羅慧萍 v. 保誠保險有限公司

HCA 1424/2017
[2018] HKCFI 113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1424 OF 2017

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Before: Deputy High Court Judge Marlene Ng in Chambers

Date of Hearing: 17 January 2018

Date of Handing Down Decision : 23 January 2018

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DECISION

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I.  PLAINTIFF’s CLAIM

1.The defendant (“D”) was an insurance company, and the plaintiff (“P”) was the holder of insurance policy no 000010236139 (“Policy”) with D.

2.P claimed that in/about 15 January 2010 she bought the Policy under 「倍豐盛」退休入息計劃 from 英國保誠保險有限公司(“UK保誠”) by signing the proposal. According to the projection by UK保誠under 〈預期回報率〉at 242%, the non-guaranteed cash values, ie 〈預期期滿回報〉, in the sum of HK$2,021,158 would be payable upon maturity of the Policy after 25 years (“25年後約滿”). Since 25 April 2012, 「倍豐盛」退休入息計劃 was re-named 「倍豐盛」計劃 (Double Treasure Plan). On 2 October 2013, UK保誠 declared that its business would be transferred to D.

3.P claimed D was in breach of contract and “剝削我21年”:

(a) In the initial 3 years under the Policy, P and UK保誠 abided by their contract and there was no unhappy incident.

(b) P alleged that in 2013 (ie after UK保誠transferred its business to D), D considered〈預期期滿回報〉(which in any event was non-guaranteed) in the sum of HK$2,021,158 too favourable to P, and secretly reduced〈預期期滿回報〉to about HK$1,200,000 in the computer record, and thereby made savings of about HK$800,000 for D. P claimed she was given the above information by D’s顏萍萍 on 17 October 2013.

(c) P claimed that in January 2014 D mailed the 4^th anniversary statement, ie〈年結〉, which showed 〈預期期滿回報〉was only HK$1,240,228 that was about HK$800,000 less than HK$2,050,022 projected for the year before. P claimed the 4^th anniversary statement was a false statement, and D failed to produce information to prove it had any relation to the 3^rd anniversary statement.

(d) Although the Policy term was 25 years, when at the 4^th anniversary P discovered D secretly took HK$800,000 away from her, she asked to cancel the contract/Policy and declined to pay further premium, but D borrowed money on her behalf to pay the premium and forced her “留下來繼續接受低回報”.

4.P claimed she instructed solicitors to help her “離開” D, but her solicitors did not give her proper assistance and were in breach of professional conduct, so she made complaint to the Hong Kong Law Society and on 20 February 2017 she commenced DCCJ789/2017 against them.

5.On 29 April 2017, P’s son passed away.

6.P alleged that D for its own benefit and in bad faith committed breach of contract, dishonestly made up false anniversary statement, secretly took away money from her account, on the pretext of “經濟差” refused to cancel the Policy and thereby “強迫我留在[D]受21年剝削”, and used dark means (手段陰暗) to persecute her directly or indirectly for 21 years, which persecution had adverse effect on her:

(a) P had lost her peaceful retirement life, and had to spend time and money to deal with such persecution．

(b) P believed (i) D colluded with her solicitors who were accomplices in the plot against her, (ii) her solicitors had been “bought” to remain silent and to keep secret for D, and (iii) her solicitors together with their own legal representatives acted in concert against her.

(c) Whilst P focused on dealing with D’s breach of contract and consequent litigation, her family was torn apart and she lost her son, which was a blow to her. P claimed she bought the Policy for protection, but instead it caused her harm, so the so-called protection was a lie.

7.For the above reasons, on 16 June 2017, P commenced the present action against D by issuing the Writ of Summons with Statement of Claim endorsed thereon for the following reliefs: (a) cancellation of the Policy, (b) return of premium paid in the sum of HK$604,444.24, (c) damages for breach of contract in the sum of HK$10,000,000 or such sum as the court may order, (d) costs, and (e) interest.

II.  PROCEDURAL HISTORY

8.On 29 June 2017, D by its solicitors filed Acknowledgment of Service giving notice of intention to defend.

