Goodwell Property Management Ltd v. Lee Hung Singand Others
Read the full judgment text of DCCJ 1886/2016 on BabelCite. This District Court judgment was delivered on 29 November 2018.
1. This is a defamation action. For determination initially are the following 2 summonses:-
Cited by 1 case · Cites 5 cases
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DCCJ 1886/2016 [2018] HKDC 1455 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1886 OF 2016 ----------------------------------
---------------------------------- Before: Deputy District Judge K C Chan in Chambers (Open to Public) Dates of Hearing: 17 September, 5 and 26 October 2018 Date of Decision: 29 November 2018 ---------------------------------- DECISION ---------------------------------- 1.This is a defamation action. For determination initially are the following 2 summonses:-
2.In the circumstances explained below, both summonses were part-heard on 17 September 2018 and adjourned to 5 October 2018. In the meantime, on 28 September 2018, the defendants took out a summons to amend their Amended Defence (“Ds’ 1st Amendment Summons”) with a view to overcoming one of the plaintiff’s contentions in support of P’s Summons to Expunge. By agreement of the parties, the substantive arguments of Ds’ 1st Amendment Summons were heard on 5 October 2018 and I dismissed it with costs, with full reasons given orally then, essentially on the ground that it completely lacked the required particulars. 3.Also on 5 October 2018, having finished hearing Ds’ Discovery Summons, I made an order for discovery of some of the documents sought with 70% of the costs to be paid by the plaintiff with certificate for counsel to be summarily assessed, with reasons to be given later. P’s Summons to Expunge was again part-heard and adjourned to 26 October 2018. 4.Then on 19 October 2018, the defendants took out yet another summons to amend their Amended Defence (“Ds’ 2nd Amendment Summons”). On 26 October 2018, again by parties’ agreement, I heard the substantive arguments thereon and reserved my decision. 5.I now give my reasons for decision regarding Ds’ Discovery Summons and my decisions on Ds’ 2nd Amendment Summons and P’s Summons to Expunge. THE ACTION AND ITS BACKGROUND 6.This defamation action is connected with the management of an estate known as the Apex situated at No 33 Wo Yi Hop Road, Kwai Chung, New Territories (“the Estate”). 7.The plaintiff is a building management company. It was appointed to be the Manager of the Estate by the DMC dated 21 December 2007 and has since been acting as such. 8.All the defendants, at the material times, were residents of the Estate and, save the 1st defendant, were also then members of the Owners’ Committee of the Estate. So far as it concerns the 3rd and 5th defendants, this action was discontinued as against them at an early stage. This action since then is pursued as against the defendants. 9.This is an involved piece of litigation aggressively contested by both sides. The Amended Defence is prolix, printed in small font of 12, running up to 41 pages; while the Amended Reply is equally so at 35 pages. 10.The plaintiff claims that it was defamed by the contents of 4 letters in Chinese, respectively dated 21 January 2016, 26 January 2016, 21 February 2016 and 26 February 2016, and all published to all the owners of the Estate. 11.The parts of the 4 letters said to carry defamatory meanings are lengthy and I do not think it necessary for the purpose of this decision to set out them. Suffice to mention that the plaintiff claims that the letters have the following defamatory meanings, among others:-
12.The issues relevant to the discovery sought relate to matters pleaded by way of the defence of justification which are repeated to also support the defence of fair comment and qualified privilege. Numerous events and matters, going as far back to the time the Apex was just completed and occupancy began in late December 2007 up to the time of the publication of the 4 letters in early 2016, were pleaded in the Amended Defence as particulars of justification. 13.In gist, the origin and crux of controversies seem to be that the plaintiff on behalf of the Estate incurred large deficits in the early years, which according to the defendants were initially unexplained and later discovered to be unjustified, while the owners were asked to pay to make up for these deficits and at the same time had to pay a remuneration to the plaintiff proportionate to the amount of the total expenditure. I will go into such parts of these issues and controversies that are relevant in due course. 14.Regarding the amendments to the Amended Defence sought by the defendants and P’s Summons to Expunge, they relate to the defendants’ allegation that the plaintiff had a general bad reputation. It is a distinct and quite separate matter. 15.It is therefore convenient for me to first deal with Ds’ Discovery Summons. DS’ DISCOVERY SUMMONS The legal principles 16.The general principles applicable to an application for specific discovery are well established. It is convenient to adopt the following summary by Ng J in Jade’s Realm Ltd v Director of Land (Hong Kong Civil Procedure 2018 §24/7/2):-
