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This article was co-authored by Joshua Chu from ONC Lawyers.
There is an old English saying, “manners maketh man”. It essentially means that manners make us human and without manners, we cease to be humans. The role of good manners in law (especially in contentious matters) cannot be emphasised enough!
This is an especially important principle in the context of the legal profession wherein an ever-hyper-competitive environment (as evident from education to practice), manners are often time the only thing maintaining any semblance of civility between the competing parties.
In this connection, both the Judiciary and the Law Society have put in place various mechanisms in an attempt to maintain civility and curb belligerence, namely, the Practice Directions as published by the Chief Justice (which has placed an emphasis on cooperation between opposing parties) and the Solicitors’ Guide (SG 11.01 which expressly prohibits rude and discourteous behaviour)
PREAMBLE—THE TOXIC EFFECTS OF THE LEGAL PROFESSION’S COMPETITIVE ENVIRONMENT
In situations such as contentious litigations (in which the stakes are high and litigants’ emotion is often spilt over to the practitioner), without a firm hand (and self-control) to guide the course of court proceedings, the uncontrolled emotion of opposing parties may inevitably cause a case to quickly descend into a state of chaos, thus causing unnecessary losses that will be suffered by all stakeholders– intentional or otherwise (ranging from parties themselves, the Court and eventually the greater public).
Given the circumstances, whilst not fully appreciated by many practitioners, the good manners of practitioners do in fact play a dual role of both protecting their client’s interest as well as keeping order in the judicial systems. As illustrated in the Patrick Wang Ho Yin case below, hot-headed behaviours, whilst feeling good on hindsight, are never a good idea!
During the pre-Civil Justice Reforms era, a ‘macho’, ‘tough’ and ‘aggressive’ litigators may be prized by lay-clients. However, with the implementation of the Civil Justice Reforms (CJR), ‘macho’, ‘tough’ and ‘aggressive’ litigators may end up causing more harm to their clients than nought. Willingness to reconcile and compromise is, therefore, the new king in litigation. The recent Patrick Wang Ho Yin cost order is the perfect illustration of such a reality.
THE ROLE THAT THE CIVIL JUSTICE REFORMS PLAYED IN DETOXIFYING THE ENVIRONMENT
Whilst the Civil Justice Reforms are most celebrated for the creation of a more efficient court system, one of its shining achievement lies in fact in that it aims to readjust Hong Kong’s litigation culture into a less adversarial and more harmonious landscape.
The publication of various practice directions and training with the aim of helping parties to reconcile, rather than jumping the gun and litigate enshrines such achievement.
For an instance, whilst the Practice Directions that prescribes that opposing litigation solicitors are to corporate with each other rather than act belligerently every step of the way may be seen as having the primary aims to maintain order in proceedings, what is not sufficiently appreciated is the fact that where opposing litigators are willing to cooperate, it creates the foundation for collaborative discussion potentially leading to dialogue amongst their respective clients. Thus, achieving the indirect effect of slowly changing the parties’ course by way of adjusting their attitudes towards one another.
Similarly, the Solicitors’ Guide provides that practitioners must “at all times maintain his personal integrity and observe the requirements of good manners and courtesy towards other members of the profession and their staff, no matter how bitter the feelings between clients. He must not behave in a manner which is acrimonious or offensive or otherwise inconsistent with his position as a solicitor.”
Practitioners should, therefore, bear in mind the rationale for the existence of such rules, not merely obeying without thinking.
THE COURT’S PROACTIVENESS IN REGULATING PARTIES’ CONDUCT
To give the aforesaid rules, practice directions and guidelines effect, the Courts in Hong Kong will attempt to maintain a measure of control by way of cost sanctions.
In this connection, whilst indemnity cost orders are usually imposed upon a party under the following four circumstances, namely:
unmeritorious application;
taking out a summons maliciously;
failing to achieve advantageous outcome; and
wasted costs.
However, in the case of Wang Ho Yin Patrick v Fu Chun Lung & Ors.[1], a separate indemnity cost order was imposed against Mr Wang (who was his own solicitor) for failing to act courteously/ and work with his opposing solicitor (details below).
Accordingly, this case illustrates the court’s favour towards the policy of manners maketh solicitor and illustrates how poor manners of solicitors may too lead to the imposing of indemnity cost orders against them.
CASE ILLUSTRATION: THE PATRICK WANG HO YIN COST ORDER
The severe consequences of failing to adhere to cordial and cooperative practices were recently highlighted in the case of Wang Ho Yin Patrick v Fu Chun Lung & Ors[2], where, due to Mr Wang’s heavy-handed practices (both as his own solicitor at Huen & Partners and litigant-in-person in his own case), Mr Wang Ho Yin Patrick was ordered by the Court to pay:
“all costs wasted as a result of the unnecessary separate compiling of Bundle C (Correspondence Bundle) by the Defendant’s Solicitors be borne by the Plaintiff’s Solicitors personally on an indemnity basis, such costs to be taxed if not agreed, with certificate for counsel.”
The above Indemnity Cost Order was made before the parties even exchanged their respective arguments on the day of the hearing, which only serves to elucidate the Court’s disapproval of Mr Wang’s conduct. This was also a separate indemnity cost order from the one subsequently handed down on March 21, 2018.