9.On 5 July 2017, D’s solicitors sent a letter to P that enclosed D’s 5-page Request for Further and Better Particulars of the Statement of Claim dated 16 June 2017 that was dated 5 July 2017 (“FBP Request”), and asked P to provide the requested particulars within the next 14 days, failing which D would apply to the court for an order compelling provision of the same by P. According to the affirmation of service filed on 28 July 2017, D’s solicitors on 5 July 2017 served the aforesaid letter and FBP Request dated 5 July 2017 on P by leaving the same at P’s address for service (“Address”).

10.On 6 July 2017, D’s solicitors sent a letter to P that enclosed the FBP Request, and requested P to provide the requested particulars within the next 14 days, failing which D would apply to the court for an order compelling provision of the same by P. According to the affirmation of service filed on 28 July 2017, D’s solicitors on 6 July 2017 served the aforesaid letter and FBP Request on P by posting the same to the Address.

11.P did not provide D with any answers to the FBP Request.

12.On 25 July 2017, D by its solicitors filed a summons (“1^st Summons”) to apply for the following order: (a) P do within 7 days from the date of the Order to be made therein file and serve on D Answers to the FBP Request “as attached thereto”, and (b) P do pay D the costs of such application. As evident from (a) above, a copy of the FBP Request was attached to the 1^st Summons.

13.According to the affirmation of service filed on 28 July 2017, D’s solicitors on 25 July 2017 served the 1^st Summons by leaving the same at the Address, and also by leaving the same in the letterbox at the Address.

14.On 26 July 2017, D by its solicitors filed a summons (“2^nd Summons”) to apply for the following order: (a) D do have 14 days from the service on D of the Answers to D’s FBP Request “as attached to [D’s] Summons dated 25^th day of July 2017” (ie the 1^st Summons) or determination of the 1^st Summons, whichever would be later, to file and serve its Defence and Counterclaim (if any), and (b) costs of such application be provided for.

15.According to the affirmation of service filed on 28 July 2017, D’s solicitors on 26 July 2017 served the 2^nd Summons by leaving the same at the Address, and also by leaving the same in the letterbox at the Address.

16.At the hearing of the 1^st and 2^nd Summonses on 31 July 2017, P was absent. At such hearing, Master Chow granted the following order (“31/7/17 Order”):

(a) P do within 21 days from the date of service of the 31/7/17 Order file and serve on D her Answers to D’s FBP Request “annexed hereto” (“P’s Answers”);

(b) D do have 14 days after the service of P’s Answers to file and serve its Defence and Counterclaim (if any);

(c) time does not run during the court’s summer vacation;

(d) P do pay D’s costs of the 1^st Summons summarily assessed at HK$800 payable forthwith; and

(e) costs of the 2^nd Summons be in the cause.

17.On 7 August 2017, D by its solicitors filed sealed copy of the 31/7/17 Order, and a copy of the FBP Request was annexed to such sealed copy order.

18.According to the affirmation of service filed on 16 October 2017, D’s solicitors on 8 August 2017 served the 31/7/17 Order by leaving the same at the Address, and also by leaving the same in the letterbox at the Address.

19.P did not file or serve P’s Answers to D’s FBP Request as ordered by the court pursuant to the 31/7/17 Order.

20.On 27 September 2017, D by its solicitors filed a summons (“3^rd Summons”) to apply for an order that (a) unless within 14 days from the date of service of the order to be made P would file and serve on D P’s Answers to D’s FBP Request “in compliance with the Order of Master Chow dated 31 July 2017” (ie the 31/7/17 Order), P’s Statement of Claim be struck out and the present action be dismissed with costs to be taxed and paid by P to D, and (b) P do pay to D costs of such application.

21.Both P and D’s solicitor attended the hearing of the 3^rd Summons on 18 October 2017. At such hearing, Master K Lo granted the following order (“18/10/17 Order”):

(a) “unless within 21 days from the date hereof, the Plaintiff files and serves on the Defendant her Answers [ie P’s Answers] to the Defendant’s Request for Further and Better Particulars of the Plaintiff’s Statement of Claim dated 5 July 2017 [ie FBP Request] in compliance with the Order of Master Chow dated 31 July 2017 [ie 31/7/17 Order], the Plaintiff’s Statement of Claim be struck out and this action be dismissed with costs to be taxed and paid by the Plaintiff to the Defendant” (“Unless Order”);

(b) D shall file a copy of its FBP Request within 3 days of this Order (“Filing Order”); and

(c) P do pay to D costs of such application summarily assessed at HK$800 payable forthwith.