17.Another pertinent principle is this. Although the pleadings and particulars will usually determine relevance to a matter in question, it may be wider than this: “the obligation to provide discovery… does not necessarily mean a matter on which issue has joined in the pleadings, but the documents must be matters to which an inference can properly be drawn that they are subject to controversy between the parties” (Wu Ching Sau v New World First Bus Services Ltd HCPI 767/2009, DHCJ Marlene Ng, [2010] HKEC 1393, unreported, at §66 and Hong Kong Civil Procedure 2018 §24/7/2). The documents sought in D’s Discovery Summons 18.They were itemized and set out in the Schedule to Ds’ Discovery Summons (“the Schedule”). 19.Not all the items in the Schedule are now in issue, as some of them, namely items 2 and 6 to 18 were voluntarily discovered after the issuance of Ds’ Discovery Summons by the plaintiff’s 3rd Supplemental List of Documents filed on 24 May 2018 (“P’s 3rd List”). Also, in the course of the hearing on 17 September 2018, the defendants indicated that they no longer pursued item 3. 20.What remains outstanding therefore are items 1, 4 and 5 of the Schedule:-
The plaintiff is in possession of the documents sought 21.It is not disputed that the documents sought in these items are in existence and are in the possession of the plaintiff. Issues raised in the pleadings relevant to Ds’ Discovery Summons 22.Relevant to the discovery sought are the following matters pleaded in some length in the Amended Defence by way of particulars of justification[2], which I paraphrase thus:-
23.I should mention that the proposed increase of management fees in December 2015 triggered another round of controversies which formed the immediate background to the writing and circulation of the said 4 letters. 24.In the Amended Reply, the plaintiff pleaded the following which are also significant. 25.Firstly, in response to the said paragraph 19(1A) of the Amended Defence, the plaintiff pleads positively in paragraph 8 ab iv of its Amended Reply that:-
26.Secondly, in the Amended Reply, there are pleaded 2 amounts as sums which the plaintiff agreed to “refund” and “not to charge” the owners of the Estate, in the following manner:-
27.These 2 pleas in paragraphs 8 ah i and 8 an iv, in my view, clearly raise the controversies as to whether these 2 sums had in fact previously been entered into the accounts of the Estate as being expenses of the Estate, and if so, how they were so entered, and whether they were justified as proper expenditures of the Estate; and if not, whether they should have been borne by the developer or its associated companies. DOCUMENTS SOUGHT UNDER ITEM 1 IN DS’ DISCOVERY SUMMONS 28.During the course of the opening speech by Mr Li, counsel for the defendants, it becomes apparent that the description of the documents sought - “the detailed books and accounts of the Estate from 2007 to 2016” - is imprecise and too wide and that the time period of “2007-2016” covers too long a period. Upon the defendants’ application which is not contested by the plaintiff, I allow the defendants to amend the description of the documents under this item to “the ledgers, management accounts and monthly statements of the Estate from 2007 to 2013”. 29.The plaintiff submits that discovery in the amended description ought not to be given for the following reasons. Irrelevant to any matter in issue, not probative, fishing? 30.The plaintiff claims that these accounting documents are not relevant to any issue and/or are not probative and/or it is a fishing exercise. 31.In his written submissions, Mr Chen, counsel for the plaintiff, referred to a selected number of pleas in the pleadings (not those set out above) and sought to analyze how the accounting documents are not relevant to them. With respect, whether the accounting documents sought may or may not be related to those pleas he referred to is neither here nor there, if they relate to other issues in dispute. I therefore do not find Mr Chen’s such analyses helpful and do not find it necessary to deal with them. 32.It is beyond dispute that the crux and origin of parties’ controversies lie in the large amounts of expenditures and therefore deficits incurred in the early years. The accounting documents sought (subject to limiting them appropriately) are clearly directly relevant. Without the accounting documents, the defendants could not even begin to understand, not to mention examine and find out, the true nature and purposes of these expenditures. 33.In my view, it is patently clear from the parties’ pleaded cases set out above that the accounting documents sought (again, subject to limiting them appropriately) are necessary for disposing fairly of at least the following issues in dispute:-
34.Mr Chen also submits that this is a fishing exercise and cites Gatley on Libel and Slander 12th ed. §31.6:-
