A war of words waged in correspondence between two solicitors' firms has spilled into court after one firm alleged the other defamed it. It is believed to be the first time in Hong Kong that an action has been brought alleging material contained in solicitors' correspondence during the course of litigation was libellous. It also is thought there has been no similar case in Britain. In an open letter dated November 2, 1994, Victor Chu & Co wrote to Roger S. K. Kwong and Co: 'We believe that no reasonable court would fail to see through this lame excuse you put up to excuse your tardiness in filing evidence in answer of the summons.' The letter continued to accuse Roger S. K. Kwong and Co of being 'intellectually dishonest' in saying it would not give Victor Chu & Co requested information, until it had seen what its own client wanted. The firm of Roger S. K. Kwong told the Court of First Instance yesterday that the statement had adversely affected its reputation after the letter was included in court documents and read by other parties - a trainee solicitor in Roger S. K. Kwong and Co, the clients and counsel and judges. Mr Roger Kwong, who appeared in the Court of First Instance to represent his firm, told Mr Justice Michael Hartmann that the letter was covered by qualified privilege, rather than absolute privilege. Absolute privilege protects statements such as those made in open court or the legislature from defamation actions. Qualified privilege is a defence against defamation providing, among other things, there is no malice. Mr Kwong argued that absolute privilege should not extend to solicitors because they were not placed before a court to speak to a judge and jury. 'He [a solicitor] is sitting behind a desk with air conditioning . . . so he is very careful in drawing up the letter,' he said. But counsel for Victor Chu and Co, Anderson Chow, argued that if inter-party correspondence between solicitors was subject to liability, firms would find it difficult to discharge their duty. 'If a statement like this can give rise to actions of liability, one would have to watch every step that takes place in the interest of the client,' he said. But Mr Justice Hartmann said the purpose of yesterday's hearing was not to rule on whether the material was defamatory or protected by absolute privilege. He said he had to decide whether the correspondence occurred in the course of legal proceedings. If the letter was part of legal proceedings, then the defence of absolute privilege would apply. The letters were exchanged between the two firms after a writ was issued seeking an injunction to stop a toy manufacturer from breaching copyright. After a letter of complaint was tendered by Mr Kwong shortly after the contested letter was sent in 1994, Victor Chu & Co wrote back a letter of apology. But in April last year, solicitors for Roger S. K. Kwong & Co wrote saying they had 'resurrected this matter'. The preliminary hearing continues today.