22.On 18 October 2017, in compliance with the 18/10/17 Order, D filed a copy of its FBP Request dated 5 July 2017.

23.On 2 November 2017, D by its solicitors filed a sealed copy of the 18/10/17 Order.

24.On 8 November 2017, P filed and served her “回覆書” (“P’s Reply”). In P’s Reply, she stated it was almost 5 months after the commencement of the present action, “但仍未進入案情”, and D’s solicitors had given her “0個存了檔的文件, 1個未存檔的文件: 7月5日, 3個傳票: 7 月25日、26日, 9月27日, 2個命令: 7月31日, 10月18日”. Plainly, P acknowledged she had received D’s FBP Request dated 5 July 2017 (which document was not filed with the court), the 1^st, 2^nd and 3^rd Summonses filed on 25 July, 26 July and 27 September 2017, and the 31/7/17 and 18/10/17 Orders dated 31 July and 18 October 2017.

25.Quite irrespective whether or not D’s FBP Request was filed or when it was filed, upon receipt of the 31/7/17 Order, P must have known she had been ordered by the court to file and serve P’s Answers to the FBP Request (which was annexed to the 31/7/17 Order) within the prescribed time, which she failed to do. Further, by being present at the hearing of the 3^rd Summons and hearing Master K Lo orally grant the 18/10/17 Order, P must have known she was ordered by the court pursuant to the Unless Order to file and serve P’s Answers to D’s FBP Request dated 5 July 2017 in compliance with the 31/7/17 Order within the specified period, failing which the sanction prescribed thereunder would become automatically effective. Such Unless Order compelled compliance by P irrespective whether or not the FBP Request was filed or when it was filed.

26.Quite simply, D’s FBP Request dated 5 July 2017 as annexed and referred to in the 31/7/17 Order had merged with and became part and parcel of (a) the 31/7/17 Order that compelled P to file and serve P’s Answers to such FBP Request, and (b) the 18/10/17 Order that required P to comply with the 31/7/17 Order to serve P’s Answers to such FBP Request. Indeed, plain reading of the 18/10/17 Order showed the Unless Order was not dependent on the Filing Order.

27.P’s Reply went on to claim:

(a) the 5 summonses and orders (ie the 1^st, 2^nd and 3^rd Summonses, 31/7/17 Order and 18/10/17 Order) was fraudulent in that (i) when D’s solicitors served D’s FBP Request dated 5 July 2017 (which document was not filed with the court) requiring P to provide P’s Answers they knew the court registry would not have let her file any document as it was not yet her turn (“未輪到我”), and (ii) since 25 July 2017 D’s solicitors purported to dress up D’s FBP Request (which document was not filed with the court) with summonses and orders to bring the matter to court and “借法官‘殺’人”;

(b) at the hearing on 18 October 2017, Master K Lo ordered D’s solicitors to file D’s FBP Request dated 5 July 2017 within 3 days, but such filed copy was never served on P; and

(c) P refused to pay “冤枉的罰款, 任由這奸險女人處置吧”.

28.On 10 November 2017, D’s solicitors sent their letter to the clerk to Master K Lo with copy to P (“10/11/17 Letter”). By such letter, D’s solicitors referred to the 18/10/17 Order and pointed out that P’s Reply “woefully fails to address any of the queries raised in [D’s FBP Request] at all, and [D] remains completely in the dark as to what the particulars of [P’s] claim against them are. [P’s] assertion that [D] has failed to comply with the [18/10/17 Order] has no basis, as [D] had duly complied with the filing of [D’s FBP Request] into Court (in accordance with paragraph 2 of the [18/10/17 Order]) on 18 October 2017. As such, [P] is in default of the [18/10/17 Order] and we enclose herein a draft Order for this Court’s approval”. The draft order was for giving effect to the sanction under the Unless Order.