35.As I conclude above, the documents sought are directly relevant to the above mentioned issues and controversies that are already pleaded. Therefore, they are not sought to fish for some other defence. I therefore reject the submission that this is a fishing exercise. Disallowed altogether as the class too widely described? 36.The thrust of this part of Mr Chen’s submission is this: as a general proposition, if the class of documents sought is too widely defined, the application for an order for specific discovery should be dismissed and that is the end of the matter. He cites in support the following short passage from David Khan Incorporated v Conway Stewart & Company Limited [1972] FSR 169:-
37.David Khan was a patent case. There the defendant sought a class of documents defined as “those relating to any transaction, negotiation, dispute or agreement between the plaintiff and the Mentmore Manufacturing Co Ltd (which had previously been a co-plaintiff)” concerning certain specified patents. These documents were said to be relevant in that “it was reasonable to infer that in such negotiations there had been an acknowledgement by the plaintiff that a Mentmore patent contained a prior claim to claims of the plaintiff’s patent”; when the court there observed that whether there was a prior claim was a matter of construction of the patents and was strictly a matter of opinion and parties’ own expression of it could carry weight so slight as to be a matter of de minimis. 38.David Khan therefore was just another instance of the application of the established principles set out in paragraph 16 above. It was clearly decided on its own facts. In my view, it does not support the general proposition contested for by Mr Chen. 39.I stress again that where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant. However, when it is shown that the class is described too wide, it remains a matter of discretion whether the discovery application should therefore be dismissed or whether discovery in appropriately defined or narrower terms should be ordered. 40.Regarding item 1, it is in my view very clear that the description of documents in its present amended form is still too wide and would include documents that are not relevant, in that the defendants seeks production of, among others, all the ledgers of all the accountsof the Estate. I have little doubt that such description would include ledgers of numerous other and sundry expenses that are outside the purview of parties’ present controversies. 41.That notwithstanding, in this case, I take the clear view that I should order discovery in appropriately narrower terms for the following reasons. Firstly, certain accounting documents in the possession of the plaintiff are clearly directly relevant (as I conclude above), which the plaintiff itself on several previous occasions allowed their perusal by the Owners’ Committee, but they thus far have refused to produce to the defendants. Secondly, dismissal of the application for discovery of this item would mean that the defendants would have to make yet another application later with the attendant delay and costs. This would not be in accord with the underlying objectives in O.1A, r.1. Thirdly, the plaintiff is not able to put forth any prejudice it might thereby suffer that cannot be compensated by costs. 42.Since this hearing has to be part-heard because of a matter connected to the plaintiff’s objection that the documents sought have already been produced, I have indicated to parties that I am minded to order discovery in appropriately narrower terms and ask the parties to attempt to work together to achieve that. I especially ask (however, not direct or order) the plaintiff to provide to the defendants a list of the “accounts” in its accounting system so that hopefully parties can agree to limit discovery to the ledgers of some of the “accounts” only. 43.However, in the resumed hearing on 5 October 2018, I am informed that the plaintiff has not done so and no attempt to work together along that line has been made. Parties and their legal representatives are reminded that under Order 1A r 3 they are under a duty to assist the court to further the underlying objectives, especially in the context of the court actively managing the case to encourage the parties to co-operate with each other (pursuant to Order 1A r 4(2)(a)). Failure to do so should attract adverse costs consequences. I will bear that in mind in the exercise of my discretion on costs. Discovery of the list of “accounts” in the plaintiff’s accounting system 44.In the plaintiff’s accounting software, the ledgers are called “accounts”. While the Owners’ Committee’s “auditing taskforce” did allegedly identified certain expenditures or groups of expenditures which are pleaded in paragraph 19(1M) of the Amended Defence, it is not clear in which of the “accounts” such expenditures or parts of them were recorded in. It is also not known which “accounts” were grouped together and reported as which item in the management accounts of the plaintiff. In other words, the list of “accounts” is a “map” essential to understanding the accounting system of the plaintiff and the accounting documents to be produced in relation to these expenditures and the 2 sums pleaded in the Amended Reply. Its production therefore is necessary for the fair disposal of the issues in dispute. 