the circumstances, I find that there is at least a good arguable case for the Plaintiff against the Firm. I adopt the threshold of a good arguable case instead of a serious issue to be tried because the interlocutory injunction the Plaintiff now seeks is effectively in terms of the injunctive relief the Plaintiff seeks in the Statement of Claim.

VII.  BALANCE OF CONVENIENCE

35.  In terms of balance of convenience, the starting point is, as quoted in Conflict of Interest, supra, §9-014:-

“It is a serious matter to prevent a party from retaining the legal representative of its choice, particularly upon the application not of a former client but of an adverse party.”

36.  From this starting point, according to Glencairn at §75 (as quoted above), the usual remedy should be an injunction to restrain the Firm from using such information. However, in my view, it is simply impossible for Gordon Chan, the handling partner of the Probate Action on behalf of the Firm, to put the information out of his mind when he is pursuing his own Defamation Action. This is in fact a situation where the other client in the other action is the individual solicitor himself, not like a situation where the solicitor may at least be able to shut his mouth from advising his client on certain matters. For this reason, I find that any implied or express undertaking from the Firm not to misuse the information is meaningless as infeasible to enforce. Therefore, the present case is the situation mentioned in Conflict of Interest, supra, where “it will be impossible for the individual to put it out of their mind” (quoted above), and thus an injunction restraining Gordon Chan is warranted.

37.  However, the present action and application is not against Gordon Chan, but the Firm. The question is thus, based on Conflict of Interest, supra (quoted in §26 above), whether “there is insufficient [information] barrier within the firm”.

38.  In this regard, there is no evidence of, and no evidence of any attempt to set up, any information barrier. On the contrary, as mentioned above, in response to the Plaintiff’s concern about the disclosure of confidential information, the only reply from the Firm is not in any correspondence, not in the Defence, but only in the Affidavit of Gordon Chan. However, he only said that the Plaintiff did not identify the confidential information and reserved the right to file further evidence, and there is no conflict of interest. As I have found above, the Firm, and thus he, must have appreciated from the Statement of Claim what type of information it is by its very own nature. It is thus the Firm’s own choice not to put any evidence before me as to any information barrier.

39.  Further and in any event, even if I assume that he did not adduce any such evidence because he genuinely failed to appreciate the type of information that would be involved, it is clear from his affidavit that he insists upon being the handling solicitors of the Probate Action, repeating that he himself has no conflict of interest in the matter, which, however, is not true, and which is still the position taken by the Firm before me during the hearing.

40.  Based on §§38 and/or 39 above, I find that there is insufficient information barrier within the Firm.

41.  In addition to the above factors on the balance in favour of a grant, I also find that although Samson Chan consents to the Firm acting for him in the Probate Action despite the conflict of interest and despite his right to lawyers under the Basic Law, when considering the balance of convenience, I bear in mind Samson Chan’s consent being uninformed and Samson Chan’s probable benefit from a firm free of conflict of interest. While he may have to incur extra time and costs in retaining a new firm of solicitors, it is fortunate that the Probate Action has not gone beyond the close of pleadings. Therefore, any extra time and costs should be relatively acceptable and in my view, the gain from a firm free of conflict may well outweigh the extra time and costs. Further, if the grant is found to be unnecessary at the end of the trial, both the Firm and Samson Chan would be covered by the Plaintiff’s undertaking in damages not only to the Firm but also to Samson Chan.

42.  A grant would also facilitate the agreed mediation in the Probate Action, which the Court always encourages especially in disputes among family members.

43.  For the sake of completeness, I have considered whether it would be sufficient simply to restrain the Firm from representing and advising Samson Chan in relation to mediations and without prejudice negotiations. However, this clearly is infeasible, artificially separating the Firm into a team for litigation only and a team for mediation and negotiation, while clearly, information obtained by one team would be useful to the other.