29.On 14 November 2017, P replied by letter to D’s solicitors (“14/11/17 Letter”), and claimed she then came to know D’s FBP Request dated 5 July 2017 “改邪歸正了” as it was filed on 18 October 2017. She claimed D had 2 versions of the FBP Request, ie the one dated 5 July 2017 and the one filed on 18 October 2017, but agreed the 2 versions contained the same requests but “給人的觀感是一邪一正”. P alleged that the version dated 5 July 2017 that had not been filed “是一件害人之物”, that D’s solicitors “用傳票/命令將它送上法庭, 不停逼害。我恨之入骨”, and that she had given a truthful reply in P’s Reply. Since the version filed on 18 October 2017 was a filed document, had it been served on P, P claimed she would have treated it as a serious legal document, and would have considered she had an obligation to render a proper and truthful reply, so the situation of “…… [D] remains completely in the dark ……” would not have occurred. On such basis, P claimed:

“6. 你們想知答案, 給我一份「10月18日版」即可。

7. 因此, 我不認為你們「搞撤訴」有勝算。”

30.On 16 November 2017, upon being satisfied there was default in compliance of the Unless Order under the 18/10/17 Order, Master K Lo ordered that (a) P’s Statement of Claim be struck out, (b) the present action be dismissed, and (c) costs of the present action (including costs of such application) be taxed and paid by P to D forthwith (“16/11/17 Order”).

31.On 18 November 2017, P filed a summons (“P’s Summons”) to seek relief against sanction in respect of the 18/10/17 Order.

32.On the same day, P filed her affirmation in support of P’s Summons (“P’s 1^st Aff”) in which she stated:

(a) D’s solicitors served on P D’s FBP Request dated 5 July 2017 (that had not been filed) to ask P to provide P’s Answers thereto, but D thereafter used various summonses/orders to compel her to provide P’s Answers, “害我被罰款”, but the court registry “不會讓我入檔, 於是亦交不出‘回覆’”.

(b) P noted paragraph 1 of the 18/10/17 Order (ie the Unless Order, see paragraph 21(a) above) “指定要我寫關於「7月5日文件」” (ie D’s FBP Request dated 5 July 2017), and claimed P’s Reply was a truthful statement.

(c) The document index of the court file in the present action (“Court File Index”) showed P filed her Statement of Claim on 16 June 2017, so “輪到對方入文件”.

(d) On 14 November 2017, P replied to D’s solicitors as set out in paragraph 29 above.

(e) D’s solicitors failed to disclose to the court that D’s FBP Request dated 5 July 2017 had not been filed, “一直在濫用傳票/命令, 欺騙和利用法庭, 去處理檔案以外的事情”.

(f) It was standard practice for court document to be served on the other party after it was filed, but initially D’s solicitors served but failed to file the FBP Request, and later after the FBP Request was filed D’s solicitors failed to serve the same on P, which failures resulted in unnecessary confusion.

(g) P took a different view from D’s solicitors who kept D’s FBP Request hidden after it was filed, “一切推給「7 月5日版」”, but such 5 July 2017 version was “邪版(害人之物)” whilst the 18 October 2017 version was “正版(嚴肅的法律文件)”. P further claimed D’s solicitors tricked her with the 5 July 2017 version, and although the 5 July 2017 version was defective, D’s solicitors alleged P failed to give P’s Answers and sought to strike out her claim and dismiss the present action. In this respect, P questioned why D’s solicitors kept the 18 October 2017 version hidden from her.

(h) P urged the court to review the 16/11/17 Order and let the present action continue.

33.At the hearing of P’s Summons on 8 December 2017 attended by P and D’s solicitor, Master S Lo dismissed P’s Summons and ordered P to pay D costs of such application summarily assessed at HK$800 payable forthwith (“8/12/17 Order”).

III.  APPEAL

34.On 20 December 2017, P filed Notice of Appeal against the 8/12/17 Order to seek relief against sanction imposed by the 18/10/17 Order (“Appeal”).