45.As said, despite my asking on 17 September 2018, the plaintiff has refused to make available this list. On 5 October 2018, the defendants formally apply to amend item 1 to include this list of “accounts”. The plaintiff objects. I allow the amendment. Having further heard the plaintiff and viewing it as necessary for the fair disposal of the disputes, I order its discovery. Class of documents sought have already been produced? 46.In the course of argument on 17 September 2018, the plaintiff submits that by the voluntary discovery by P’s 3rd List filed on 24 May 2018, the documents sought under this item were already produced. 47.However, from the papers placed before the court, the court cannot form the slightest idea as to what documents were actually discovered by P’s 3rd List. It is so because of these. 48.Under items 6 to 18 of the Schedule, the defendants sought discovery in similar terms as follows; and by way of example, I need only cite 3 of them:-
49.To provide voluntary discovery of documents corresponding to those sought under items 6 to 18 of the Schedule, the plaintiff listed items 203 to 215 in P’s 3rd List in similar terms, and by way of example, again I need only cite 3 of them:-
50.Such manner of describing the class of documents sought in a summons for specific discovery is entirely unacceptable. It is a trite requirement that the documents or the class of documents sought in an application for specific discovery must be identified with precision. They should not be identified or described by reference (or even multiple references, as in this case) to some other documents unless that is the only means that the document or the class of documents can be properly identified; but those instances should be very rare. An application for discovery with the documents sought so improperly described is liable to be summarily dismissed. 51.Such manner of describing the documents disclosed in P’s 3rd List is equally unacceptable, as such fails to comply with Order 24 r 5, which states that:-
I would leave it to the judicial officer in charge of case management on the next occasion to consider whether to expunge P’s 3rd List out of the court file as being not a proper list of documents. 52.In the result, what documents were actually produced under P’s 3rd List are not at all readily ascertainable. Moreover, such information has not been set out in any of the plaintiff’s affirmations, nor in its counsel’s written submissions, despite the fact that it is its ground of objection. On 17 September 2018, I adjourn the hearing of Ds’ Discovery Summons part-heard and proceed to hear P’s Summons to Expunge. I direct the plaintiff to take the initiative to list out the documents produced under P’s 3rd List so as to ascertain to what extent the documents sought under item 1 were actually produced; and hopefully parties can come to some agreement. 53.In the resumed hearing on 5 October 2018, the plaintiff only very generically describes 5 classes of accounting documents, that it says have been produced under P’s 3rd List. That is not the “listing out of the documents” that I directed. In order not to occasion another adjournment, the court briefly inspects the documents available - being the attachments to item 205, 210 and 215 in P’s 3rd List, as being some of the documents that were produced that purportedly correspond to the request under item 1 of the Schedule. They are voluminous and amount to over 1000 pages. It is found that the generic descriptions of the 5 classes of documents said to have been produced are in fact full of inaccuracies. The “Quarterly Income and Expenditures with ledgers of the Estate for the year 2007” said to have been produced in the attachments to item 205 in fact were not included. The accounting documents for some of the months said to have been included were missing. The so-called “ledgers” were “Account Transaction Reports” of certain “accounts”. The so-called “Balance Sheet of the Estate for the period from January 2009 to September 2009” being attachments under item 215 were in fact Consolidated Balance Sheets. In sum, I find unreliable the plaintiff’s such list of the 5 classes of documents said to have been produced. 54.More importantly, it is not known whether the “ledgers” or the “accounts” pertaining to the particular expenditures or groups of expenditures pleaded in paragraph 19(1M) of the Amended Defence were included. 55.In the circumstances, since the burden of making good the objection lies with the plaintiff, I find that the plaintiff has failed to do so. Discovery ordered under item 1 56.For the above reasons, I order discovery sought under item 1, but to be in terms more limited than its description under the Schedule. Having carefully considered the issues and controversies in dispute and bearing in mind the underlying objective of proportionality and ordering only those that are necessary for the fair disposal of the issues and controversies, I order the discovery of:-
