301
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Surely Mr. A. G. M. Fletcher cannot forget the interview, that both Mr. Williamson and myself attended up at his office in the Colonial Secretariat Building. The meeting, at which the inadvisability of both parties carrying on with the legal proceedings, already instituteil by us, was brought up where it was pointed out to us, the futility of incurring huge mutual legal obligations: and where it was suggested, that in view of the early departure for Home of Mr. A. G. M. Fletcher, we should leave all proceedings in abeyance until his return, and that in the interim an adjustment might possibly take place.
Government protected itself by Ordinance," is untrue.
There is no object for me to make any untrue statements, as no possible good would ever result therefrom, nor do I desire to associate myself with any such means to attain my ends. And, I will again state that the result of this interview was the means of the legal proceedings being held up, and such facts are in written existence in Hongkong to-day.
At that interview there was no whisper, intention, or warning placed before Mr. Williamson or myself that an Ordinance and the Eventual Indemnity Act of 1922, would be set into operation during Mr. Fletcher's absence at Home, but such really was the case, and it came into operation and full force shortly after his return to the Colony.
The coincidence and the connection were remarkable, and still even in face of this, I still believe and contend that Mr. Fletcher was at that meeting, acting in entire good faith towards us, but that all the same the subsequent inauguration of the Indemnity Act of 1922, was started almost. immediately afterwards with a view to block our claim and crumple our legal proceedings.
Both Mr. Williamson and myself, took the guidance of Mr. Fletcher at the interview in entire good faith and acted upon same by suspending our legal proceedings forthwith."
In short, these statements are to the effect that, inmediately after legal proceedings were commenced, Mr. Fletcher approached the owners with a request for the stay of such proceedings with a view to an amicable settlement; and the words used are capable of being understood as conveying a suggestion that Mr. Fletcher deliberately proposed the stay in order to give the Hongkong Government time to prepare the Indemnity Ordinance.
36. The accuracy of these statements by Mr. Moller and Mr. Burkill may perhaps be called in question.
There is first the use of the word "immediately", with its obvious inference that the legal proceedings caused Mr. Fletcher or the flongkong Government some perturba- tion. Mr. Moller rightly says that the proceedings were commenced in December, 1919, and he has supplied the date of Mr. Fletcher's alleged request in the passage beginning Surely Mr. A. G. M. Fletcher cannot forget the interview". The interview took place on the the 23rd August, 1920, and Mr. Moller's "immediately" resolves itself into a period of more than eight months.
C
The second point is the statement that Mr. Fletcher approached the owners with a view and a request to stay proceedings. Mr. Fletcher did not approach the owners. The owners approached him. The evidence on this point is as follows:-
Mr. Fletcher to the Hon. Mr. E. H. Sharp, K.C., Counsel for the Hongkong
Government: 24th August, 1920.
"Moller and Williamson tell me that Turner from Deacon's office represented to them yesterday that you were anxious to get on with the Wollóirra case immediately. I had seen Moller and Williamson yesterday before Turner came to them and we agreed informally that it would be better to let the matter stand over in order that there might be opportunity for consider- ation of certain cases which were now pending at home".
Crown Solicitor to Messrs. Deacon, Looker, Deacon, and Harston: 25th August, 1920:-
"Wollowra Steamship Co. v. Attorney General.
77
With regard to Messrs. Moller and Williamson's proposal to the Colonial Secre-
tary that this case should stand over".
Minute by the Attorney General: 1st June, 1921 :-
"As a matter of fact the arrangement was made at the request of the plaintiffs, and I remember that I felt some difficulty about agreeing because there was always the possibility that Mr. Fletcher might not return and he is the only person who knows anything about the facts".
Crown Solicitor to Messrs. Deacon, Looker, Deacon, & Harston, 6th June, 1921 :—
"I would remind you that the arrangement that the action should stand over
was me at the request of your clients ".
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Messrs. Deacon, Looker, Deacon, & Harston to Crown Solicitor, 7th June, 1921 : --
We think that the arrangement referred to, although actually made at our clients' request, was in fact and was so understood by both sides) a mutual agreement for the mutual benefit of both sides as Mr. Fletcher and Mr. Williamson were, at the time that the arrangement was made under- stood to be about to leave the Colony ".
In "The humble perition of Messrs. A. R. Burkill & Sons of Shanghai, Messrs. Moller & Co. (Shanghai) Limited of Shanghai" and others, dated the 17th June, 1921, the following statement appears "Ou the 25th August, 1920, the Government con- sented to the case being postponed ".
Mr. Fletcher concurs that the arrangement, though proposed by the owners, was mutual. A representation was made to him that certain actions, involving similar claims against the Imperial Government, were pending at home, and he entirely agreed with Mr. Moller and Mr. Williamson that it would be a mere waste of money for the owners to proceed with their case in Hongkong, when it appeareil possible that the matter in dispute would shortly be settled at home, at the expense of litigants in the Courts in London.
The third point is the suggestion that, in agreeing to the stay of proceedings, Mr. Fletcher had some information regarding the intention of the Goverment to pass. an Indemnity Ordinance, which he concealed from the owners.
Messrs. Deacon, Looker, Deacon, & Harston wrote to the Crown Solicitor on the 7th June, 1921 :---
"We do not know whether the Government had the present proposed Orddj- nance in mind when this arrangement for the stay of proceedings) was If it had, disclosure thereof should have been made."
come to.
The Crown Solicitor replied on the 16th June, 1921 :---
"When the above arrangement was made last August, the Government had no Indemnity Ordinance of any kind in contemplation and had never considered the question of introducing an Indemnity Ordinance.”
The first proposal for an Indemnity Ordinance came from the Secretary of State for the Colonies in a circular despatch, dated the 28th December, 1920, which reached Hongkong on the 13th February, 1921. Mr. Fletcher left the Colony for England on the 1st January, 1921, and on that late neither he nor the Government had contemplated any question of an Indemnity Ordinance The Governor wrote to the Secretary of State on the 27th November regarding the legal proceedings which had been commencol, and he made no suggestion of any possibility of a solution by means of an Indemnity Bill. The circular despatch of the 28th December, 1920, is the opening document on the file dealing with the proposal for an ordinance.
Mr. Fletcher arrived in England at the end of February, 1921, and, on a date which The cannot recall, he was informed at the Colonial Office of the circular despatch, and his opinion was invited. He referred to the arrangement for the stay of legal proceedings
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