35.On the same day, P filed her affirmation in support of the Appeal (“P’s 2^nd Aff”). In P’s 2^nd Aff, P stated that at the hearing on 8 December 2017 Master S Lo dismissed P’s Summons and asked her to seek legal advice. But P had already approached the Resource Centre for Unrepresented Litigants on 23 November 2017 and had been advised to seek relief against sanction in respect of the 18/10/17 Order. P complained the 18/10/17 Order was defective because the Filing Order showed D’s FBP Request dated 5 July 2017 as referred to in the Unless Order had not been filed. P claimed that consequently the Unless Order was defective because (a) “我沒責任去理會檔案以外的東西, 可是法庭逼我去回覆” and (b) “法庭有權去管「未存檔的東西」嗎?”, and the Filing Order was also defective in that it only provided for D’s FBP Request to be filed but made no provision for a filed copy to be served on P, which led to the unfair result of striking out P’s Statement of Claim when D had never served a filed copy of its FBP Request that was filed on 18 October 2017.

36.In P’s 2^nd Aff, P claimed both D and Master K Lo were responsible for such unfair result as (a) D used summonses to bring D’s FBP Request dated 5 July 2017 (which document was not filed with the court) to the court without disclosing that it was not filed, so Master K Lo granted the Unless Order in ignorance of such fact, and (b) Master K Lo adopted different standards vis-à-vis P and D in that the Unless Order required P to file and serve P’s Answers but the Filing Order only required D to file the FBP Request. “其實, 只要對方把文件副本送過來, 我自有法律責任去回覆, 根本不需要用到「法庭命令」。整件事就是缺了這關鍵的一步。” P also urged the court to review the matter of costs.

37.The Appeal came before me for hearing on 17 January 2018 (“Hearing”).

IV.  LEGAL PRINCIPLES

38.It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[1]

V.  PROCEDURAL MATTERS

39.The matters in P’s 2^nd Aff were in effect P’s submissions in respect of the Appeal. Ms Tsui, solicitor for D, had no objection for P to rely on P’s 2^nd Aff at the Hearing, and I grant leave for such purpose.

40.On the eve of the Hearing, D’s solicitors lodged with the court and served hearing bundle, chronology of events, written skeleton submissions and list of authorities (collectively, “D’s Documents”). The appeal was set down with hearing time for 10 minutes. Given the lateness of D’s Documents and to avoid adjournment of the Hearing, Ms Tsui agreed not to deploy and use any of D’s Documents, and she merely made oral submissions at the Hearing.

VI.  DISCUSSION

41.P raised a number of complaints of defective procedure that led to her Statement of Claim having been struck out and the present action having been dismissed with costs.

42.First, P claimed D’s FBP Request dated 5 July 2017 was not filed, and hence this court had no jurisdiction over such request and she could safely ignore the same. In my view, it is entirely correct for D to initially make its request for further and better particulars of P’s Statement of Claim by way of letter without filing the same. Order 18 rule 12(6) of the Rules of the High Court (“RHC”) provides as follows:

“Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made.”

43.Indeed, Jacob & Goldrein, Pleadings: Principles and Practice, states as follows:[2]

“…… The application should first be made by letter, otherwise the court may refuse to order particulars to be served.

Only then – by order  If the request is not complied with or refused, …… he may then apply to court for an order for further and better particulars. ……”

44.The rationale for such provision in the procedural rules is plain and simple. If a party makes a request for further and better particulars of pleadings by letter (that was not to be filed) and the other party complies with such request and provides the particulars sought, then the matter can be resolved without any application to the court, and thus save time and costs. Hence, if the applicant fails to make such request for particulars initially by letter to the other party and applies directly to the court, he runs the risk of the court refusing to order the other party to file and serve the particulars sought, or at the very least he may fail to obtain costs for such application.

45.In the circumstances, D was entirely correct in taking the initial step of making its FBP Request dated 5 July 2017 under cover of its solicitors’ letters dated 5 and 6 July 2017 without filing any document with the court.

46.Secondly, there was no dispute P did receive D’s FBP Request dated 5 July 2017 (that was not filed) under cover of letters by D’s solicitors. P admitted as much in P’s Reply, the 14/11/17 Letter, P’s 1^st Aff and P’s 2^nd Aff (see paragraphs 24, 29, 32(a) and (g) and 35 above). P also admitted that despite having received D’s FBP Request dated 5 July 2017, she did not provide P’s Answers thereto within 21 days because she considered she had no duty to bother with a document that was not filed (see paragraph 35 above).