57.I find the discovery of the management accounts necessary as I observe above that apart from the purpose of the various expenditures or groups of expenditures, how and where they were recorded in the books of the Estate is also relevant vis-à-vis the explanations about them, if any, that were given to the owners. 58.The parties also dispute as to the years the discovery of the management accounts should cover. 59.The plaintiff submits that it should cover only up to and including 2009, as the last sum in terms of time of the said 12 sums pleaded in paragraph 19(1M) of the Amended Defence occurred in 2009. 60.The defendants seek them up to 2013, but submit that the fallback position is that it should cover up to 2010. That is so as on present materials, the way the defendants come up with an estimate of the extra staff costs paid for the purpose of handing over flats to new owners (which costs they say should have been borne by the developer) is by comparing such expenditures to those in 2010 (when the handing over of flats to new owners was essentially completed) as the base figure. 61.I am of the view that it is fair to allow the defendants an opportunity to pursue their such point in the said manner. Discovery of the management accounts up to and including 2010 would therefore be necessary for its fair disposal. I therefore order discovery of the management accounts up to 2010 as per paragraph 56(2) above. DOCUMENTS SOUGHT UNDER ITEMS 4 AND 5 IN DS’ DISCOVERY SUMMONS 62.These two items can be dealt with together. 63.Under items 4 and 5, the defendants seek discovery respectively of “員工薪俸支出細明” (detailed accounts of staff salaries and allowances) of the Estate from 2007 to 2016 and “2007年12月至2013年薪金列表”. In the course of argument, Mr Li indicates that the defendants would now seek these documents up to the year 2011 only. 64.These documents have previously been provided by the plaintiff to the Owners’ Committee of the Estate to peruse, as follows:-
65.It is not seriously disputed that the defendants were not members of the Owners’ Committee at the time when the above documents were provided to the then Owners’ Committee to peruse. Significantly and in any event, copies of these documents have not been provided. 66.It can be recalled that these 2 items of documents relate to the defendants’ allegations that salary and allowance for staff were treated as liability of the Estate when in fact these staff did not work for the management of the Estate, but for handing over the properties to respective owners on behalf of the developer and for curing defects which were subject to the warranty of the developer. According to the defendants, such staff salary and allowance amounted to approximately HK$1,580,000 in 2007/2008, and approximately HK$550,000 in 2009, which they approximated by comparing such expenditures in 2007/2008 and 2009 with those of 2010 which are used as a base figure[9]. 67.As I understand it, Mr Chen submits that the discovery of the documents described under these 2 items is not necessary as at the time of the publication of the 4 letters, such staff costs no longer formed part of the deficit as the plaintiff has already agreed on 8 February 2010 to “deduct a total sum of HK$556,958.57 from the amount payable by the owners of the Estate”[10]. With respect, that is the point of view of the plaintiff only, which clearly is disputed by the defendants under paragraph 19(1M) of their Amended Defence, which as mentioned alleges that the amount involved totaled to over HK$2 million. 68.I am of the view that the documents sought are necessary for the fair disposal of this aspect of the parties’ controversies. However, as I mention in the paragraphs 60 and 66 above, the information disclosed by these documents for the year 2010 is now relied on by the defendants as the base figure, there is no other valid reason to extend their discovery to include the year 2011. I therefore only order their discovery up to 2010. COSTS OF DS’ DISCOVERY SUMMONS AND THEIR SUMMARY ASSESSMENT 69.At the end of the hearing and having heard submissions from parties, I order that the plaintiff do pay the defendants 70% of their costs with certificate for counsel to be summarily assessed. Below are my reasons for so ordering. 70.Mr Li asks that costs to follow the event. Mr Chen submits that costs should be in the cause or alternatively the defendants should be awarded only 30% of their costs. He relies on 2 matters. 71.Firstly, as shown by the filing of P’s 3rd List on 24 May 2018, the plaintiff has been willing to provide a substantial part of the discovery sought (items 2, 6-18 in the Schedule); but the defendants have not sought them by correspondence prior to the issuance of Ds’ Discovery Summons. There is some validity in this criticism. However, in the affirmation of麥錦全filed on behalf of the plaintiff on 14 May 2018, items 2, 6 to 18 were not addressed to, probably in anticipation of the voluntary discovery, such that no or little cost were spent by the plaintiff to oppose them. That said, such part of the defendants’ costs in preparing the application in relation to these items ought not be allowed. 