JOEL KAI THOMAS v. TAO HSIAO SHAN, ALICE

JOEL KAI THOMAS v. TAO HSIAO SHAN, ALICE

The without prejudice rule applied to the meetings; the alleged statements were protected and did not fall within the narrow exception for unambiguous impropriety because the alleged threats and admissions were, on the material, ambiguous or arguable and not manifest abuse; the court found an irresistible inference of surreptitious recording in breach of the parties' agreement which reinforced exclusion; accordingly the challenged passages and exhibit were struck out and indemnity costs awarded.

Citation
JOEL KAI THOMAS v. TAO HSIAO SHAN, ALICE
Parties
Plaintiff: Joel Kai Thomas; Defendant / Administratrix: Tao Hsiao Shan, Alice
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 September 2011
Case Number
HCMP209/2011
Procedural Posture
Probate and Administration (section 56 Probate and Administration Ordinance, Cap. 10) / Interlocutory Strike Out Application
Outcome
Offending parts of plaintiff's 2nd affirmation and exhibit struck out and expunged; defendant awarded costs on an indemnity basis.
Legal Topics
Without Prejudice Privilege, Admissions in Settlement Negotiations, Exception for Unambiguous Impropriety, Cloaking for Perjury, Strike Out, Costs (indemnity)
Source Language
EN
Civil Probate Evidence Civil Procedure Without Prejudice Privilege Admissions in Settlement Negotiations Exception for Unambiguous Impropriety Cloaking for Perjury +2 more

Case Brief

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Parties

Joel Kai Thomas

Plaintiff

Tao Hsiao Shan, Alice

Defendant / Administratrix

Procedural Posture

Probate and Administration (section 56 Probate and Administration Ordinance, Cap. 10) / Interlocutory Strike Out Application

Legal Issues

  1. 1 Whether statements in without prejudice settlement meetings are admissible as evidence of admissions
  2. 2 Whether alleged admissions fall within exception to without prejudice privilege for unambiguous impropriety (eg cloak for perjury/blackmail)
  3. 3 Whether surreptitious recording and breach of pre-meeting agreement defeats privilege

Ratio Decidendi

The without prejudice rule applied to the meetings; the alleged statements were protected and did not fall within the narrow exception for unambiguous impropriety because the alleged threats and admissions were, on the material, ambiguous or arguable and not manifest abuse; the court found an irresistible inference of surreptitious recording in breach of the parties' agreement which reinforced exclusion; accordingly the challenged passages and exhibit were struck out and indemnity costs awarded.

Court Disposition

Offending parts of plaintiff's 2nd affirmation and exhibit struck out and expunged; defendant awarded costs on an indemnity basis.

Orders

  • Strike out and expunge from the record the last sentence of paragraph 24 and paragraphs 29 to 32 of the plaintiff's 2nd affirmation and exhibit JKT-13.
  • Costs to follow the event: defendant to have her costs of the application on an indemnity basis.