47.Thirdly, in such circumstances and as explained in Pleadings: Principles and Practice in paragraph 43 above, it was entirely legitimate for D to file the 1^st Summons to compel P to file and serve P’s Answers to D’s FBP Request dated 5 July 2017, a copy of which was annexed to the 1^st Summons, and the 1^st Summons with the FBP Request annexed thereto was actually filed with the court. Order 18 rule 12(3)-(3A) of the RHC provides as follows:

“(3) The Court may order a party to serve on any other party particulars of any claim …… or other matter stated in hispleading ……, and the order may be made on such terms as the Court thinks just.

(3A) The Court may make an order under paragraph (3) upon the application of a party ……”

Master Chow exercised her discretion to grant the 31/7/17 Order directing P to file and serve P’s Answers to the D’s FBP Request dated 5 July 2017 within the prescribed time, and a copy of such FBP Request dated 5 July 2017 was annexed to the sealed copy of the 31/7/17 Order that was filed on 7 August 2017 (see paragraph 17 above). As such, D’s FBP Request dated 5 July 2017 (even though not filed as an individual document) became part and parcel of an order of the court, ie the 31/7/17 Order. Such sealed copy order (with copy FBP Request annexed thereto) was served on P (see paragraph 18 above). The suggestion that D purported to dress up D’s FBP Request by way of the 1^st Summons in order to bring the matter to the court and “借法官‘殺’人” could not be supported.

48.In such circumstances, D’s FBP Request dated 5 July 2017 was annexed to the 1^st Summons and 31/7/17 Order, both of which were filed with the court and served on P. It was evident from P’s Reply, the 14/11/17 Letter and P’s 1^st Aff that P admitted she did receive the 31/7/17 Order (see paragraphs 24, 27(a), 29 and 32(a) above). As explained in paragraph 25 above, P must have known from the 31/7/17 Order and D’s FBP Request dated 5 July 2017 annexed thereto that quite irrespective whether or not such FBP Request as an individual document was independently filed with the court, she was compelled under court order to file and serve P’s Answers to the FBP Request annexed to the 31/7/17 Order within the prescribed time. But she failed to do so.

49.Fourthly, P claimed the court registry would not have let her file P’s Answers to D’s FBP Request dated 5 July 2017. I reject such contention. The very essence of the 31/7/17 Order was to compel and require P to file with the court registry and serve on D’s solicitors P’s Answers to D’s FBP Request dated 5 July 2017.

50.Fifthly, P suggested the court registry would not have allowed her to file P’s Answers because it was not her turn to do so. Such argument was premised on P’s belief that since she had filed her Statement of Claim on 16 June 2017, it was D’s turn to file its Defence, and it was not yet her turn to file any document. I find such argument misconceived. In fact, the 31/7/17 Order provided that D would have 14 days after service of P’s Answers to file and serve its Defence and Counterclaim (if any) (see paragraph 16(b) above), which meant that the time for D to file its Defence and Counterclaim (if any) was deferred until 14 days after P filed and served P’s Answers to D’s FBP Request pursuant to the 31/7/17 Order. Thus, it was P’s turn to file and serve P’s Answers before it was D’s turn to file its Defence and Counterclaim (if any).

51.Sixthly, since P failed to file and serve the requested further and better particulars (ie P’s Answers) pursuant to D’s FBP Request dated 5 July 2017 under the 31/7/17 Order, D was justified in filing the 3^rd Summons to seek an “unless” order to compel P to comply with the 31/7/17 Order. P seemed to be under a misapprehension that D’s 3^rd Summons was unjustified as it was premised on D’s FBP Request dated 5 July 2017 that had not been filed with the court. Actually, the 3^rd Summons was premised on (a) the 31/7/17 Order being an order of the court and (b) P’s failure to comply with such court order. As explained in paragraphs 25-26 above, by virtue of the terms of the 31/7/17 Order, D’s FBP Request dated 5 July 2017 had merged with and became part and parcel of such court order. The suggestion that D purported to dress up D’s FBP Request by the way of the 3^rd Summons to bring the matter to the court and “借法官‘殺’人” had no merits.