72.Secondly, the plaintiff says that it has to an extent been successful in that it has narrowed the ambit of the discovery, especially in relation to item 1. That may be so. However, in the affirmations filed on behalf of the plaintiff and in the plaintiff’s written and oral submissions, the plaintiff’s position and all the arguments advanced were geared towards the complete dismissal of the application, which I hold against. Moreover, little (if any) constructive efforts were put forth by the plaintiff to assist in arriving at the appropriate ambit of discovery in terms of classes or categories of documents necessary to be produced to enable a fair and just resolution of the parties’ disputes. 73.I do not think these matters warrant the costs of this application to be tied to the ultimate success or otherwise of this action. Making such costs to be in the cause is not appropriate. 74.Considering these matters, the conducts of the parties including the failure by the plaintiff to cooperate as set out in paragraph 43 above and in the round, I think the fair costs order is the one set out above. 75.I have considered the defendants’ statement of costs dated 12 October 2018, the plaintiff’s objections dated 19 October 2018 and the defendants’ reply dated 23 October 2018. I accept the plaintiff’s objections to these limited extents: (a) the rate of the fee earner should be reduced from HK$3,860/hour, but to HK$3,460/hour, (b) the preparation of the index of the hearing bundle and the collating of documents can be done by a legal executive, (c) there should be some reduction in the hours under items B and C, and (d) there should be some reduction in the counsel fees charged but not to the extent advocated by the plaintiff. 76.In the round and by means of a broad-brush approach, I summarily assess the defendants’ costs of this application at HK$150,000. 70% of that is HK$105,000, to be paid by the plaintiff forthwith. DS’ 2ND AMENDMENT SUMMONS 77.By this proposed amendment, the defendants seek to re-amend their Amended Defence by adding the underlined part to the present paragraph 3:-
78.The proposed amendment adds the plea that the plaintiff previously had and currently has a general bad reputation in the real property management sector and pleads as particulars “reports” of 10 incidents involving the plaintiff. Roughly categorized, these 10 incidents, as reported, involve:-
79.The plaintiff objects to the proposed amendment on 2 grounds:
Insufficient particulars 80.The requirement to plead particulars of facts relied on in mitigation of damages in defamation cases, and to plead them with as much particularity as is reasonable having regard to the circumstances and to the nature of the acts alleged, is well settled. It is not seriously disputed by the defendants. As stated in Gatley on Libel and Slander §27.39 and §26.3:-
81.Mr Chen submits, and I agree, that clearly lacking in the proposed amendment are:-
82.Without these particulars, the plaintiff would not be informed as to the precise reports or incidents relied on by the defendants and would not be in a position to respond to them. 83.As said, this is the lesser of the objections. I turn to consider the main one. The exclusionary principles laid down in Scott v Sampson; Burstein v Times Newspapers Ltd 84.I can conveniently start with the case of Scott v Sampson[11]. 85.In that case, Cave J after reviewing the authorities held that (a) general evidence of reputation or bad character was admissible, but (b) evidence of rumours of and suspicions to the same effect as the defamatory matter complained of and (c) evidence of particular facts tending to show the character and disposition of the claimant were not. 86.The learned judge set out the principles underlying admitting evidence in (a) as follows:-
87.The principle for not admitting evidence in (b), as explained by Cave J, was this:-
88.As regards evidence in (c), the learned judge held:-
89.A main concern addressed by this general exclusionary rule is a matter of practical trial management – there is the risk, if such excluded evidence is admitted, of roving inquiries into the plaintiff’s character or disposition which would be hard to control, leading to trials within a trial[15]; while the evidence in category (c) tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation. In this regard and as acknowledged in the authorities, the court nowadays is better equipped with various case management powers to guard against this. 90.This general exclusionary rule, however, has never been absolute[16]. 91.In Burstein v Times Newspapers Ltd[17], the English Court of Appeal admitted for the purpose of mitigating damages evidence of particular facts which were directly relevant to the contextual background in which a defamatory publication came to be made even though they might include matters which were not causally connected with the publication of the libel, or which concerned the claimant’s general reputation, character or disposition, or which consisted of facts that in other circumstances might have been ingredients of a defence of justification. 92.In the subsequent Court of Appeal case of Turner v News Group Newspaper Ltd[18], it is clarified that:-