44.  In the circumstances, I find that the balance of convenience lies in favour of a grant.

VIII.  SUPERVISORY JURISDICTION

45.  In addition to the above usual jurisdiction for the Court to grant an interlocutory injunction and a quia timet injunction, Mr Tim C.H. Yu, counsel for the Defendant, fairly points out that the Court has a supervisory jurisdiction over solicitors. As Rogers JA said in Nishimatsu-Costain-China Harbour Joint Venture v Ip Kwan & Co [2001] 1 HKLRD 84 at 92G-I:-

“As regards the present proceedings, I apprehend that the jurisdiction of the court to remove from the record solicitors who have a conflict of interest stems from the fact that solicitors are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction.” (emphasis added)

46.  A similar dicta, with which I agree and which I think is equally applicable to solicitors, was found in the English Court of Appeal case Geveran Trading Company Ltd v Skjevesland [2003] 1 WLR 912 at §42 in relation to advocates.

47.  Such jurisdiction is exceptional and must be exercised with appropriate caution: see Unity Profit Ltd v Lee Ching Lam [2020] HKCFI 2889 at §23(1) per DHCJ MK Liu.

48.  In my view, in exercising such exceptional jurisdiction, it is not necessary for the applicant to establish any cause of action as in normal civil actions. Bearing in mind that this jurisdiction is exceptional and the jurisdiction is for the purpose of the administration of justice, I think that the test should be:-

(1)	(a) whether the continuing representation would clearly hinder the administration of justice;
	(b) any ordinary firm as a new representation would clearly further the administration of justice; and
(2)	if so, where the balance of convenience lies.

49.  The exercise of such exceptional supervisory jurisdiction would infringe the parties’ right (though not absolute) to choose their own legal representatives, and thus, the infringement should be proportionate. In my view, the proportionality is achieved by the qualification of “clearly” for achieving the legitimate purpose of “the administration of justice” and by the “balance of convenience”. Further, the Court should be extremely rarely concerned about the quality of the legal representation as a ground relating to the administration of justice, because otherwise, one may find it more ready to make such applications to vex the opponent’s legal representatives.

50.  In my view, in the present case, due to the conflict of interest and the risk of breach of confidentiality of information obtained in mediation and without prejudice negotiations, and in particular in the light that because of the Plaintiff’s legitimate concern of such risk, no meaningful mediation or settlement negotiation could proceed, the Firm’s representation of Samson Chan is clearly contrary to the administration of justice.

51.  In such circumstances, representation of Samson Chan by any ordinary firm, in my view, would eliminate such risk, and so the likelihood of parties’ mediation or negotiation would significantly enhance, while subject to the extra time and costs which Samson Chan would incur, any ordinary firm could represent him, given that the Probate Action does not involve any issues in which the Firm or only a few firms are particularly specialised. So, representation of Samson Chan by any ordinary firm would clearly further the administration of justice.

52.  For the balance of convenience, I repeat §§35-44 above.

53.  In the circumstances, I would also exercise this exceptional supervisory jurisdiction as an independent ground to grant the interlocutory injunction

IX.  SPEEDY TRIAL

54.  The Firm proposes a speedy trial in the event that I would grant the interlocutory injunction. I do not see where the urgency lies. There is no difficulty for Samson Chan to look for alternative solicitors. There is no evidence that the Firm would suffer any other prejudice than loss of earnings on fees, which is covered by the Plaintiff’s undertaking in damages. So, I do not find it appropriate to order any speedy trial.

X.  CONCLUSION

55.  Based on the above, I make the following order, upon the Plaintiff’s undertaking mentioned in §41 above:-

(1)  The Defendant, whether by its partner Gordon Chan or other partners, associates or other staff, shall be restrained from representing and advising Chan Man Lung Samson in HCAP 14/2023, until the outcome of the trial or further order of the court.

(2)  The Plaintiff’s costs shall be in the cause.

It remains for me to thank Mr Au (leading Ms Kung), counsel for the Plaintiff and Mr Yu, counsel for the Defendant, for their assistance.