52.Seventhly, Master K Lo granted the 18/10/17 Order (including the Unless Order and Filing Order). Given P’s failure to file and serve P’s Answers pursuant to the 31/7/17 Order, it was appropriate for Master K Lo to exercise her discretion to grant the Unless Order to compel P to file and serve P’s Answers in compliance with the 31/7/17 Order within the prescribed time, failing which P’s Statement of Claim would be struck out and the present action be dismissed with costs. The Unless Order for P to comply with the 31/7/17 Order of which D’s FBP Request was part and parcel (as explained in paragraphs 25-26 and 47-48 above) was quite irrespective of (a) the Filing Order which only required D to file D’s FBP Request dated 5 July 2017 within 3 days and (b) the fact that D was not required under the Filing Order to serve and hence did not serve on P a filed copy of D’s FBP Request (but actually the very same document was served on P under cover of the letters of D’s solicitors dated 5 and 6 July 2017 and as annexure or attachment to the 1^st Summons and 31/7/17 Order as P recognised in the 14/11/17 Letter) (see paragraphs 9-10, 12-13, 17-18 and 29 above).

53.Eighthly, it was said that D failed to inform the court D’s FBP Request dated 5 July 2017 as an individual document had not been filed. I disagree the court was unaware of such fact. It was apparent on the court file that D’s FBP Request dated 5 July 2017 was not so filed until 18 October 2017 pursuant to the Filing Order (see the Court File Index referred to in paragraph 32(c) above). The affirmation of service filed on 28 July 2017 made clear that D’s FBP Request dated 5 July 2017 was served on P under cover of the letters by D’s solicitors dated 5 and 6 July 2017 (see paragraphs 9-10 above). The 1^st Summons sought an order for P’s Answers to D’s FBP Request “as attached thereto”, and the 31/7/17 Order directed P to file P’s Answers to D’s FBP Request “annexed thereto”. But, as explained in paragraphs 42-45 above, it was entirely correct for D to initially make its FBP Request by letter, and then to seek a court order upon non-compliance.

54.Ninthly, P claimed P’s Reply was honest and truthful. But quite irrespective whether or not P honestly believed the contents of P’s Reply, such contents were plainly not P’s Answers being pertinent answers to the each and all of the requests made in D’s FBP Request as required under the 31/7/17 Order and under the Unless Order in the 18/10/17 Order. P’s Reply were merely P’s observations on and criticisms of D’s FBP Request dated 5 July 2017, the 1^st, 2^nd and 3^rd Summonses and the 31/7/17 and 18/10/17 Orders, which clearly were not compliance of the 31/7/17 Order as required under the Unless Order. In such circumstances, on expiry of the prescribed time under the Unless Order on 8 November 2017, P was in default and the sanction became automatically effective, which justified the entry of the 16/11/17 Order.

55.Tenthly, P complained that the Filing Order was defective in that it only called for D to file D’s FBP Request within 3 days, and that the Filing Order did not sit well with the Unless Order. I am not persuaded by such arguments. Quite simply, the Filing Order was independent of P’s court-ordered obligations under the Unless Order which stemmed from non-compliance of the 31/7/17 Order (with D’s FBP Request annexed thereto, which was part and parcel of the terms of such order) that had been served on P. The Filing Order only concerned D, and D had complied with such order by filing its FBP Request on 18 October 2017. Whether or not a filed copy of D’s FBP Request dated 5 July 2017 as filed on 18 October 2017 was again served on P was irrelevant because the Unless Order did not call for P to comply with D’s FBP Request filed on 18 October 2017, but such order required P to comply with the 31/7/17 Order to file and serve P’s Answers to D’s FBP Request annexed thereto. In circumstances, P’s various complaints in paragraphs 27(b), 29, 32 and 35-36 above that drew a distinction between D’s FBP Request dated 5 July 2017 and D’s FBP Request filed on 18 October 2017, and P’s further complaint in paragraph 36(b) above that drew a distinction between the Unless and Filing Orders had no merits.

56.Eleventhly, since the 31/7/17, 18/10/17 and 16/11/17 Orders stemmed from P’s failure to comply with D’s FBP Request dated 5 July 2017, 31/7/17 Order and 18/10/17 Order respectively, the provision for costs in favour of D against P in such orders were plainly correct, and I see no basis to overturn the same.