Discussion 93.Mr Chen submits that all the 10 incidents particularized in the proposed new paragraph 3 are either rumours and suspicions or are specific acts, within respectively categories (b) and (c) of the rule in Scott v Sampson. 94.In my view, of the 10 incidents particularized in the proposed paragraph 3, 8 of them fall foul of the rule in Scott v Sampson and are inadmissible, as follows. 95.The incident pleaded in sub-paragraph (i) clearly is a particular fact in an attempt to show the character or disposition of the plaintiff, and therefore to show the allegedly bad reputation it ought to have. It falls within category (c) in the rule of Scott v Sampson and is inadmissible. 96.The incident pleaded in sub-paragraph (vii) concerns a “report” that “an estate managed by the plaintiff was bundled with the broadband services provided by Hutchison Global …”. It is not at all clear what “was bundled with” means or is intended to mean. Of itself and without more (such as, Hutchison Global’s services were inferior to and yet more expensive then those offered by others), engaging Hutchison Global’s service in the estate managed by the plaintiff should not per se attract criticism. This incident is in the nature of a suspicion. In any event, this incident can best be a particular fact to show disposition. It is inadmissible. 97.Sub-paragraph (viii) pleads that an owner of an estate managed by the plaintiff had, through the Equal Opportunity Commission, sued the plaintiff for disability incrimination in the management of the estate. The proceedings were pleaded to have been commenced on or around August 2013. Yet now in October 2018, it is not pleaded whether the plaintiff was found guilty. For all we know, the allegations in the proceedings may be totally groundless. The mere fact that proceedings were commenced is in its nature a suspicion only; and as such, is inadmissible. 98.Sub-paragraphs (v), (ix) and (x)[20] plead that in 3 estates, the owners respectively “expressed dissatisfaction” and “were dissatisfied” and took steps to establish an owners’ incorporation (as opposed to removing the plaintiff as manager). For the below reasons, I hold these 3 incidents inadmissible.
99.Sub-paragraphs (iv) and (vi) plead 2 incidents in which the owners proposed to remove the plaintiff as manager. Presumably, the proposals were not taken further or were not unsuccessful, as otherwise it would have been so pleaded as in sub-paragraphs (ii) and (iii). As such, in my view,
I therefore hold that they are inadmissible. 100.I take a different view as to the 2 incidents pleaded in sub-paragraphs (ii) and (iii). In these 2 incidents, the plaintiff was actually being voted out and removed as the manager by the owners. These were concerted acts by the respective owners of these 2 estates; they are not rumours or suspicions. I think it very arguable, that by the acts of voting the plaintiff out, these owners were saying “we do not want the plaintiff to be the manager of our estate”; that these acts were expressions of the estimation in which the plaintiff stood in the opinion of those owners who belonged to a relevant sector of the public, namely owners of estates who used the service of building managers. In my view, they are therefore directly relevant contextual background within the Burstein’s case as matters so clearly relevant to the plaintiff’s reputation. 101.In relation to these 2 incidents, I think the practical concern of introducing “trials within a trial” or roving inquiries is relatively minor. It is unlikely that the fact that the plaintiff was removed would be contested. There may be some examinations as to the reasons for such removal and the percentage of the votes and so on – matters that clearly could be managed by the trial judge. 102.I also bear in mind that this is an application to amend pleadings to facilitate the determination of the real question in controversy, and should be allowed unless there is an obviously good reason not to do so or that the amendment is not necessary for disposing fairly of the matter. 103.By the above reasons, I do not hold the incidents pleaded in sub-paragraphs (ii) and (iii) inadmissible. Disposal 104.I will therefore order:-
105.I make the said costs order nisi since the amendment is an indulgence sought by the defendants, while I consider provisionally (not having heard counsel on this) that each party has won part and lost part of the application. This costs order nisi is to become absolute unless an application to vary is made by summons within 14 days of this decision. P’S SUMMONS TO EXPUNGE 106.By this summons, the plaintiff seeks to expunge a paragraph from each of the witness statements of the 1st, 2nd and 4th defendants, which so happens are all numbered as 74 (“Paragraph 74”). They are in exactly the same terms:-