Factual Matrix: Mr Wang Ho Yin Patrick’s Hopeless Application
As mentioned, the plaintiff, Mr Wang Ho Yin Patrick was playing the dual role as handling solicitor and plaintiff in person. Mr Wang was also the applicant of his fateful summons of July 31, 2017 which has been described by the Court as:
“At the hearing before me on 9 February 2018, P’s counsel… despite her gallant efforts in arguing what I would describe as a completely hopeless application on behalf of P, had to concede halfway through her arguments that there was no real substance in the application at all. She had wisely advised her lay client/solicitor to withdraw the Summons after a short adjournment was sought and instructions are taken in the middle of the hearing.”
Whilst a completely meritless and hopeless application would alone attract indemnity cost order, the manner and conduct in the way Mr Wang conducted his own case caused the court to impose a completely separate indemnity cost order against Mr Wang personally (Mr Wang being both lay client and solicitor) which illustrated how Mr Wang’s ‘macho’, ‘tough’ and ‘aggressive’ behaviour ultimately only served to exponentially aggregate his losses.
FACTUAL MATRIX: MR WANG HO YIN PATRICK’S OBJECTIONABLE BEHAVIOUR
The aforesaid indemnity cost order was imposed directly as a result of two acts of Mr Wang, namely, unreasonably refusing to collaborate with opposing solicitors to jointly prepare the hearing bundles and unrepentant attitude that he had displayed towards such behaviour at the subsequent hearing.
Example One: Unreasonably refusing to prepare the Hearing Bundle
It is trite law that the burden of preparing the bundles rests squarely on the applicant (i.e. Mr Wang) as Paragraph 3(4) of Practice Direction 5.4 explicitly provides that “Unless otherwise agreed with the other parties, the applicant or appellant shall have the responsibility for the physical compilation of the hearing bundles, dramatis personae and chronology.”
Mr Wang has refused to prepare a separate bundle for Correspondences even though D1’s solicitors informed Mr Wang of the need given the specific requirement in Paragraph 4(3) of Practice Direction 5.4. Instead:
Mr Wang elected to state that a “separate bundle for correspondences is not necessary” but would not seek costs for D1 preparing such a bundle which only re-affirms D1’s position that such a bundle is necessary;
Further amendments proposed by D1 to be in line with Practice Direction 5.4, for example, to add the pleadings in the Bundle of Court Documents was again not complied with; and
Despite three reminders from the solicitors of D1 on requesting a reply on their amendments and fresh engrossment of the draft index prepared by Mr Wang, these requests were not entertained by Mr Wang.
Simply put, Mr Wang had elected to abuse his position as an applicant and arbitrarily decide what is to be included in the hearing bundles (i.e. only putting in items that were only agreeable to Mr Wang/support Mr Wang’s case).
The problem in the present scenario is that the exercise of collaboration between parties’ solicitors was meant to be a joint effort that may lay the groundwork for dialogue, not merely to create hearing bundles. By refusing the most basic form of collaboration, Mr Wang’s belligerent attitude in effect prevented any forms of dialogues, such conduct of which the Court found highly objectionable.
Example Two: Arrogant and Oppressive Attitude
Ultimately, upon reaching the date of the hearing, Mr Wang was criticised by the presiding judge as having acted ‘arrogantly’ by refusing to collaborate.
Mr Wang’s utter refusal to liaise or negotiate with his opponent was condemned by the Court as unbecoming behaviours and was therefore held as having flagrantly breached the Practice Directions which, as rightly pointed out during the hearing, is not merely meant to be used as a guideline.
The court emphasised once more that practice direction and prescription for good conduct (which is required pursuant to the Solicitors Guide) is to be obeyed by parties’ solicitors.
Given the non-compliance by Mr Wang on this matter, he was penalised in costs following Paragraph 30 of Practice Direction 5.4, and for this instance, “on an indemnity basis… with certificate for counsel”.
Again, it is to be noted that this indemnity cost order is a separate indemnity cost order that was subsequently imposed upon Mr Patrick Wang Ho Yin in which Mr Wang was required to pay the
TAKE AWAY POINTS
This case serves as a reminder for litigation solicitors to always remember:
Seek Opportunities to Cooperate and Collaborate! As solicitors, we are expected to filter away the negative emotion of the parties (though this proved difficult for Mr Wang who was acting in the dual role as litigant and his own solicitor) and cooperate with the other side, which, if properly observed, may very well be the foundation of a positive dialogue as between the parties!
Obey the Practice Directions! Far too often the Practice Directions was taken as mere ‘guidelines’ and was not abided by litigants (and in this case even the applicant-practitioner). The purpose of the joint-preparation of hearing bundles was not for an applicant to decide what they liked, but instead, was an opportunity to cooperate.
Act cordially and observe the requirements of good manners and courtesy towards other members of the profession. Macho behaviours are often mistakenly interpreted by lay-clients as a practitioner attempting to ‘fight’ for their client’s interest (in Mr Wang’s case – his own personal interest). Such behaviour, however, whilst may have been tolerated in the pre-CJR era, is no longer acceptable today.
Mr Wang Ho Yin could have avoided the indemnity cost orders made against him personally (as he was his own solicitor) had he only been willing to act in a more rational manner with a less adversarial attitude.
His oppressive conduct would see him being slapped with yet another indemnity cost order[3]. The moral of the story is that manners matters, especially in litigation! Whilst good manners carry good benefits (i.e. reconciliation between the parties), bad manners, on the other hand, may carry real-life consequences (i.e. indemnity cost order).
Therefore, always remember, manners maketh solicitors, otherwise you might be imposed with a Patrick Wang Ho Yin Cost Order.