MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

Because no claim of privilege was asserted by the only parties who could waive it (the named executor or the administrator pendente lite), and because parts of an attendance note containing evidence of attesting witnesses fall within the exception to legal professional privilege, the court ordered FKC to provide a...

Source-derived case information.

Citation
[2022] HKCFI 2736
Parties
1st Plaintiff: MAK NGUN TAI (麥銀娣); 2nd Plaintiff: MAK LAI PING (麥麗萍); 3rd Plaintiff: MAK MEI WA (麥美華); 1st Defendant (executor): FUNG MING IP (馮明業); 2nd Defendant: MAK NGAN LAI (麥銀麗); Respondent (firm of Solicitors): FORD, KWAN & COMPANY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 September 2022
Case Number
HCAP37/2015
Procedural Posture
Probate Action / Case Management Conference; Summons for Third Party Discovery in Chambers
Outcome
Order for partial disclosure and preservation of original; costs allowed on indemnity basis but assessed and reduced; defendants' attendance costs disallowed.
Legal Topics
Testamentary Capacity, Undue Influence, Disclosure, Third Party Discovery, Attendance Notes, Waiver of Privilege
Source Language
en
Probate Law Civil Procedure Evidence Law Legal Professional Privilege Costs Testamentary Capacity Undue Influence Disclosure +3 more

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Parties

MAK NGUN TAI (麥銀娣)

1st Plaintiff

MAK LAI PING (麥麗萍)

2nd Plaintiff

MAK MEI WA (麥美華)

3rd Plaintiff

FUNG MING IP (馮明業)

1st Defendant (executor)

MAK NGAN LAI (麥銀麗)

2nd Defendant

FORD, KWAN & COMPANY

Respondent (firm of Solicitors)

Procedural Posture

Probate Action / Case Management Conference; Summons for Third Party Discovery in Chambers

Legal Issues

  1. 1 Whether the Relevant Attendance Note is protected by legal professional privilege
  2. 2 Whether any part of the attendance note falls within the exception for evidence of attesting witnesses
  3. 3 Who has the authority to waive privilege in relation to the Deceased's documents

Ratio Decidendi

Because no claim of privilege was asserted by the only parties who could waive it (the named executor or the administrator pendente lite), and because parts of an attendance note containing evidence of attesting witnesses fall within the exception to legal professional privilege, the court ordered FKC to provide a copy of the Relevant Attendance Note to the Plaintiffs and Defendants and to preserve the original until expiry of the appeal period or further order; costs were allowed to FKC on an indemnity basis but assessed and reduced to $46,400 to be borne in the first instance by the Plaintiffs, ultimate costs in the cause.

Court Disposition

Order for partial disclosure and preservation of original; costs allowed on indemnity basis but assessed and reduced; defendants' attendance costs disallowed.

Orders

  • FKC to provide a copy of the Relevant Attendance Note (class 3) to the Plaintiffs and the Defendants
  • FKC to preserve the original of class 3 (the Relevant Attendance Note) until after expiry of the period for appeal against the final judgment in this case or until further order, whichever is later