57.Twelfthly, Order 2 rule 4 of the RHC provides that:

“Where a party has failed to comply with a …… court order, any sanction for failure to comply imposed by the …… court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.”

The Unless Order prescribed that P must file and serve P’s Answers on or before 8 November 2017 (ie within 21 days from the date of the 18/10/17 Order), but notwithstanding P’s Reply, P was in default by 8 November 2017, so P should have applied for relief against sanction within 14 days, ie on or before 22 November 2017. P’s Summons was issued on 28 November 2017, so P was out of time. P did not seek such extension of time in P’s Summons, but even if she did, it would not have assisted her as I am not persuaded there were merits for the substantive application for relief against sanction (see paragraphs 58-60 below).

58.Thirteenthly, even if time had been extended for P to seek relief against sanction, whether she should be granted such relief would be governed by the considerations in Order 2 rule 5 of the RHC which provides as follows:

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule or court order, the Court shall consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure to comply;

(e) the extent to which the party in default has complied with other rules and court orders;

(f) whether the failure to comply was caused by the party in default or his legal representative;

(g) in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h) whether the trial date or the likely trial date can still be met if relief is granted;

(i) the effect which the failure to comply had on each party; and

(j) the effect which the granting of relief would have on each party.

(2) An application for relief must be supported by evidence.”

59.Plainly, the court has discretion to grant relief against sanction, but the onus is on the applicant to adduce evidence upon which such exercise of discretion in his favour may be founded. The relevant evidence that P filed was found in P’s 1^st and 2^nd Affs. I have explained the relevant legal principles as to (a) the nature of an “unless order” and (b) the exercise of discretion to grant or refuse relief against sanction in Lee Sai Nam v Li Shu Chung & anor,[3] which I adopt but will not repeat here.

60.On the above analysis, the default was caused by P and there was no good reason for her failure to comply with the Unless Order. P had received and was aware of D’s FBP Request dated 5 July 2017, the 31/7/17 Order (with such FBP Request annexed thereto) and the Unless Order under the 18/10/17 Order, but chose not to comply. She insisted on being served with a filed copy of the FBP Request that D filed on 18 October 2017 before she would even contemplate compliance by filing and serving P’s Answers when she well knew such FBP Request filed on 18 October 2017 made the same request for particulars under the 31/7/17 and 18/10/17 Orders. This was evident from the 14/11/17 Letter even after she was aware that D by its solicitors had applied to court by the 10/11/17 Letter to give effect to the sanction in the Unless Order to strike out her Statement of Claim and to dismiss the present action with costs (see paragraph 29 above). Such stance was reiterated in P’s 1^st and 2^nd Affs (see paragraphs 32 and 36 above). There was no suggestion by P that she would now comply with the 31/7/17 and 18/10/17 Orders, or as to how soon she would comply by filing/serving P’s Answers. No draft P’s Answers were provided to the court at the Hearing. Rather, it was said P could comply had she been served with a filed copy of D’s FBP Request filed on 18 October 2017, but since she was not so served she would not do so. There was no real effort made in good faith to comply with the Unless Order, and there was no suggestion that she was unable to comply with the same. I am convinced P’s non-compliance was deliberate and intentional. Although no milestone dates would be affected if relief were to be granted, I cannot ignore the fact that due to P’s recalcitrance, the matter of D’s FBP Request and P’s Answers had taken more than 4 months, and D had been put to trouble and cost of various applications to the court. In the circumstances, having considered all the circumstances (including all the factors in Order 2 rule 5(1) of the RHC and the overall administration of justice), I am not persuaded I should grant relief against sanction.

VII.  CONCLUSION

61.In the circumstances, the Appeal is dismissed. There is no reason why costs should not follow event. I therefore grant a costs order nisi that P shall pay D’s costs of and occasioned by the Appeal to be taxed if not agreed.

62.Should P require translation of this Decision into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Decision to her at the High Court Building at a mutually convenient time.

The plaintiff acting in person and present

Ms A Tsui, of Hogan Lovells, solicitors for the defendant