区域法院以未能遵从已定计划为由撤消专业失当申索

William Tse and Edward K H Ng acted for the plaintiff in Herman H M Hui & Co v Ho Shun Miu[2023] HKDC 60, where the plaintiff (a law firm) succeeded in defending a counterclaim of professional negligence.

The defendant alleged that the plaintiff was negligent in failing to advise her rights on requesting data access based on the Personal Data (Privacy) Ordinance (Cap 486). The defendant alleged that advising, preparing, drafting of, and services incidental to, various demand letters were unnecessary or useless so much so that no reasonably competent practitioner in the position of the plaintiff would have advised the defendant to achieve the same.

The court held that the defendant was not only concerned with discovery of documents but had agreed on was a 2-stage strategy, namely to first issue the demand letters and, depending on the outcome, to next consider an application for pre-action discovery. The Court also found that the defendant declined to follow through with the two-stage strategy due to budgetary constraints, and that it was opportunistic for the defendant to invite the court to gauge the usefulness of the steps taken at the time when she terminated the retainer, when the 2-stage strategy plainly envisaged a longer time horizon, where it was expressly contemplated that the first stage (ie, the demand letters) might not yield any favourable response.

The court rejected the defendant’s counterclaim on the basis that the omission proposed by the defendant is insufficient to make out a case of negligence as the defendant has not overcome the heavy onus of proving professional negligence.

The court dismissed the defendant’s counterclaim, entered judgment in favour of the plaintiff (for outstanding fees) and awarded costs to the plaintiff of the action and the counterclaim.