107.The grounds relied on by the plaintiff are :-
Discussion 108.As said, the pleading requirement set out in paragraph 80 above is not seriously disputed by the defendants. 109.In light of my decision above that (a) the incidents pleaded in sub-paragraphs (i), (iv) to (x) of the proposed paragraph 3 of the Amended Defence are inadmissible under the rule of Scott v Sampson, and (b) the incidents pleaded in sub-paragraphs (ii) and (iii) are not inadmissible and leave to amend to introduce them is given, I order that such part of Paragraph 74 relating to sub-paragraphs (i), (iv) to (x), namely the 1st, 3rd, 4th, 6th to 9th and 11th rows of the table in Paragraph 74, be expunged from the witness statements of the defendants. 110.In the 10th row of the table in Paragraph 74, a report dated March 2016 in relation to the removal of the plaintiff as the manager in an estate in Cheung Sha Wan is averred to. However, this incident is not particularized under the proposed amendment to paragraph 3 of the Amended Defence. It is therefore not pleaded. I therefore order it to be expunged from Paragraph 74. 111.Having ordered them be expunged for the above reasons, it would not be necessary for me to consider whether they are scandalous, oppressive and/or embarrassing as the plaintiff complains. 112.In relation to the contents of the 2nd and 5th rows of the table in Paragraph 74, they relate presumably to the incidents particularized in sub-paragraphs (ii) and (iii) of the proposed paragraph 3. Having carefully considered them, I do not think they are scandalous, oppressive or embarrassing and I decline to expunge them on this ground. Disposal 113.In the result I order that the 1st, 3rd, 4th, and 6th to 11th rows of the table in Paragraph 74 be expunged from the witness statements of the defendants. 114.Since the plaintiff is not entirely successful, I make a costs order nisi that the plaintiff is to have 80% of its costs of this summons with certificate for counsel to be summarily assessed. This costs order nisi will become absolute in the absence of any application by summons to vary within 14 days after this decision is handed down. 115.For the purpose of summary assessment, in the event the costs orders (the ones at §§104 and 114), or any one of them, become absolute, the plaintiff is to lodge a statement of costs within 14 days then after, the defendants their objection within the next 14 days and the plaintiff its reply, if any, the next 7 days. 116.I thank counsel’s assistance rendered to the court. SUMMARY ASSESSMENT OF THE COSTS OF DS’ 1ST AMENDMENT SUMMONS 117.The amendment sought was the addition of a proposed paragraph 28A which consisted of one short sentence pleading that the plaintiff has a general bad reputation. No hearing bundle was necessary. No written submissions were prepared. The summons was set down as a 3-minute hearing which actually took about 10 minutes. The point about lack of particulars is trite and entails no research. 118.In the circumstances, I summarily assess the plaintiff’s costs at HK$8,000, to be paid by the defendants forthwith.
Mr Vincent S K Chen, instructed by Chung & Kwan, for the plaintiff Mr Taylor L K Li, instructed by JCC Cheung & Co, for the 1st, 2nd and 4th defendants [1] §10 of the Statement of Claim [2] Paragraph 19 of the Amended Defence [3] Paragraph 19(1A) of the Amended Defence [4] They are listed and particularized in the table in §19(1M) of the Amended Defence [5] §19(10) of the Amended Defence [6] per Budd QC at p 175B [7] P.290 of Hearing Bundle [8] P.292 and 293 of Hearing Bundle [9] Rows 4 and 9 of the table under paragraph 19(1M) of the Amended Defence [10] Pleaded in paragraph 8 ab i of the Amended Reply; paragraphs 26 to 31 of the plaintiff’s submissions [11] (1882) 8 QBD 491. Scott v Sampson was approved in a number of English cases, notably the Court of Appeal case of Hobbs v Tinling (CT) and Co Ltd and the House of Lords case of Plato Films Ltd v Spiedel; and applied in the local cases of Excel Concrete Limited v The Concrete Producers Association of Hong Kong Ltd HCA 938/2011 unrep 18 July 2013 DHCJ Marlene Ng and Sheldon Gary Adelson v Kate Okeeffe HCA 342/2013 unrep 12 August 2014 DHCJ Simon Leung [12] At p.503 [13] At p.504 [14] At p.505 [15] Lord Morris in Plato Films Ltd at 1148; May LJ in Burstein at para 35; Keene LJ in Turner at 3479B-E [16] Per Keene LJ in Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at 3481E [17] [2001] 1 WLR 579 [18] See footnote 16 [19] Per Keene LJ at 3484H to 3485C [20] I was informed by Mr Li for the defendants that incident (x) in fact refers to the present controversies between the owners of Apex and the plaintiff. However, since it has not been pleaded as such, I do not take that into account. | ||||||||||||||||||||||||||||||||||||||||||||||||||
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